The Fuck Brief

by Marc John Randazza

The Fuck Brief, by Marc Randazza

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

Applicant	Cybernet Entertainment, LLC
Mark	Fuckingmachines
Serial Number	78/680513
Examining Attorney:	Michael Engel
Law office	107

_________________________________________/

Amendment and Response to Office Action

AMENDMENT AND RESPONSE TO OFFICE ACTION

Action

ACTION

This Amendment and Response to Office Action is offered in reply to the Office Action taken on February 22, 2006 regarding Serial Number 78/680513.

Amendment to Application

AMENDMENT TO APPLICATION

Please delete the current description of goods and services in International Class 41 and replace it with the following:

Entertainment, instruction, and commentary of an erotic/sexual nature, created by and for adults only, presented in images, recorded audio, recorded video, transmitted over the internet a website with access limited to adult viewers, excluding any use of the Mark other than in media or venues where erotic and adult-oriented content is provided.

AMENDMENT OF SPECIMEN

Applicant responds to the examiner's finding that the original specimens were not acceptable by submitting substitute specimens for the mark "fuckingmachines." These substitute specimens are attached as composite Exhibit A. A Declaration in support of these substitute specimens is attached as Exhibit B.

RESPONSE TO OFFICE ACTION

One man's vulgarity is another man's lyric

A. Introduction

The particular online publication that the Application seeks to protect, "Fuckingmachines.com" (with the trademark registration applied for) constitutes protected speech within the meaning of the First Amendment to the United States Constitution.

The blanket theme of the rejection is the examiner's statement:

"Fucking" is an offensive and vulgar reference to the act of sex.

The Applicant respectfully challenges this characterization of the word "fucking" and its allegedly "offensive and vulgar" root: "fuck." Fuck means literally "to copulate."^[1] Nevertheless, this much-maligned four-letter word has no intrinsic meaning.^[2] Fuck play a role as a figurative term, for example, "to fuck" can also mean "to deceive."^[3] It is a word of force that can assist us in our expressions of joy when used as an infix, as in abso-fucking-lutely^[4] Fuck helps us express rage when we scream "fuck you" at a football referee, or at a motorist who has just cut us off in traffic. Fuck can help us express pain, as it is quite frequently the first thing out of most men's mouths when they strike their thumb (accidentally) with a hammer. Fuck is a vehicle for our disappointment, when we see that our report card is not as good as we had hoped, or when our significant other is late for dinner, or leaves us all together. Fuck is an old friend, who can always make us laugh. "This girl's fit for a strait-jacket. I mean she's fucked three ways to the weekend. But you know what, Father? I dig it!"^[5]

How many times did we double over in laughter as children when we heard Eddie Murphy call someone a motherfucker? If the undersigned is dating himself, then substitute Lenny Bruce, Dave Chappelle, or Carlos Mencia. The bottom line is, if you live in America and you haven't laughed at the word "fuck," you probably have no sense of humor – and you certainly are not in the mainstream.^[6] It would be pretty fucked up if the most easily offended fringe of society dictated "morality" for the rest of us.

Fuck (if we accept the Examiner's initial determination) is an offensive and vulgar reference to the act of sex. However, it can also be a reference to playful sex, used by even the most proper women to describe their favorite pair of shoes as "fuck me boots" or "fuck me heels."^[7] In fact, a Google search for these terms (with and without hyphens) reveals a staggering number of personal blogs, written by young women, who brag about their "fuck me shoes."^[8] To these women, it appears that "fuck" is neither vulgar nor offensive, but empowering.

Fuck is, of course, at home in our bedrooms. Many normal, healthy, and happy Americans will gaze at each other with "fuck me eyes,"^[9] or as the movie Wedding Crashers put it, "eye fuck" each other.^[10] (Memorable Quotes from Wedding Crashers is attached as Exhibit C).

Men and women use "fuck" to express passion, desire, and even love. When interviewed about her empowering experience with erotic modeling, one model (a feminist and a lesbian) commented that the mood she was searching for was to communicate the thought, "Love me, fuck me, I am beautiful, I am yours."^[11] Perfectly healthy people consider the act of a woman whispering in her partner's ear, "I want you to fuck me" as anything but vulgar.^[12] "Fuck me"^[13] or even "fuck me harder"^[14] could hardly be held to be offensive or vulgar when expressed in the spirit of seduction and not in the spirit of insult or degradation.

