And I probably won’t be buying any in the future. You might be wondering: “Why do I need to know that?” Read on!
I’m not a big fan of people trying to propertize speech by trademarking words or phrases that are used decoratively rather than as source identifiers in commerce. Law Profs Stacey Dogan and Mark Lemley wrote a great paper explaining why this is problematic called “The Merchandising Right: Fragile Theory or Fait Accompli?” It can be downloaded here. To greatly oversimplify: if you buy a tee shirt at Target that you know from the tag was manufactured by Russell Athletic Sportswear, the “Coca Cola” logo on the front is functioning as a decoration, rather than as a trademark. Stacey and Mark explain why this is interesting and important as a matter of trademark law.
Meanwhile: Section 1052 (a) of the Trademark Act (a.k.a. Section 2(a) of the Lanham Act) prohibits the federal registration of a trademark that “consists of or comprises immoral, deceptive, or scandalous matter…” This accords Trademark Examiners a lot of interpretive discretion. One consequence is that certain kinds of marks, such as those referencing homosexuality, may get rejected for registration at a disproportionately high rate. Feminist Law Prof Llew Gibbons has written an excellent article discussing this phenomenon in an article entitled “Semiotics of the Scandalous and the Immoral and the Disparaging: Section 2(A) Trademark Law after Lawrence v. Texas.” It can be downloaded here.
And now we get to the trademark dispute animating this post. According to this article in the LA Weekly, standup comedian Cathy Carlson has as a signature line in her act,”You cum like a girl,”which she “has emblazoned … in pink letters on tank tops, T-shirts and spanky pants, which she sells at outdoor street fairs and via her Web site (www.youcumlikeagirl.com).” She tried to obtain federal trademark registration for the words, but her application was rejected on Section 2(a) grounds. Here is an excerpt from the article:
Citing Section 2 (a) of the Trademark Act, Carlson’s application to register the phrase”You cum like a girl”had been refused on the grounds of being”scandalous”and”vulgar,”with the phrase’s offending verb defined as a”vulgar slang term for ejaculation at the time of orgasm.”Shanahan provided examples of similar rejections and explained why other attempts to register phrases with”cum”passed muster and Carlson’s didn’t. He also suggested why the word”orgasm”might make a suitable PG-13 replacement.
Even more problematically, to illustrate why he thought the word “cum” was inappropriately vulgar for trademark purposes, the Trademark Examiner e-mailed her an extensive series of pictures depicting women covered in ejaculate. Back to the article:
Carlson discovered the unusual gift of porn one morning two months ago when she found four separate pieces of correspondence from the U.S. Patent and Trademark Office in her personal e-mail account. In each were literally dozens of photographs of women covered in ejaculate and no letter of explanation.
â€œWhat does this have to do with my shirt?”Carlson remembers thinking.
Maybe, she thought, the sender : Patrick Shanahan, the examining attorney in charge of her case : had mixed up his prepositions.”It’s not â€˜You cum on a girl’s face,’ it’s â€˜You cum like a girl,’ you know?”says Carlson.”He’s completely missed the point of this shirt. So something that’s harmless and funny, he’s linked it to pornographic images? I don’t have photos on my shirt. I don’t have pictures of girls being ejaculated on their faces.”
Carlson is correct that Shanahan’s inability to conceptualize “cum” in any way other than a male ejaculating on a woman is disturbing, especially since cumming like a girl suggests an absence of semen altogether.
So, to recap:
1. Allowing people to trademark phrases they will use for merchandising rather than trademark purposes is problematic, but;
2. If people like Jeff Foxworthy are going to be permitted to do it, Carlson ought to be able to do so as well, out of fairness and also because;
3. Section 2(a) accords too much discretion to Trademark Examiners who may excercise it in ways that are unfair, not to mention sexist and/or homophobic.
Here’s why I won’t be buying any of Carlson’s tee shirts, though:
…her merchandise : she’s expanded her minibrand to also include”I cum like a girl”: is now being sold at Hustler Hollywood, a somehow fitting touch, given that the 12-store chain is owned by First Amendmentâ€“rights pioneer Larry Flynt.
And I’ll be damned if I will knowingly enrich Larry Flynt in any way.
Please note that while the First Amendment is certainly relevant to this case, there is nothing about the denial of federal trademark registration that precludes Carlson from using her phrase on clothing, or for any other purpose. If you want to see trademark law being used to stifle speech more directly and dramatically, go here, to Eric Goldman’s blog. The LA Weekly article is via Rox Populi.