H. Joyce Murchison

Trademark Trial and Appeal Board

Mar 24, 2014

No. 85748810 (T.T.A.B. Mar. 24, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: 3/24/2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
________

In re Murchison
________

Serial No. 85748810
_______

H. Joyce Murchison, pro se.

Benji Paradewelai, Trademark Examining Attorney, Law Office 101
(Ronald R. Sussman, Managing Attorney).
_______

Before Quinn, Ritchie and Wolfson,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
H. Joyce Murchison (“applicant”) filed, on October 9, 2012,
an application to register the proposed mark FOK’N HURTS (in
standard characters) for “stun guns” (in International Class
13). Applicant claims first use anywhere and first use in
commerce on February 1, 2008.
The trademark examining attorney refused registration under
Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), on the
ground that applicant’s proposed mark consists of or includes
immoral or scandalous matter.
Serial No. 85748810

2

When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
The examining attorney maintains that applicant’s proposed
mark FOK’N HURTS is the phonetic equivalent of the profane
wording “fucking hurts” which, according to the examining
attorney, is “presumably the commercial impression applicant
intended to convey about the stun guns.” (Brief, p. 7). In
support of the refusal, the examining attorney submitted
dictionary definitions, excerpts from pronunciation guides, file
history copies of two third-party applications, and portions of
third-party websites.
Section 2 of the Trademark Act, as amended, provides that
“[n]o trademark by which the goods of the applicant may be
distinguished from the goods of others shall be refused
registration on the principal register on account of its nature
unless it[] (a) [c]onsists of or comprises immoral, deceptive,
or scandalous matter.” What constitutes “immoral” or
“scandalous matter” has evolved over time, and our primary
reviewing court has observed that “we must be mindful of ever-
changing social attitudes and sensitivities.” In re Mavety
Media Grp. Ltd., 33 F.3d 1367, 31 USPQ2d 1923, 1926 (Fed. Cir.
1994). As the Federal Circuit stated: “Today’s scandal can be
tomorrow’s vogue. Proof abounds in nearly every quarter, with
the news and entertainment media today vividly portraying
Serial No. 85748810

3

degrees of violence and sexual activity that, while popular
today, would have left the average audience of a generation ago
aghast.” Id. During this societal evolution, however, the
basic legal framework for analyzing Section 2(a) refusals has
remained consistent.
In order to refuse a mark under this portion of Section
2(a), the Office “must demonstrate that the mark is ‘shocking to
the sense of truth, decency, or propriety; disgraceful;
offensive; disreputable; ... giving offense to the conscience or
moral feelings; ... [or] calling out [for] condemnation.’” In re
Mavety Media Grp. Ltd., 31 USPQ2d at 1926. More concisely, and
especially useful in the context of this case, the Office may
prove scandalousness by establishing that a mark is “vulgar.”
In re Fox, 702 F.3d 633, 105 USPQ2d 1247, 1248 (Fed. Cir. 2012),
citing In re Boulevard Entm’t, Inc., 334 F.3d 1336, 67 USPQ2d
1475 (Fed. Cir. 2003). See In re Runsdorf, 171 USPQ 443, 444
(TTAB 1971) (the statutory language “scandalous” has been
considered to encompass matter that is “vulgar,” defined as
“lacking in taste, indelicate, morally crude”). This
demonstration must be made “in the context of contemporary
attitudes,” “in the context of the marketplace as applied to
only the goods described in [the] application,” and “from the
standpoint of not necessarily a majority, but a substantial
Serial No. 85748810

