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6/7/2007

Law & Jurisprudence

THE F BOMB
A local lawyer teams up with a California porn king to fight for your right to trademark dirty words

 

Take a guess what they sell at www.fuckingmachines.com. Or just go to the site.

Once you verify that you are 18 or older, and that there are no local laws prohibiting you from viewing online porn, the site directs you to a catalog of every kind of sex toy imaginable, from vibrators to strap-ons to bondage gear. If you’re in the mood for some instant gratification, there are links to other web porn sites. It’s pretty much what you would expect these days on the Internet. The site went live on Sept. 25, 2000. In July 2005, the San Francisco-based company that owns it, Cybernet Entertainment LLC, asked the United States Patent and Trademark Office to trademark the word “fuckingmachines.” That’s standard practice for any business that wants to protect its interests.

Cybernet’s request met the government’s most preliminary standard: No one else was using the word “fuckingmachines.” But it didn’t clear another, more important hurdle: The patent office believes the word “fuck” is “scandalous,” and won’t allow Cybernet owner Peter Acworth to trademark it, or any variation of it.

“Registration is refused because the proposed mark consists of or comprises immoral or scandalous matter,” wrote Michael Engel, the attorney who reviewed the case for the government. “The term ‘fucking’ is an offensive and vulgar reference to the act of sex. … A mark that is deemed scandalous ... is not registrable.”

In other words, the federal government decides which words are and are not scandalous, and “fuck” falls on the immoral side of that divide. It’s been that way since 1905, according to documents included in Cybernet’s trademark application case, when federal guidelines for trademarks were first spelled out. Times may have changed, but the trademark office’s standards haven’t.

According to the office’s website, there have been 39 trademark petitions that include the word “fuck,” five that have “fucking” – including one attempt to trademark the word itself – one with “cunt” and at least 50 with “shit,” again including at least one person who tried to trademark the word itself. None have been approved, though a handful of cases, like “fuckingmachines,” are still pending. “Bitch,” by the way, has been allowed in most cases. There are at least 135 approved trademarks that include the word “ass.”

But Acworth was also denied a trademark for “whippedass,” though that decision was later reversed.

His Altamonte Springs–based attorney, Marc Randazza, says another client had two trademarks refused because they had the letters “BS” in them.

“The trademark office has gone off the deep end with 2(a) rejections,” Randazza says, referring to Section 2(a), 15 USC §1052(a), which forbids trademarks with “immoral, deceptive, or scandalous matter.”

He thinks the rejection is unconstitutional. Randazza – who works for the firm Weston, Garrou, DeWitt & Walters, which is frequently involved in free-speech cases – is fighting the federal government for your right to trademark any dirty word you please. And his filing in the case is one of the most entertaining legal documents you’re likely to come across.

The smut factory

If Larry Flynt is a “smut peddler who cares,” as he famously called himself during his brief 1983 presidential campaign, Peter Acworth might be the “smut peddler who is just along for the ride.”

“Marc talked me into it,” he says. “I’m not normally this sort of person.”

Without his attorney’s prodding, Acworth probably would have given up when the trademark office rejected “fuckingmachines.”

“Marc thought he had a pretty good shot at it,” Acworth explains. “I’m really going on his advice. … I have no real agenda with it.”

He’s not on a First Amendment crusade, nor does he seem interested in being some sort of spokesman for the porn industry. He’s just making money and having a good time doing it.

Acworth put up his first fetish site, www.hogtied.com, in 1997, while pursuing a Ph.D. from Columbia Business School. The site made money. By 1998, he had dropped out, moved to San Francisco and started Cybernet Entertainment LLC, which does business under the name Kink.com.

In addition to www.fuckingmachines.com, Kink.com operates 10 different fetish websites, which collectively have 60,000 subscribers who pay $30 a month, according to an April New York Times Magazine profile. His company produces all of its own content – about 500 30- to 50-minute unscripted flicks a year. Kink.com employs 70 people in its Mission District headquarters.

Acworth may not be a household name, but he has caused something of a stir in his hometown. Last year, he paid $14.5 million for the State Armory and Arsenal in San Francisco, a building that, though vacant since the National Guard abandoned it in the 1970s, is on the National Register of Historic Places. It will be the headquarters for his burgeoning porn empire.

Some of his new Mission District neighbors weren’t thrilled. Though the building was decrepit, protesters worried – loudly – that it was too close to schools, or argued that it should be converted into badly needed affordable housing. The mayor granted them a hearing to air their grievances, but in the end Acworth was allowed to proceed.

To smooth things over, Acworth wrote an op-ed in the San Francisco Gate newspaper. “I hope that my concerned neighbors will agree with me that their kids are far more at risk of tripping over used hypodermic needles in the neighborhood streets than they are of encountering sexual acts happening behind 2-foot-thick walls,” he wrote. “While it is very hard to explain why people choose to partake in the activities portrayed on my company’s Web sites, my message is that there is a whole community of people right here in San Francisco who do just that.”

Once the building is complete, Acworth plans to lease it to mainstream film companies as well. And his company may start producing scripted skin flicks, too.

An old friend

Cybernet appealed the trademark office’s ruling in August. Randazza filed an “amendment and response to office action,” asking the government to reconsider. His argument boils down to the idea that really, the F-word isn’t that bad.

