Under the Influence with Terry O'Reilly - S8E20 - To Bleep Or Not To Bleep: Vulgar Trademarks

Episode Date: May 16, 2019

This week, we look at the use of profanity in marketing and the resulting upsurge in Vulgar Trademarks. Four-letter words aren’t just sought out by small, feisty companies looking for attention anymore, but by some of the largest advertisers in the world. Is it obscene, or is it free speech? These days, I swear it’s hard to tell. Hosted on Acast. See acast.com/privacy for more information.

Hi, it's Terry O'Reilly. As you may know, we've been producing a lot of bonus episodes while under the influences on hiatus. They're called the Beatleology Interviews, where I talk to people who knew the Beatles, work with them, love them, and the authors who write about them. Well, the Beatleology Interviews have become a hit, so we are spinning it out to be a standalone podcast series. You've already heard conversations with people like actors Mark Hamill, Malcolm McDowell, and Beatles confidant Astrid Kershaw. But coming up, I talk to May Pang, who dated John Lennon in the mid-70s. I talk to double fantasy guitarist Earl Slick, Apple Records creative director John Kosh. I'll be talking to Jan Hayworth,

who designed the Sgt. Pepper album cover. Very cool. And I'll talk to singer Dion, who is one of only five people still alive who were on the Sgt. Pepper cover. And two of those people were Beatles. The stories they tell are amazing. So thank you for making this series such a success. And please, do me a favor, follow the Beatleology interviews on your podcast app. You don't even have to be a huge Beatles fan, you just have to love storytelling.

Subscribe now, and don't miss a single beat. From the Under the Influence digital box set, this episode is from Season 8, 2019. This episode contains some f***ing colorful language. Listener discretion is advised. You're so king in it You're so king in it Your teeth look whiter than noon, noon, noon You're not you when you're hungry

You're a good hand with a heart. You're under the influence with Terry O'Reilly. Back in 1971, Prime Minister Pierre Elliott Trudeau was in a heated debate with Conservative MP John Lundrigan in the House of Commons. Lundrigan was pressing Trudeau over training programs for the unemployed. He was suggesting Trudeau didn't care about the jobless. Trudeau looked at him and mouthed two words

in his direction. The MP later said one word started with the letter F and the other one started with the letter O. Trudeau claimed he didn't swear at all in the moment and his denial became famous. What were you thinking when you moved your lips?

What is the nature of your thoughts, gentlemen, when you say fuddle-duddle or something like that? Yep, the term fuddle-duddle went down in history that day. World leaders have stressful jobs and often employ profanity to make a point or to let off a little steam. Some of it light blue, some of it a little darker. It was rumored Winston Churchill owned a parrot that would shock guests by suddenly screaming, F. Hitler, in a Churchillian accent. Presidents and prime ministers are famous for cursing, often at each other. President John F. Kennedy once privately called Prime Minister John Diefenbaker a dumb son of a b***h.

President Lyndon Johnson was angry at Prime Minister Lester Pearson's anti-Vietnam stance and told Pearson he b***h on his rug. The Watergate tapes revealed Richard Nixon calling Pierre Trudeau a son of a b****. It hasn't all been one-sided. Ex-Prime Minister Kim Campbell recently tweeted that President Trump really is a mother f****. Most leaders do their cussing in private, behind closed government doors or after they've left office. Donald Trump, on the other hand, has broken rank and gone public. He dropped an F-bomb

in a speech in New Hampshire on the campaign trail. He called football players taking a knee sons of b****. He called the Mueller investigation total bulls**t in a recent tweet. I've said many times over the years that whoever sits in the Oval Office influences the tone of advertising and marketing here and across the border. The reason is because the president commands the largest microphone in the world, and that mic dictates the timber of the times. There was more humor in advertising during the Clinton era.

Ads got a little more sober and conservative under George W. Bush. They loosened up under Obama. And something else is happening under Trump. Profanity is creeping out of the shadows inch by inch. Profanity is creeping out of the shadows right now in the world of marketing.

You can see it in the upsurge in vulgar trademarks. These four-letter words aren't just sought out by small, feisty companies looking for attention, but by the largest advertisers in the world. It's giving the trademark offices in the U.S. and Canada some acid indigestion. And some arguments for vulgar trademarks have even reached the Supreme Court.

Is it obscene or is it free speech? These days, I swear, it's hard to tell. You're under the influence. While perusing Advertising Age magazine recently, I noticed an interesting article. It was just a short paragraph tucked into a rundown of recent news items.

But it caught my eye. It said that P&G was quietly trying to trademark a number of digital acronyms and abbreviations. The world's second largest advertiser was in the process of attempting to trademark NBD, meaning no big deal, FOMO, fear of missing out, and LOL, laugh out loud. But what surprised me was that P&G was also trying to trademark WTF, meaning what the f***, and FML, which generally means my life.