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composite of the general public.” In re Mavety Media Grp. Ltd.,
31 USPQ2d at 1925-26.
Where the meaning of a proposed mark is ambiguous, mere
dictionary evidence of a possible vulgar meaning may be
insufficient to establish the vulgarity of the mark. In re Fox,
105 USPQ2d at 1248 (citations omitted). But where it is clear
from dictionary evidence “that the mark[] as used by [the
applicant] in connection with the [products] described in [the]
application” invokes a vulgar meaning to a substantial composite
of the general public, the mark is unregistrable. Id. Whether
applicant intended the mark to be humorous, as applicant asserts
in the present case, or even whether some people would actually
find it to be humorous, is immaterial. In re Luxuria, s.r.o.,
100 USPQ2d 1146, 1149 (TTAB 2011); Boston Red Sox Baseball Club
LP v. Sherman, 88 USPQ2d 1581, 1588 (TTAB 2008).
The determination that a mark comprises scandalous matter
is a conclusion of law based upon underlying factual inquiries,
and the burden of proving that a proposed mark is unregistrable
under Section 2(a) rests with the Office. In re Mavety Media
Grp. Ltd., 31 USPQ2d at 1925.
A “stun gun” is defined as “a weapon designed to stun or
immobilize (as by electric shock) rather than kill or injure the
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especially to show anger.” (macmillandictionary.com); “damned;
confounded (used as an intensifier).” (Random House Unabridged
Dictionary (1997)). We also take judicial notice of the
following dictionary definition of “fuck” which states under
“Usage”: “Despite the wideness and proliferation of its use in
many sections of society, the word fuck remains (and has been
for centuries) one of the most taboo words in English. Until
relatively recently, it rarely appeared in print; even today,
there are a number of euphemistic ways of referring to it in
speech and writing, e.g., the F-word, f***, or f--k.” (The New
Oxford American Dictionary (2d ed. 2005).
The term “fok” has been “defined” as follows: “See also
fuck. Can be used in any for [sic] of anger or rudeness”; “an
act of sexual intercourse; fok around; fok off; fok up; Slang,
(used to express anger, disgust, annoyance, impatience,
peremptory rejection, etc., often fol. by ... a pronoun, as you
or it.); Idiom, give a fok, Slang, to care; be concerned.”
(urbandictionary.com).2

2 We recognize the potential for uncertainty in an online dictionary
definition and therefore, in considering its probative value, look to
whether an opportunity to rebut the evidence was afforded. Applicant
had the opportunity in this case to rebut the dictionary definitions
from Urban Dictionary by submitting other definitions that may call
into question the accuracy of these particular definitions. Inasmuch
as applicant did not rebut this evidence with any alternative meanings
of “fok” or “fok’n,” we have considered this evidence. See In re Star
Belly Stitcher, Inc., 107 USPQ2d 2059, 2062 n.3 (TTAB 2013).
Serial No. 85748810

7

The examining attorney made of record the following third-
party uses of “fok’n”:
He was on fok’n fire.
(democraticunderground.com)

Holy fok’n shite batman
(apriliaforum.com)

Fok’n censorship. Lol @ confused people.
(bust-video.info)

So, for all of you bumbling fok’n fools who
cheerlead about a BULL market, think and
read between the lines.
(elitetrader.com)

Blitty, we have a fok’n problem.
(gamelive.com)

I honestly love this fok’n story so much!
(fanfiction.net)

They don’t even know how to tie their own
fok n shoes
(streetbonersandtvcarnage.com)

In fact they should make a Pride Oreo that
look like this!!! I bet they’d taste fok’n
amazing.
(twicsy.com)

It is plain, as shown by the above evidence, that the term
“fok’n” is regarded and used as a vulgar slang alternative for
the term “fucking” (or “fuck’n”) as in the phrase “fucking
hurts.” There is no evidence that the proposed mark FOK’N HURTS
would invoke a different, non-vulgar meaning when used in
connection with applicant’s stun guns or in the marketplace for
such goods. Rather, if anything, the use of the proposed mark
Serial No. 85748810