“The Applicant respectfully challenges this characterization of the word ‘fucking’ and its allegedly ‘offensive and vulgar’ root: ‘fuck,’” Randazza writes. Then he launches a crude, funny defense of the word.

“[T]his much maligned four-letter word has no intrinsic meaning,” Randazza writes. “Fuck [can] play a role as a figurative term, for example, ‘to fuck’ can also mean ‘to deceive.’ 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’. ‘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 altogether. ‘Fuck’ is an old friend, who can always make us laugh.”

He quotes from the movie Wedding Crashers: “‘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!’”

“If I didn’t use ‘fuck’ liberally,” Randazza says of his argument, “I’d be conceding the fucking argument [that the word isn’t used in proper settings].”

Randazza goes on to reference women’s “fuck-me boots” and defends the word as political expression and a way to counterbalance society’s moralizing. He also says the products his client’s site sells perform a public service, of sorts: “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.”

But lest you think his entire legal argument is contemporary, Randazza throws in a bit of history as well.

“The fact is that when 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,” he writes. “The moral values and mores of contemporary society certainly tolerate ‘fucking’ to a great level.”

In other words, when the trademark law was conceived, the word was a big deal. Now, not so much. After all, the president uses it, Randazza argues. So does the vice president, rather famously (“Go fuck yourself”). On June 4, a federal appeals court ruled that the government can’t punish TV stations for blurting out “fuck” or other swear words.

The movie Casino has 2.24 “fucks per minute,” he writes. Jay and Silent Bob Strike Back has 2.38 fucks per minute. “Suffice it to say that the Examiner should take notice that ‘fuck’ is accepted, and even beloved.”

“Fuck” may be in common parlance, but that doesn’t sway the patent office. “Although the word is frequently used, it still is considered shocking in most formal or polite situations,” Engel responded. “For example, the word is bleeped out on basic cable, and broadcasters can be fined by the FCC for letting the word go out on the airwaves.”

Engel notes he is constrained by the law and by office policy. Even if he believed the rules to be an unconstitutional infringement on free speech, that decision is ultimately up to the courts, not him. And while he found merit in Randazza’s argument that the website’s target audience probably wouldn’t be offended by the word, accepting it “would mean that Section 2(a)” – the law that governs vulgar trademarks – “would almost never be applied to marks used in connection with pornographic goods and services. The Office has not adopted this policy, and instead determined scandalousness from the viewpoint of ‘a substantial composite of the general public.’”

Times change

“There are companies that have ripped off our ideas,” Acworth says. But Cybernet hasn’t really done anything about it. His company went to buy www.fuckingmachines.eu, but someone else had already snatched it up. Instead of fighting in court, Acworth simply paid for the site.

He’s not sure how much a trademark is actually worth, but his lawyers say he needs one, so he battles on. A trademark is a valuable asset; it allows the owner to use the federal court system to shut down copycats, and increases the liability for those who crimp their turf.

Under the current setup – known as a common law trademark – Acworth has some protections, but not all. A trademark increases the civil and criminal penalties for infringers and makes it easier to prove his case in court. Even if he’s denied the trademark, he can still use the name “fuckingmachines.” It just wouldn’t have the teeth of the federal government.

Randazza filed an appeal June 5, which will lead to a hearing before the Trademark Trial and Appeal Board (at which, he worries, he’ll have to deftly balance the inherent vulgarity of the case with traditional courtroom decorum).

Randazza thinks the federal government has been denying trademarks based on vulgarity more often in recent years. “Since 2004, surprise surprise, 2(a) rejections have gone off the charts,” he says, hinting that the Bush administration and conservatives in Congress may have pushed the trademark office to crack down.

Other experts don’t see evidence of a crackdown.

“I don’t see any trend,” says Chicago trademark attorney Linda Kuczma. The government might not be getting more puritanical, she adds, but the circumstances surrounding Section 2(a) cases have changed.

For instance, in recent years the patent office began allowing trademark seekers to file applications online, which means that more of them decline legal advice. A lawyer would know that putting a naughty word in the trademark is a no-go; a layperson might not. So perhaps more people are applying for trademarks without realizing they’ll be turned down.

And standards do evolve, Kuczma says. The government no longer lets you trademark the names of American Indian tribes. Critics asked the government to rescind the Washington Redskins’ trademark because it is insensitive. They won at a preliminary level, but the Redskins got their trademark back on appeal. The case is still pending. If the team applied for that same trademark today, it would certainly be denied.

Randazza argues the word “fuck” has evolved too, and is now integrated into the public lexicon. “I think 2(a) is void for vagueness,” he says. And indeed, the law is vague. It never defines what is “immoral, deceptive or scandalous.” It’s up to the trademark office to decide what words meet those standards.

“Is it arbitrary?” Kuczma asks. “I wouldn’t say it is totally arbitrary. Is there some subjectiveness? Yes.”

That’s what Randazza wants to do away with. But it’s a battle. If he loses with the Trademark Trial and Appeal Board, the case goes to a federal appellate court, and from there, possibly, to the U.S. Supreme Court.

“I’m jousting at a windmill,” Randazza says.

Maybe, but what the fuck.

jbillman@orlandoweekly.com
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