Even if the term were "offensive" or "vulgar," which the Applicant denies, these are not the standards for rejection under section 2(a).^[15] In order to deny registration, the Examiner must establish that the mark comprises immoral, deceptive, or scandalous matter.^[16]

Prior to presentation of the Applicant’s arguments in full, the Applicant would like to grant the podium to Justice Harlan, a revered member of the United States Supreme Court, writing for the majority in the landmark Supreme Court case, Cohen v. California.^[17]

[W]hile [fuck], the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another man’s lyric.^[18]

What can better illustrate our profoundly held national value that ideas are to be nurtured and protected than Justice Harlan’s tribute to tolerance and moral neutrality? The Applicant asks that the Examiner understand what is at stake in this seemingly humble case. This is not a case about the word "fucking" so much as it is a case about tolerance, evolution, and expression.

With that established, the Examiner must step backward from his own feelings about this maligned word, step backward from any baggage that it may carry for him, and step into the light, warmth, and beauty of our Constitution and our rule of law. Once the Examiner is there, the Examiner will agree that it is his duty to reverse his initial determination, and to permit the Mark to be published for opposition.

B. The Applicant, and the Applicant’s socio-political perspective

The Examiner’s initial determination misinterprets the Applicant’s intention.

Though "FUCKING" has other meanings, the nature of applicant’s services clearly indicate that the sexual meaning of the word was intended.

The Applicant proposes that the Examiner’s determination as to the Applicant’s intent is irrelevant. The use of the word is multi-meaninged, but whether the sexual context was intended has no bearing upon the Application, nor upon this Appeal.

Applicant believes that the human body is a thing of beauty to be celebrated, and Applicant contends that sexual expression transmits an important message of eroticism, body acceptance, and sexual freedom. Additionally, Applicant contends that the female orgasm is frequently ignored in erotica, and that traditional erotica has often displayed women as objects to be used, much like machines, for the sexual gratification of men. Applicant’s publication uses machines to bring about the female orgasm in a number of ways, by use of machines specifically designed for this purpose. These machines have the ability to bring formerly non-orgasmic women to the point of sexual ecstasy, and thus release them from lifetimes of sexual dissatisfaction and repression. Applicant’s publication demonstrates these devices and techniques for the enjoyment and instruction of its subscribers, and its title plays upon the imagery and terms in a purposeful manner.

This erotic message has a political component as well as its obvious sensual and instructional components, as the issue of governmental regulation of human sexuality is an ongoing matter of public concern and discourse, as is the suppression of female sexuality.

The erotic expression offered by Applicant (and sought to be protected as a legitimate online publishing business) is not intended to be, nor is it, obscene, as measured by contemporary community standards. Applicant does not intend this expression to appeal to any prurient interest. Applicant intends its works of expressive art to be expressions of eroticism, instructional, and demonstrative of techniques for the achievement of orgasm, as a statement of criticism toward repressive sexual attitudes; as well as an expression of acceptance of sexual practices that are, while outside the traditionally-defined “mainstream,” are nonetheless enjoyed, experienced, and well within the bounds of the sexual preferences of a significant number of people in the United States and worldwide.^[19]

Applicant’s works communicate a message that challenges the opposite message that is put forth by puritanical and repressive elements of society. Applicant’s choices are as much an act of political resistance as they are works of art and erotica.^[20] Applicant’s publication challenges outdated, puritanical notions that are rife with the repressive intent of subjugating women by denying them expressions of messages designed to celebrate and affirm the power of female sexuality.^[21] Some cultures engage in physical mutilation of girls in order to control the female orgasm, and thus to control women in general. Our culture, while perhaps more refined in its methods, seeks a no less ignoble goal. Fucking Machines is part of the counterweight to these forces.

As a form of protected commercial speech, Applicant has a clear legal right to offer or engage in expressive activity of this nature, for the purpose of celebration, communication, and socio-politically revolutionary expression. If this challenge to a puritanical mentality toward sexual conduct, expression, and pleasure is threatening to some – this is to be expected. However, this threat should not be misinterpreted as "immoral" or "scandalous." Nor should this "heckler’s veto" be granted to place Applicant in a disfavored state with respect to the benefits the government confers upon the Applicant and similarly situated businesses and persons. It has long been held that the government may not treat expression differently because of disagreement with the underlying message. It is a less entrenched, but equally controlling, legal principle that laws based on "morality" are no longer permissible absent the government meeting a heavy burden.^[22]

B. America no longer finds "fucking" to be immoral or scandalous.

The Examiner will note that the mark must be examined in the context of the current attitudes of the day. See In re Mavety Media Group Ltd., 33 F.3d 1367, 31 USPQ2d 1923 (Fed. Cir. 1994). It is under the lens of the moral values and mores of contemporary society in which the word must be viewed. See In re Thomas Laboratories, Inc., 189 USPQ 50, 52 (TTAB 1975) ("[I]t is imperative that fullest consideration be given to the moral values and conduct which contemporary society has deemed to be appropriate and acceptable.").