8

in connection with applicant’s stun guns reinforces the vulgar
meaning, namely to emphasize in a vulgar manner the high degree
of hurt or pain caused by the goods. While we recognize, as
noted earlier, that social attitudes and sensitivities are ever-
changing, the evidence is sufficiently contemporaneous with the
examination of the present application to reflect contemporary
viewpoints. See In re Luxuria, s.r.o., 100 USPQ2d 1150.3
The record also includes pronunciation guides showing that
in English the weak form of any vowel, including the letter “o,”
is the “schwa” or “uh” sound (represented by “ə” in
pronunciation guides). (oed.com (Oxford English Dictionary);
pronuncian.com). According to the examining attorney, who also
relies on dictionary entries to show the pronunciation of
certain words, the “o” in applicant’s proposed mark, when
spoken, would make the “uh” sound, such as the “o” in the words
“love” (shown as “ləv”), “another,” “dozen,” “seldom,” “above,”
and “gallop,” among others.4

3 The examining attorney also introduced the file histories of two
third-party applications, to register the terms FOKYEAHDUDE and FOKNO,
which were abandoned after being refused registration under Section
2(a) on the ground that the applied-for marks were immoral or
scandalous under Section 2(a). The examining attorney highlights
these applications to make the point that the examination of the
present application is consistent with the examination in these other
abandoned applications. These applications are entitled to no weight.
See In re Luxuria, s.r.o., 100 USPQ2d at 1151.

4 The Urban Dictionary listings for “fok” do not show any
pronunciation.
Serial No. 85748810

9

Although we have considered this evidence bearing on the
likely pronunciation of the terms “fok” and “fok’n,” we
recognize, as so often stated, that there is no correct
pronunciation of a mark because it is impossible to predict how
the public will pronounce a particular mark. See, e.g., In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir.
2012). Consumers may pronounce the proposed mark differently
than intended by applicant, or differently than what the
examining attorney contends. Suffice it to say, however, any
minor differences in the sound between the terms “fok’n” and
“fucking” may go undetected by consumers. No matter which way
the term “fok’n” is pronounced, it will sound similar to
“fucking” (or “fuckin/fuck’n”) to some degree. As we have noted
regarding the commercial impression, when viewed in relation to
applicant’s “stun guns,” we find that applicant’s proposed mark
would likely be pronounced “Fuck’in Hurts.”
Applicant contends that “fok’n is not even a word,” and
further argues as follows:
The pronunciation of the word Fok’n is
pronounced with a long “O” such as in the
word home. This is how I pronounce the word
and as members of the public have pronounced
the word back to me – unprompted.

[T]he letter “O” does not have the
pronunciation of “uh” or “ah” as the
original examiner attempts to make it. The
original examiner is wrong to conclude and
the examiner-attorney wishfully interpreted
Serial No. 85748810

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the word FOK’N as a phonetic equivalent of
the word fucking (the attorney’s term not
mine) would be laughable if it weren’t
presented so ignorantly.

The idea that my application is somehow
contrary to current societal norms is wrong.

By using some reference to a court case from
1927, I wonder if anyone reads a newspaper,
peruses the internet or just looks out the
window. Our country is not the same as in
1927. To use this mind set to deny my
application in 2013 is absurd.
I would hope the [Board] would use more
commonsense to determine the name I seek to
trademark is not offensive; but, FUNNY and
makes customers remember and even promote my
small business.

I must also repeat that if my search for a
registered trademark is denied, then all of
the other trademarks registered as submitted
in my supporting Exhibits, must be revoked
for the same reasoning. It seems the First
Amendment was alive and well for those
mentioned in exhibits, it should be alive
for me as well.

If the various Exhibits have been approved
without the personal subjective belief
system of the original examining attorney
concerning my application, then my
application must be approved. Otherwise,
there appears to be conflicting rules and
non[-]objective reasoning for approving
trademark applications. If this is the case
then I question whether my application was
treated with discrimination in some form.
(Brief, pp. 1-2)(emphasis in original).

