Is LMFAO an immoral and scandalous trademark?
Heather MoradoThe dance music duo LMFAO, best known for club anthems such as “Sorry for Party Rocking,” and “Sexy and I Know It,” are attempting for the second time to secure trademark registrations with the United States Patent and Trademark Office (USPTO) by filing four applications in March. LMFAO had previously filed applications in 2008, but they were refused registration by the USPTO on the basis that the acronym LMFAO was shorthand for “Laughing My Fucking Ass Off.” The USPTO Examining Attorney concluded that the mark LMFAO constituted “immoral and scandalous matter” that was unregistrable under the Trademark Act, 15 U.S.C. §1052(a).
To be considered scandalous, a mark must be “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 the context of the marketplace as applied to the goods and/or services described in the application.” Scandalousness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, and in the context of contemporary attitudes.” In re Mavety Media Group Ltd., 33 F.3d 1367, 31 USPQ2d 1923 (Fed. Cir. 1994). Examples of previous trademark applications that were refused registration on this basis include “1-800-JACK-OFF,” “BULLSHIT,” “A-HOLE PATROL,” “SEX ROD,” and “COCAINE.”
What may have prompted LMFAO’s recent trademark applications is the USPTO’s approval in 2011 of an application for LMFAO, filed by an unrelated third party. In response to the Examining Attorney’s inquiry regarding the meaning of LMFAO, the applicant responded, “LMFAO appearing in the mark…is a term of art for Laughing My Freaking Ass Off.” Interestingly, the recent applications filed by the musical group LMFAO contain this same disclaimer as to the meaning of the acronym.
Although the USPTO has allowed a previous application for LMFAO, it likely won’t be relevant to the applications filed by the musical group LMFAO. USPTO Examining Attorneys are not bound by decisions made by other Examining Attorneys. Rather, an Examining Attorney’s decision is based solely on the unique facts and evidence of record in connection with a particular application. TMEP § 1216.01.
Will the Examining Attorney find that LMFAO is an immoral and scandalous mark, seemingly in contradiction of another recently approved application? It’s difficult to predict.
In the meantime, I’m going to LMFAO at this hilarious video…wiggle wiggle wiggle wiggle wiggle, yeah!
Reader Comments (1)
Not the first instance of PR stunts like that. A gaming PC and laptop manufacturer named Alienware attempted to do a similar thing and trademark the acronym 'FTW' which is short for 'For The Win'. They failed miserably. The fact is that it's good PR because win or lose, you win. It's definitely going to make plenty of blogs and news.