The fact is that when Section 2(a) was written, it was a different day and age. In 1905, matters of public morality were still reeling from neo-Puritanical Victorian influence. The moral values and mores of contemporary society certainly tolerate "fucking" to a great level.

In 1971, in Cohen v. California, Mr. Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words "FUCK THE DRAFT." His subsequent arrest by offended police officers led to the determination that "FUCK THE DRAFT" was protected speech, and Mr. Cohen could not be prosecuted for it.

Although the rise of "fuck" from a word reserved for use in longshoremen’s taverns and houses of ill repute was already well under way in 1971, Mr. Cohen’s case demonstrates that even the highest court in the land, in a far more conservative age, did not consider it to be so scandalous or immoral that it deprived Mr. Cohen of his right to wear this word emblazoned on his jacket in a courthouse.

Since then, "fuck" has gotten closer and closer to the dinner table, and certainly should no longer be forced to sit outside in the rain, while we all say it, use it, laugh at it, whisper it, and embrace it.

1.American Popular Culture not Only Tolerates, but it Embraces "fuck"

In the year 2006 (in fact well before) the fact is, "fucking" can not be considered to be scandalous or shocking to very many people anymore. Our President, an avowed Born-Again Christian uses fuck liberally.^[23] And the Vice President’s use of "fuck" is a common butt of late night comedy.^[24] Senator John Kerry said, in an interview with Rolling Stone, "Did I expect George Bush to fuck [The Iraq War] up as badly as he did? I don't think anybody did."^[25]

Howard Stern, dogged for years by the FCC and its attempts to impose its unelected board’s impression of "decency" found himself under constant attack in recent years. As a result, Stern left terrestrial radio for the freedom of satellite radio.^[26] (Lest the Examiner point to the number of FCC complaints as an indication that Stern’s antics were disfavored by a large number of people, Stern never uttered "fuck" on terrestrial radio, and his "indecent" speech was usually complained of by organized phone banks.)^[27]

Interestingly enough, with Stern’s departure, his replacements have seen marked drops in listenership. At the same time, Stern’s move to Sirius Satellite Radio has brought millions of new subscribers to the medium alongside ubiquitous use of the word "fuck."^[28] See Exhibit D.

Lest the Examiner begin to believe that Stern, or comedians have a monopoly on the word "fuck" on Satellite Radio, the band Buckcherry recently recorded "Crazy Bitch," which they did not intend to release as a single.^[29] However, once the unedited song and its lyrics that include "You're crazy but I like the way you fuck me!" reached XM and Sirius, it became the one of Satellite Radio’s most requested songs.^[30] See Exhibit E for the song lyrics.

When it comes to entertainment, we could be accurately described as a "fuck tolerant society." Samuel L. Jackson, Joe Pesci, Robert De Niro, and Al Pacino, are four of America’s most beloved actors, and their gratuitous use of the word "fuck" is hardly a cause of national shame, but these quotes have made these actors iconic.

• "This is paradise, I'm telling you, this town is like a great big pussy just waiting to get fucked."—Al Pacino in Scarface
• "I make you laugh, I'm here to fucking amuse you?"—Joe Pesci in Goodfellas
• "Listen you fuckers you screwheads, here's a man who would not take it anymore, a man who stood up against the scum, the cons, the dogs, the filth, the shit. Here is someone who stood up."—Robert DeNiro in Taxi Driver.

And who could possibly live and breathe in America, and not be able to identify this iconic scene from Pulp Fiction?

Jules: Does [Marsellis Wallace] look like a bitch?

Brett: What?

Jules: *Shoots Brett in the shoulder* Does he LOOK like a bitch?!

Brett: No!

Jules: Then why'd you try to fuck him like a bitch, Brett?

The Movie Casino features the word "fuck" 398 times, in a film that is 178 minutes long, or 2.24 "fucks per minute." This isn't the undersigned's terminology. See List of Films that Most Frequently use the Word Fuck, http://en.wikipedia.org/wiki/List_of_films_ordered_by_uses_of_the_word_%22fuck%22 (attached as Exhibit F). Jay and Silent Bob Strike Back, 248 fucks, 2.38 fucks per minute. Platoon, a mere 159 fucks, or 1.56 fucks per minute. White Men Can't Jump, 141 fucks, and 1.21 fucks per minute. A full list of the films that most frequently use "fuck" is attached as Exhibit G.