In connection with its “state of the register” argument and
what applicant perceives to be unequal treatment based on the
registrations of marks similar to the one applicant seeks to
Serial No. 85748810

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register, applicant points to the following third-party
registered marks: PUCK-IT; FRIGGIN and design; AIRSCREW; FRIG
U; FUCHS and design; FREAKIN; FRICKIN’; SCREW*D; WTF; PROSCREW;
and THE F WORD. In each instance, applicant also submitted
dictionary-type evidence to show that each of the registered
terms, in whole or in part, is an alternative form of the term
“fuck” or “fucking.” Applicant ultimately asks that the Board
“will look at [her] request for what it is ... humor tied to
making a business grow.” (Reply Brief, p. 2).
The examining attorney offered a detailed response in
addressing each of these registrations, an assessment with which
we agree. We note that none of the registered marks comprises,
in whole or in part, the term at issue herein, namely “fok’n”
(or “fok”). The fact that different terms are included in
registrations casts no light on the public perception of the
term “fok’n” as used by applicant in its proposed mark.
Moreover, none of the cited marks is as close to the terms
“fuck” and “fucking” as the term “fok’n” in overall commercial
impression. Words such as “friggin,” “freakin” and “frickin”
may be euphemistic expressions for the term “fucking”; when
these terms are spoken, however, no one is likely to hear
anything close to “fucking” (or “fuckin/fuck’n”). The term
“fok’n” bears a similarity in sound (no matter how it is
pronounced) to the term “fucking” (or “fuckin/fuck’n”) that,
Serial No. 85748810

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quite simply, the other terms do not. Further, as often stated,
each case is decided on its own facts. See In re McGinley, 660
F.2d 481, 211 USPQ 668, 672 (CCPA 1981). “Even if all of the
third-party registrations should have been refused registration
... such errors do not bind the USPTO to improperly register
Applicant’s marks.” In re Shinnecock Smoke Shop, 571 F.3d 1171,
91 USPQ2d 1218, 1221 (Fed. Cir. 2009), citing In re Boulevard
Entm’t Inc., 67 USPQ2d at 1480. See In re Nett Designs Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if
some prior registrations had some characteristics similar to
[applicant’s] application, the PTO’s allowance of such prior
registrations does not bind the board or this court.”).
We would be remiss if we did not comment on one troubling
aspect of applicant’s prosecution of her application,
specifically, applicant’s personal attack on the examining
attorney. However, so as to be clear, applicant’s comments have
had no bearing on our determination of the substantive issue on
appeal.
During the prosecution of the application, applicant stated
(Response, March 28, 2013)5 that the refusal is “nonsense,” and

5 The communication (not accompanied by any fee) was addressed to Ms.
Deborah Cohn, Commissioner for Trademarks, rather than to the
examining attorney. This communication properly was considered as a
timely response to the Office action dated February 8, 2013, and not
as a petition to the Commissioner. Substantive issues that arise in
ex parte examination are not proper subject matter for petition, and
Serial No. 85748810

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that she took “great umbrage in the fact [that] the denial was
made by an obvious non English as a first language attorney.”
In concluding this one and only response filed during
examination, applicant also stated:
In the case of fairness, though, please
refund my original fee due to the
incompetence of the original examiner. As a
lawyer he or she may make a fair custodial
engineer (I apologize to all of the
custodial engineers I just insulted).

I am a small businesswoman trying to grow my
business, protect my creative ideas and use
these ideas to enhance my product and
increase sales which translates to more
income and more taxes. With a seventeen
(17) trillion dollar plus national debt, I
should think the USPTO would like to help
and encourage people to succeed not give
them the Chicago salute.

Suffice to say that applicant’s comments did nothing to advance
the substantive prosecution of her application. The USPTO and
the Board requires all parties, whether represented by counsel
or proceeding pro se, “to conduct their business with decorum
and courtesy.” Trademark Rule 2.192. In any future contact
with the USPTO, applicant should refrain from ad hominem attacks
on USPTO personnel.
We find that the examining attorney’s evidence is fully
sufficient to support the refusal that applicant’s proposed mark
FOK’N HURTS is a vulgar slang form of “fucking hurts,” and that

may be reviewed only by the Board on appeal. See TMEP 1704 (8th ed.
Oct. 2013).
Serial No. 85748810

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a substantial composite of the general public would view it as
such. Accordingly, we conclude on the record evidence presented
that the applied-for mark consists of or comprises immoral or
scandalous matter under Section 2(a).
Decision: The refusal to register is affirmed.