Acronym Artist’s Application Attracts Attention Resulting in Scandalous Trademark Registration Tribulations

LMFAO is the, er, “name” of an electro pop duo who are known individually as Redfoo and SkyBlu (why not?).  According to an article on Hollywood, Esq., (and confirmed by the applications found here, here, here and here), the band recently (on March 16, 2012) applied for federal trademark registration of the LMFAO word mark and this composite (words & design) mark:

Applications were filed for both marks for apparel and:

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Sound recordings featuring music; Video recordings featuring music; Digital materials, namely, CDs, DVDs, downloadable audio files, and downloadable video files featuring music; Downloadable software in the nature of a mobile application for playing, recording, mixing, processing, and editing audio and video recordings; Protective covers and cases for mobile devices; Mobile device accessory charms; Ear buds; Headphones; Eyewear; Sunglasses; Eyeglass frames in Class 009

Jewelry; Watches; Key chains as jewelry in Class 014

Retail store and on-line retail store services featuring sound and video recordings; apparel, headwear, footwear, flying discs, jewelry, watches, funnels, mugs, picture frames, temporary tattoos, stickers, license plate frames, sunglasses, eyeglass frames; beach balls, shot glasses, barware, protective covers and cases for mobile devices, towels, glow sticks, tote bags, foam fingers and hands, key chains, portable beverage coolers; Providing an Internet website portal featuring links to music and music video-related merchandise for retail purposes in Class 035

Live performances by a musical group; Entertainment in the nature of visual and audio performances, namely musical group performances; Providing a website featuring information in the field of music and entertainment; Disc jockey services; Music publishing services; Music production services; Video production services; Providing an Internet website portal featuring entertainment, music, music videos, artist information, music performance tickets and information; Hosting social entertainment events, namely, concerts, parties, and musical performances; Musical floor shows provided at bars, restaurants, night clubs, and lounges; Entertainment services, namely, dance events by musical artists; Entertainment services, namely, conducting parties; Fan clubs; Arranging and conducting night club entertainment events in Class 041.

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Presumably, the apparel application was filed separately because another individual, Norlita Subia, applied to register LMFAO for apparel back in June, 2011.  Ms. Subia’s application recently was issued a Notice of Allowance, meaning that her application will mature into a registration once she submits acceptable evidence of use of her LMFAO mark and the Government accepts such evidence.  This creates a problem for the band’s LMFAO apparel applications (and possibly for some of the goods & services in its other application, like jewelry and retail store services featuring apparel)) since the USPTO registers marks on a first-to-file basis.  Given the identical marks and goods, Ms. Subia’s application and any subsequently issued registration are certain to block the band’s apparel application from proceeding.  It’s too late in the process for the band to file a Letter of Protest, so it will either have to negotiate abandonment of Subia’s application or file a Cancellation proceeding once her mark registers.  But I digress.

A recent article on DuetsBlog, titled LMFAO: Scandalous and We Know It does an excellent job of examining the PTO’s prior denials of registration of the LMFAO marks under Section 2(a) of the Trademark Act, which precludes registration of marks that consist of immoral . . . or scandalous matter.  I’m just not sure that I agree that LMFAO is scandalous, regardless of what the acronym stands for.  According to Wikipedia, the band claims the LMFAO acronym stands for “Loving My Friends and Others.”  According to the band’s newly filed trademark applications, LMFAO stands for “Laughing My Freaking Ass Off.”  According to the Acronym Finder (a favorite tool of PTO Examining Attorneys), LMFAO stands for “Laughing My Fat Ass Off,” or “Laughing My Friggin’ Ass Off.”  But even if it stands for I always thought it stood for — “Laughing my Fucking Ass Off” — is that scandalous?  If so, is it more scandalous than “Laughing my Freaking Ass Off?”

Is it that the F* bomb is de facto scandalous?  If so, why is that? I don’t see why it should be, especially being one of the most grammatically versatile words in the English language, as explained in this documentary on the etymology of the word “fuck.”  What do you think?

As Justice Potter Stewart famously stated about pornography, “It is hard to define, but I know it when I see it.”  The same seems to be true of “immoral or scandalous” marks at the USPTO. But, should it be?