This is not limited to the big screen, nor is it limited to male-oriented media. Sex and the City, a critically acclaimed HBO series uses the word with great artfulness in a post-feminist manner.

I was once with a guy the size of one of those little miniature golf pencils. I couldn't tell if he was trying to fuck me or erase me.

Sex and the City, Episode 12, "O Come all Ye Faithful." See Exhibit H.

As noted above, women are certainly making empowered usage of the word "fuck," (see discussion of "fuck me shoes" supra). "Fuck buddy," is an almost exclusively female term for a "casual relationship," or what men might refer to as a "booty call." Again, Sex and the City provides an excellent illustration:

Carrie: A fuck buddy is a guy you probably dated once or twice and it didn't really go anywhere, but the sex is so great you sort of... keep him on call.^[31]

This brief could go on for thousands of pages, if the undersigned were prepared to burden the examiner with months of reading on the subject. Suffice to say that the Examiner should take notice that "fuck" is accepted, and even beloved. Perhaps if you sent out a survey to your local community asking if they love the word "fuck," you might get one opinion, but Americans vote with their wallets. We buy subscriptions to Satellite Radio by the millions and then request "Crazy Bitch" again and again. We spend millions of dollars at the movies, and aside from a very small minority, we don't mind if the word "fuck" is tossed about with great aplomb, and "fuck" in a movie certainly never cost anyone an Oscar. Sex and The City is more than a TV show, it is a phenomenon among young professional neo-feminist women. Yet nobody is scandalized by Women are for friendships, men are for fucking.^[32]

THE RELEVANT MARKETPLACE

Even if the Mark were immoral or scandalous, this determination should only be made "in the context of the marketplace as applied to goods or services described in the application."^[33] Therefore, even if the Examiner believes that "fuck" or "fucking" is still of such talismanic power that it would shock a substantial portion of the American public (a superstition that should be dispelled above), then the Examiner could simply look at the relevant marketplace–instead of the marketplace as a whole.

This approach is long-embraced in Trademark Law. See In re Hershey, 6 USPQ2d 1470 ("to determine whether a designation is properly refused as scandalous, the mark must be considered in the context of the marketplace as applied to the goods or services described in the application"). And, this approach is in line with other forms of regulation of expression. For example, in Ginsburg v. New York, the United States Supreme Court affirmed the conviction of a shopkeeper who sold pornography to a child.^[34] However, this case embraced the notion that the marketplace in general (including children) could tolerate a bar on certain types of expression, while the marketplace consisting only of adults would not tolerate such restrictions.^[35] This very same perspective was embraced by Reno v. ACLU.

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

With this in mind, if the Examiner is uncomfortable determining that we have, as a nation, embraced "fuck," then the Examiner may narrow the relevant marketplace to either the internet, or to the adult internet.

1.The internet community tolerates "Fuck" more than other segments of society.

In the alternative, if the Examiner would like to narrow the study from America in general to simply the American internet user, the Examiner will find that "fuck" is even more accepted on the internet than in the terrestrial world. If we compare the number of Google searches for the following terms: fucking, eating, sleeping, living, and dying, it appears that Americans are most preoccupied with living, but after that, fucking beats out the other essential gerunds by placing a strong Second in this five way race, and at one point in January 2006, "fucking" actually surpassed "living."^[36] See Exhibit I.

living fucking eating sleeping dying

If the examiner does not have the benefit of seeing the graph in color, the lines are listed in top to bottom order, with "living" as the top line, and "dying" at the bottom. Of course, searches for "living" are not limited to that one term. A user could have searched for "Martha Stewart Living" or "Living in Chicago" and contributed to the search volume, just as one could have searched for "fucking aristocrats" or "fucking brilliant." However, the Examiner can not escape the fact that if the word "fucking" has been typed into the Google search engine more times than "eating" "sleeping" or "dying", then the Applicant would not be incorrect in stating that "fucking" is not as scandalous or shocking as some may believe–especially not in the internet context. Lest the Examiner believe that these queries are out of context, the Applicant provides the following–a comparison between "fucking" and "making love." See Exhibit J.

fucking "making love"

While The Daily Californian asked its readers what the difference is between "fucking" and "making love,"^[37] and got a number of varied philosophical responses (demonstrating acceptance of the term, "fucking"), an analysis of Google searches shows that we can actually finally quantify this age old question–billions of Google searches.