And for good measure, P&G was trying to trademark NSFW, or not safe or suitable for work. The application said P&G planned to use these terms for a number of products, including air fresheners, dishwashing detergents, and soap. Dirty words for clean products. Hmm. Interestingly, the trademark office

rejected the application for WTF because a cosmetics company already owns that trademark. Wanting to use acronyms and abbreviations in advertising is one thing.

Wanting to trademark profane ones is another. We are all used to hearing profanity in movies, in music, on television, and even in news programs now.

Yet the one place we still don't hear it is in commercials. But that article got me thinking. Is there a trend afoot where marketers are now trying to own vulgar trademarks? As it turns out, the answer is yes. There is a clothing retailer in Britain that had a contentious brand name for many years. It was called FC UK, which stood for French Connection United Kingdom. The French Connection apparel company began in 1972, one year after the film of the same name was released. In the mid-1990s, the store was having trouble launching in North America

because it didn't have any brand name awareness. So the company hired ad man Trevor Beattie to come up with a campaign idea. The store didn't have a big advertising budget, so Beattie began searching for something that would give the store a lot of free press attention. One day while at French Connection for a meeting, he happened to see a fax come in from the Hong Kong division. It was marked from FCHK to FCUK,

meaning from French Connection Hong Kong to French Connection United Kingdom. Those letters FCUK caught his attention. At first glance, it looked profane, but it kind of wasn't. So in 1997, Beattie rebranded the stores FCUK. The company trademarked the name and posted billboards with the tagline F-C-U-K Fashion. The press labeled it scandalous. The Church of England protested. Britain's Advertising Standards Authority insisted on vetting their ads,

a first in the fashion category. The Economic Times called FC UK dyslexic cheekiness. But that cheekiness put French Connection UK on the map and did it with outrage as opposed to advertising money. Profits doubled in just a few years. 20% of the products the store sold had FCUK on the merchandise. Controversy fueled the brand. The trademark was put to the test in the early days of websites, when French Connection sued an internet firm called First Consultants UK.

The internet company had secured the web domain fcuk.com. They wanted it because the scrambled word was used in internet circles as an alternative to the common expletive. And the slightly off-kilter spelling helped avoid filters and controls on websites. The lawyers for French Connection said the internet company was exploiting the goodwill of the fashion company's trademark. The judge said, how can you talk about goodwill in connection with such a tasteless and obnoxious campaign? Eventually, French Connection won the case. Across the Atlantic, the FC UK branding gave the store instant visibility.

But the controversy continued. In 2004, the American Family Association lobbied the U.S. trademark office to reject the FCUK registration. And in 2006, the trademark was challenged again in Britain on the grounds it was contrary to accepted principles of morality. Not long after, the fashion company finally dropped FCUK. But I noticed the brand has a new Instagram account. The reason? The chain is bringing the old logo back. Riding the 90s fashion trend, merchandise branded with the controversial anagram

is currently for sale at Urban Outfitters. News of that stirred up the same old question. Is FCUK a vulgarity or just four innocent letters? Back in 1972, comedian George Carlin did an infamous routine called The Seven Dirty Words You Can't Say on Television. You know what I mean? It's just like we've decided there'd be some words

we won't say all the time. And I was just trying to find out which words they were. For sure. All of them. I wanted a list. Because nobody gives you

a list. That's the problem. They don't give you a list. Wouldn't you think it'd be normal if they didn't want you to say something that'd tell you what it is?

He released the bit on a comedy album that year titled Class Clown. But when Carlin did the routine live in Milwaukee a few months later, he was arrested. When I look at that original list all these years later, I notice that various companies have recently applied to register six of those seven dirty words as trademarks.

We are clearly in a different era. In both the U.S. and Canada, the guidelines say a trademark cannot be scandalous, obscene, immoral, or derogatory. Therefore, you might think vulgar trademarks are rare. You would be wrong. Between 2003 and 2015, the U.S. Trademark Office has rejected you would be wrong. Between 2003 and 2015,

the U.S. Trademark Office has rejected over 2,000 applications for word trademarks it has deemed immoral or scandalous. For example, there are over 90 pending applications for trademarks that feature the F-bomb, including Proud as F for an entertainment company, Calm the F Down for a tea company, Cluster F for a beer brand, and F Yeah for an athletic apparel company. An application for an organization called PHUC Cancer was also rejected.