Further evidence of "fucking" beating "making love" is evidenced by the sheer number of web pages that contain the two terms. There are approximately 92,700,000 web pages that contain the term "fucking," compared to 4,340,000 that contain "making love."^[38] This does not indicate that we find "fucking" to be immoral or scandalous anymore – in fact, it seems that we are more uncomfortable with love than with fucking. All of the above Google trends charts were limited to United States IP addresses–demonstrating that in contemporary America, we appear to be quite comfortable with "fucking." One commentator has even said that fuck "is a more commonly used word than mom, baseball, hot dogs, apple pie, and Chevrolet."^[39]

2.The further narrowed relevant marketplace would not find the Mark to be immoral or scandalous.

Given the limitations placed on the relevant channels of trade in the description of goods and services pursuant to the Applicant's amendment, the contours of the marketplace should be comfortably demarcated far from any territory where a potential viewer would find the use of the term "fucking" to be scandalous.

Entertainment, instruction, and commentary of an erotic/sexual nature, created by and for adults only, presented in images, recorded audio, recorded video, transmitted over the internet a website with access limited to adult viewers, excluding any use of the Mark other than in media or venues where erotic and adult-oriented content is provided.

As illustrated in the Amendment, the Applicant's expressive activity is transmitted to a limited marketplace of consumers consisting of an consensual audience, all over the age of 18 years, desirous of receiving and enjoying the message conveyed by works relating to human sexual interest and sensual subtleties.^[40] In order to enter the site, the user must agree to all of the following terms:

1. I am at least 18 years of age.
2. I will not redistribute any material from this site.
3. I will not allow any minors to access this site or any material found herein.
4. Any material I download from this site is for my own personal use, I will not show it to a minor.
5. Sexually explicit material depicting bondage, S/M and other fetish activities is allowed by the local law governing my region.
6. I was not contacted by the suppliers of this material and I willingly choose to download it.
7. I agree that pictures depicting men or women being penetrated by objects such as vibrators or dildos, is not obscene or offensive in any way. In addition I do not believe that such material could be considered obscene or offensive.
8. I have carefully read the above and agree to all of them

This information is provided for a dual purpose–to demonstrate the fact that the relevant marketplace and channels of trade are constrained by the eight conditions above (hereinafter "the Eight Conditions") and to demonstrate that this is not a mark that is distributed to a general audience, nor that requires protection outside of the audience and marketplace delineated by the Eight Conditions.

It is well-established that determinations under trademark law hinge upon the definition of the relevant marketplace or "channels of trade."^[41] To enter the channel of trade for the Applicant's goods and services, a potential consumer will have ample fair warning that he or she is about to enter a realm of sexual expression. The relevant marketplace—limited by the description of services—is essentially the "red light district" of the online media world. In that realm, websites deal with sexual topics in a graphic and often degrading manner. Women are depicted as being used by men, with an entire genre of adult entertainment (bukkake) devoted to images of men ejaculating on women, often on their faces. This relevant marketplace is a marketplace where scatological humor is found, see http://www.modestypanel.com/snackorscat/, alongside scatological pornography (no citation provided out of respect for the examining attorney, but if the examining attorney wishes to do a Google search for "scat porn," the Examiner is welcome to). In the relevant marketplace, a Google search for "urination porn" brings up almost 400,000 web pages devoted to the subject.^[42]

RELEVANT MARKETPLACE CONCLUSION

The fact is that in the United States, "fucking" has lost its sting. However, if the Examiner narrows the relevant marketplace to the internet, then "fucking" is certainly an impotent term. If the relevant marketplace is narrowed further to the world of adult materials, then fucking is downright bland. In Sable Communications v. FCC, the Supreme Court held unconstitutional a complete prohibition on the creation of "obscene or indecent communication" on the grounds that children needed to be protected from hearing such communications. The justification was that this restriction went too far, since it denied adults (the relevant market) access to the communication in order to shield the irrelevant market (children).

Based on the above facts, and following the above-cited authority, the Examiner should find that "fucking" is generally accepted as a non-scandalous term. In the alternative, the Examiner could find that on the internet, "fucking" is not a scandalous or immoral term. And as a fallback position, the Examiner should find that "fucking" is neither scandalous nor immoral in the context of the relevant sub-market of online adult media.

THE UNCONSTITUTIONALITY OF 2A

Trade names convey messages about the type, cost and quality of the product or service associated with the mark.^[43] The fact is, that trademarks propose a commercial transaction, and under long-established Supreme Court precedent, speech that proposes a commercial transaction is "commercial speech" and thus subject to First Amendment protection.^[44] The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

The USPTO's prohibition of scandalous or immoral marks has been harshly criticized.^[45] Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley.^[46] Even if McGinley were properly decided, it has been superseded by multiple cases that have calcified the previously more amorphous area of commercial speech law and the law surrounding the constitutionally of restrictive laws based on morality.

McGinley held that since trademark applicants were still free to use the trademarks, then there was no abridgment of speech. However, this reasoning is simply shoddy and unsupported by a vast body of First Amendment jurisprudence. For example, in striking down New York's "Son of Sam" law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held "[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech."^[47] The authors were still free to write, but were denied the financial benefits of their labors. This appears to completely dispense with the McGinley reasoning.

In Bad Frog Brewery, Inc. v. New York States Liquor Authority,^[48] analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog "giving the finger" to any and all passerby on bottles of liquor. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called "offensive" trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose.

Finally, there can be no clearer authority for the death of Section 2(A) than Lawrence v. Texas.^[49] "The fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."^[50] "Morality" is no longer a valid reason to confer or deny a governmental benefit–instead the government must articulate a reason why registration of "fuckingmachines" might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(A) denial.

REQUEST FOR ALTERNATIVE RELIEF

Should the examiner, after reviewing the facts and legal arguments set forth above, still determine that "fuckingmachines" is unsuitable for the Principal Register, the Applicant requests that the Examiner grant the alternative relief of listing this Mark on the Supplemental Register as provided for in 15 U.S.C. § 1091; 37 C.F.R. 2.47 and 2.75(a);p TMEP §§ 801.02(b), 815, and 816 et. seq.

CONCLUSION

For the reasons set forth above, Applicant holds the position that the proposed mark, "fuckingmachines," is not scandalous, nor immoral. In the alternative, the Mark is not scandalous or immoral to the relevant marketplace, which is (further alternatively) either the internet, or the adult oriented portion of the internet. The Applicant respectfully requests that the Applicant's Mark proceed to registration on the Principal Register, or in the alternative, on the Supplemental Register.

Additional evidence is attached as composite exhibit K.

WESTON, GARROU, DeWITT & WALTERS

---

Lawrence G. Walters
Florida Bar No: 776599
Marc J. Randazza
Mass. Bar No: 651477
Florida Bar No: 625566
781 Douglas Avenue
Altamonte Springs, Florida 32714
(407) 389-4529 (phone)
(407) 774-6151 (fax)
www.FirstAmendment.com
Attorneys for Applicant