While PHUC clearly has a phonetic twin, it stood for Please Help Us Cure Cancer. Two different Canadian charities fought over the phrase F-Cancer not long ago. The first charity started making F-Cancer bracelets in 2008, while the second began making F-Cancer t-shirts in 2009. When the second charity tried to trademark the phrase, the two ended up in court. While the first charity had never trademark the phrase, the two ended up in court. While the first charity had never trademarked the term originally,

the court sided with them as they began using it first. The second charity then challenged that ruling by saying the word shouldn't be able to be trademarked on the grounds that Canada's Trademarks Act prohibits recognition of any trademark consisting of an obscene or immoral word. The judge wasn't happy with the claim, saying that to argue the trademark the charity itself had applied to register was obscene only after it had been unsuccessful in securing it, just wasn't going to fly in her courtroom. What is obscene or what is just clever is always up for debate. For example, a trademark was granted to a condom company that put the letter C in front of the word umbrella. Lucky Bastard Distillers in Saskatoon was created after the two founders won $14 million

in a 649 lottery. When one of the founders, Michael Goldney, stopped by the liquor store to buy four bottles of expensive Dom Perignon champagne that day, the clerk said, you must be celebrating something. Michael said, yep, I just won the lottery. A woman behind him said, congratulations, you lucky bastard. And in that moment,

the name of his next business venture was coined. However, the Canadian Trademark Office rejected their trademark application on the grounds it fell under the Scandalous, Immoral and Obscene Clause. The distillery owners disagreed, saying the word no longer had the same connotation in the 21st century.

The Trademark Office said the majority of Canadians would disagree. Application denied. Right now, there are over 100 pending applications using the word S-H-I-T, including S-H-I-T happens for a card game, Holy S-H-I-T for a t-shirt company, Piece of S-H-I-T for athletic apparel, One of the ongoing problems dealing with vulgar trademarks is the inconsistency in court rulings. The PHUC cancer application was turned down because someone had already trademarked PHUC. But trademarks in different industries are usually allowed, as the chance for confusion in the marketplace is low.

So, why the rejection in the cancer space? Hard to say. The word fugly was approved as a trademark for clothing, but rejected for alcohol. Turd burgers was approved as a trademark for a food product, but turd roll was not. Big pecker was originally turned down as a trademark for a t-shirt company on the grounds the word pecker was a vulgar term for a part of the male anatomy. When the company appealed the decision,

the trademark appeal board overturned the rejection, saying the t-shirt company had a bird logo with a big beak. And in view of that context, Big Pecker neither offended morality nor raised a scandal. A Florida brewery made a trademark application for a beer called Nutsack Double Brown Ale. The registration was denied because the examiner determined the wording was immoral and scandalous because nutsack was also a vulgar term for a delicate section of the male anatomy and that the term would be offensive to a substantial portion of the general public. The brewery then took its case to the Trademark Trial and Appeal Board.

There, the refusal was reversed. The board noted the words nut and nutty were often used in connection with the description of beer flavors and believed target consumers with contemporary attitudes would see the attempted humor rather than being offended. The board also threw in a Christian grey reference, noting that That wording reveals an interesting conundrum. There seems to be no clear way to identify the grey boundaries of context when it comes to the meaning of a trademark. Take the acronym MILF. If you don't know what it means, you might want to Google it. 40 different applications were made

for trademarks containing the acronym MILF lately. 20 were rejected and 20 were approved. The refused trademarks included Got MILF for clothing, MILF Mania for an adult entertainment site, and From Soccer Mom to MILF for self-help books for women. The approved trademarks included Diary of a MILF for an adult online service, Fat MILF for a sandwich, and MILF Next Door for another adult online site. It's difficult to understand what distinguished the refused trademarks from the approved ones, especially since two of those trademarks were for companies in the same space. Studies reveal many rejected trademarks are not made with the context of a particular marketplace in mind.

As a matter of fact, decisions where context was heavily weighed only occurred in 26% of the decisions. Instead, trademark offices routinely refer to dictionaries to determine the meaning of a word. If a definition says the word is vulgar, the application is denied. But that arbitrary decision-making might become a thing of the past, and it's largely due to a recent precedent-setting court case involving a band. And we'll be right back after this message.