Footnotes

1. See Alan Crozier, Beyond the Metaphor: Cursing and Swearing in Ulster, in MALEDICTA X, at 115, 122 (1988–89).
2. Christopher M. Fairman, Fuck, CENTER FOR INTERDISCIPLINARY LAW AND POLICY STUDIES WORKING PAPER SERIES, March 2006 at page 10.
3. Id.
4. For example, "Do you want some free Superbowl tickets? – absofuckinglutely!"
5. Memorable Quotes from Wedding Crashers, http://www.imdb.com/title/tt0396269/quotes.
6. The website http://www.fuckfunny.com/ has a collection of "fuck jokes" that are so hackneyed that they aren't even funny anymore, but schoolchildren nation wide will laugh at them every year, thinking they were the first to hear them.
7. See, e.g., Lynn Yaeger, Elements of Style Frill Seeking Garters, Thongs, and Other Hot Topics, Village Voice, February 10th, 2003 found at http://www.villagevoice.com/nyclife/0307,yaeger,41815,15.html ("With this saucy frock Krysi is wearing a pair of super-high-heeled open-toed $350 Agent Provocateur pumps that the store calls mini-peeps but that in the 1970s were know as Joan Crawford fuck-me pumps."). bought my first pair of fuck-me boots. You know, fuck-me boots -- knee high, black heeled boots. Now I've got fuck-me shoes (gold, strappy sandals with 4-inch heels), but I've never been able to find of boots before because my calves were always too fat. Today, I hit pay dirt, however, knee-high pleather boots that fit over my fat calves (OK, I'm sure my weight loss helped too). I am in ecstasy. I swear to God I almost orgamsed right there in the store. My only concern is that it's not the appropriate season to wear them and a mini-skirt out tomorrow night. I'll probably do it anyway."); http://blog.
   myspace.com/index.cfm?fuseaction=blog.view&friendID=17394243&blogID=147191502 ("Fuck me shoes, I love them so much!!!"); http://bananascabana425.blogspot.com/2006/08/these-are-few-of-myfavorite-things.html ("Girls can't have too many shoes, and these are the ones I adore....Janilyn purple fuck-me shoes I wore with the purple Aranaz clutch to Donna's wedding... Janilyn black fuck-me shoes classic black leather patent i foxify jeans with ... Charles & Keith pink-brown fuck-me shoes very dainty, too dainty for me but what the hell 8) VNC green-and-gold corset fuck-me shoes unbelievable, why did i get this??? ... Nine West pink snakeskin fuck-me shoes I wore at CJ's wedding 11) Unisa brown-and-gold fruity fuck-me shoes i salivated over last holiday.").
8. http://the-hwop.tripod.com/blog/ ("I like all the seasons, when they start. But I am definitely over summer now. And last year, winter was kind of a joke, and that pissed me off, even if it turned out to be a good thing that I could wear a skirt and a tank top (and my fuck-me shoes) on Christmas Day."); http://blog.
   myspace.com/index.cfm?fuseaction=blog.view&friendID=46413915&blogID=153993224 "I finally
9. http://www.urbandictionary.com/define.php?term=fuck+me+eyes
10. Memorable Quotes from Wedding Crashers, http://www.imdb.com/title/tt0396269/quotes (John Beckwith: Don't waste your time on girls with hats. They tend to be very proper. Jeremy Grey: Yeah? Well, the proper girl in the hat just eye-fucked the shit out of me.).
11. Rachel Kramer Bussel, Full-Frontal Photo Shoots - The doubts, fears, and very personal rewards of posing in the buff, Village Voice, Aug. 12, 2005. Found at http://www.villagevoice.com/people/0533,bussel,66850,24.html.
12. See http://tiny
    url.com/nucsm (this is a reduction of a lengthy URL for the search "whispered, I want you to fuck me," which turned up 14,000 times on Google. The Examiner may review
13. A Google search for "She whispered 'fuck me'" turns up 84,000 individual web pages with this very specific phrase.
14. See, e.g., The Kinky Librarian, The Postmodern Courtesan found at http://www.postmoderncourtesan.com/archives/000623.php.
15. U.S.C. § 1502 (providing that registration of a trademark may be refused if it "consists of or comprises immoral, deceptive, or scandalous matter.").
16. There is no allegation of deceptiveness, therefore this will not be addressed.
17. 403 U.S. 25 (1971)
18. Id at 23.
19. For example, the "sybian," one of the "Fucking Machines" featured in the Applicant’s collection frequently appears on "The Howard Stern Show." On this show, Cameron Diaz, Jenna Jameson, and Carmen Electra, are well known celebrities who have opted to ride the Sybian while on-camera. See Howard Stern, The Girls of The Sybian, (photo gallery) found at http://www.howardstern.com/galleries.hs?g=37 last visited August 14, 2006; Meta Café, Carmen Electra Rides The Sybian For Howard Stern, (dialogue includes discussion of Cameron Diaz and Jenna Jameson riding the sybian on the show) found at http://tiny url.com/prryz last visited August 14, 2006. URL reduced from http://www.metacafe.com/watch/104724/carmen_electra_rides_the_sybian_for_howard_stern/ for convenience of the reader. Additionally, as of August 14, 2006, there were approximately 160,000 web pages noting the use of the Sybian on the Howard Stern show alone. See http://tiny url.com/f84y7 last visited August 14, 2006, and reduced from http://www.google.com/search?client=firefoxa&rls=org.mozilla%3AenUS%3Aofficial_s&hl=en&q=sybian+%22howard+stern%22&btnG=Google+Search.
20. See generally, Karen D. Pyke, Class-Based Masculinities: The Interdependence of Gender, Class, & Interpersonal Power, 10 Gender & Soc'y 527 (1996) ("Conventional theoretical perspectives on power…view microlevel power practices as simply derivative of macrostructural inequalities and overlook how power in day-to-day interactions shapes broader structures of inequality."); Catharine A. Mackinnon, Toward a Feminist Theory of the State 190–91 (1989) ("Privacy doctrine is most at home at home, the place that women experience the most force, in the family…. For women the measure of the intimacy has been the measure of the oppression…. This is why feminism has seen the personal as the political."); Susan Moller Okin, Justice, Gender, and the Family 110–33 (1989) (discussing the close relationship between the supposedly distinct public and domestic spheres and the public/domestic distinction's impact on feminist politics and theory).
21. C.f. Fuck Me Feminism, the Double-Edged Sword found at http://saucebox.almeidaisgod.com/?p=76
22. See Lawrence v. Texas, 539 U.S. 558 (2003).
23. http://www.time.com/time/archive/preview/0,10987,1101030331-435968,00.html; http://www.informationclearinghouse.info/article2835.htm (Stories detailing Bush saying "Fuck Sadaam, we’re taking him out).
24. http://www.washingtonpost.com/wp-dyn/articles/A3699-2004Jun24.html ("go fuck yourself").
25. First Stop, Iraq, TIME Magazine, http://www.time.com/time/archive/preview/0,10987,1101030331435968,00.html; Bush Or Kerry? Look Closely And The Danger Is The Same, NEW STATESMAN, http://www.zmag.org/content/showarticle.cfm?ItemID=5083.
26. See Clay Calvert, The First Amendment, the Media, and the Culture Wars: Eight Important Lessons from 2004 about Speech, Censorship, Science and Public Policy, 41 CAL. W. L. REV. 325, 357 (2005).
27. Id at 328–55 (discussing the organized assault on free speech by small groups).
28. See Sirius Cash: Lots of stock for shock Jock, NEWSDAY, Jan. 6, 2006, at A13; Playing it by ear: Howard Stern's Sirius debut, USA TODAY, (Jan. 9, 2006) found at http://www.usatoday.com/life/people/2006-01-09-sternrecap_x.htm
29. http://theedge.bostonherald.com/musicNews/view.bg?articleid=152294&srvc=edge; http://buckcherry.com/LitUp/showflat.php?Number=14348.
30. http://www.radiorevolt.com/comment.php?comment.news.502; http://www.roadrun.com/blabbermouth.net/news.aspx?mode=Article&newsitemID=49273
31. http://www.sexandthecityquotes.com/episodes/the-fuck-buddy-quotes.html
32. Sex and the City, Episode 30, "Ex and the City." See Exhibit H.
33. Quotation is from the Examiner's initial rejection, but it cites the following cases: In re Mavety Media Group, Ltd., 33 F.3d 1367, 1371, 31 USPQ2d 1923, 1925 (Fed Cir. 1994); In re Wilcher Corp., 40 USPQ2d 1929, 1930 (TTAB 1996). See also, In re Hershey, 6 USPQ2d 1470 ("to determine whether a designation is properly refused as scandalous, the mark must be considered in the context of the marketplace as applied to the goods or services described in the application")
34. 390 U.S. 629 (1968).
35. Id at 631.
36. This appears to be perhaps the result of some holiday cheer.
37. Sari Eitches, Sex on Tuesday: In Love We Lust, Daily Californian, Tuesday, February 15, 2005 found at http://www.dailycal.org/sharticle.php?id=17635.
38. These numbers change daily, but the Examiner is invited to conduct a Google search for these terms and count for himself.
39. See Eric Vanatta, The F-Motion, 21 CONST. COMMENT. 285, 288–89 (2004) (noting fuck had 24.9 million hits compared to baseball, its closest competitor, with only 13.6 million hits).
40. See Fucking Machines splash page. http://fuckingmachines.com/. This initial page contains no graphic content, but requires the user to affirm that he or she is visiting the site voluntarily and that he or she is over the age of 18.
41. See, e.g., M2 Software, Inc. v. M2 Communs., Inc., 450 F.3d 1378, 1383 (Fed. Cir. 2006) (no likelihood of confusion when identical marks were used to brand products in different channels of trade); PC Club v. Primex Techs., Inc., 32 Fed. Appx. 576, 577 (Fed. Cir. 2002) (degree of care potential consumers will exercise when purchasing one product over another can mitigate likelihood of confusion); Bell Laboratories, Inc. v. Colonial Products, Inc., 644 F. Supp. 542, 544 (D. Fla. 1986) (marketing channels used is operative to the likelihood of confusion analysis); University of Georgia Athletic Association v. Laite, 756 F.2d 1535 (11th Cir.1985) (same).
42. http://www.google.com/search?num=100&hl=en&lr=&client=firefox-a&rls=org.mozilla%3AenUS%3Aofficial&q=urination+porn&btnG=Search.
43. See Friedman v. Rogers, 440 U. S. 1, 11 (1979).
44. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976).
45. See, e.g., Llewellyn Joseph Gibbons, Semiotics of the Scandalous and the Immoral and the Disparaging: § 2(A) Trademark Law After Lawrence v. Texas, 9 MARQ. INTELL. PROP. L. REV. 187, 224 (2005).
46. 660 F.2d 41 (1981).
47. Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991).
48. 134 F.3d 87 (2d Cir. 1998).
49. 539 U.S. 558 (2003).
50. Id at 577.