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who'll create a personalized treatment plan that pairs your healthy lifestyle with a little help and a little extra support. Start your visit today at Felix.ca. That's F-E-L-I-X.ca. Whether you're in your running era, Pilates era, or yoga era, dive into Peloton workouts that work with you. From meditating at your kid's game to mastering a strength program, they've got everything you Thank you. Find your push. Find your power. Peloton. Visit Peloton at onepeloton.ca. On June 19, 2017, a band called The Slants won a court case allowing them to trademark their name. It was a difficult and highly unusual case. The word slants has been a long-standing derogatory term for Asians. It fell squarely under the federal law that prohibited trademarks that disparage or bring

into contempt or disrepute any persons living or dead. But here was the wrinkle. The band members were all Asian Americans. They wanted to reappropriate the term. Their initial application was rejected under the disparagement clause. The trademark office rejection stated that the likely meaning of the slants was a negative term referring to the shape of the eyes of certain persons

of Asian descent and that the term has a long history of being used to deride and mock. The band filed a second application and were rejected

on the same grounds again. So they appealed the rejection to the Trademark Trial and Appeal Board, the Federal Circuit Court of Appeals, and ultimately

the Supreme Court. And it was there the band won their case. In the Supreme Court's unanimous 8-0 decision, it reversed a century of legal precedent, saying that even trademarks considered derogatory deserve First Amendment protection. The ruling said trademarks are private, not government, speech, and that powerful messages can sometimes be conveyed in just a few words. Therefore, it was improper for the Trademark Office to refuse registrations on the grounds they are disparaging or insulting.

Clearly, the court believed the slants were making a powerful statement. While the Supreme Court didn't remove all the discretion from the trademark office, it raised the bar so that names deemed offensive can survive. Put another way, a word can be disparaging, but that word could now be trademarked. It kicked open the door

to other questionable trademark applications. L.A.-based artist Eric Brunetti is the founder of a streetwear clothing company called F-U-C-T. Brunetti founded his company back in 1991, which raises an important point in the world of vulgar trademarks. A company is, more or less, free to call itself a vulgar name because it is protected by free speech. But to trademark that name is another matter. And Brunetti ran into trouble when he went to trademark F-U-C-T

after using it for nearly 30 years. He saw other companies using his brand name online and wanted to protect it. His first application was denied because the court said it was vulgar and, quote, would be perceived by a substantial segment of the public as the past tense of perhaps the ultimate word of profanity in our language. As the government lawyer arguing against the trademark told the Supreme Court, Brunetti can call his company whatever he wants, but the government doesn't have to endorse it by providing trademark registration. Justice Ruth Bader Ginsburg tried to put some context on the decision, suggesting the word F-U-C-T may not be scandalous to the 20-something audience the company targets.

But Chief Justice John Roberts interjected, saying, that may be the audience he's targeting, but that's not the only audience he reaches. The Washington Post reported the Supreme Court was decidedly squeamish on the subject. The lawyers in the case also had to do some fancy linguistic ballet, as the court didn't want to hear the word in question batted around every two minutes. Justice Neil Gorsuch said he really didn't want to hear other examples of past vulgar trademarks either. Founder Eric Brunetti maintains F-U-C-T stands for Friends You Can't Trust. That claim elicited eye rolls from the bench. A number of the justices worried that recognizing trademarks with profanity or racial slurs

might lead to more widespread use. They felt parents who are trying to teach their children not to use those kinds of terms are going to see them in advertisements or in a mall and will have to tell their kids the word is a trademark recognized by the federal government. It's a fascinating case for several reasons. First, the slant's decision set a precedent.

Second, there are massive inconsistencies in court and trademark office rulings. And third, the makeup of the Supreme Court has changed considerably since the slants decision was made, with Trump installing two more conservative judges since then.

The FUCT decision is expected in June. It will be interesting to see if the Supreme Court can articulate a rational line between acceptable and scandalous, or if it will just be the flip of a coin. I was watching Match Game on television the other day. Host Alec Baldwin was welcoming a new contestant and asked her what she did. She answered by saying, stay at home mom and MILF. That response even raised Baldwin's eyebrows. The toothpaste is definitely out of the tube when it comes to questionable language.

That progression has been happening for years, but it has recently accelerated and jumped lanes into trademark applications. The decision in the Slant's case will have broad ramifications. The band was trying to reclaim

a derogatory term, but the ruling also helped protect the Washington Redskins team name after years of protests from Native Americans. Seven applications to trademark the N-word were made immediately after the slant's ruling. And the fact that Procter & Gamble, the second largest advertiser in the world, is applying for vulgar trademarks, also signals this trend is no longer a trivial issue in the world of marketing. The standards for trademark protection are suddenly evolving after a century of entrenchment.

Which makes you wonder, is the bar lower for vulgar than it is for immoral and obscene? Should a trademark be judged by the current attitudes of the day versus the standard dictionary definition? And should the trademark office be the agency to enforce a standard of morality? Because when it comes to decency in marketing, that distinction is far from black and white.

And that is the fuddle in the middle of the duttle. When you're under the influence. I'm Terry O'Reilly. This episode was recorded in the Terrastream. Producer, Debbie O'Reilly. Sound engineer, Keith Oman. Theme music by Ari Posner and Ian Lefevre. Digital content producer, Sydney O'Reilly.

If you liked this episode, you might also enjoy an episode titled Selling Danger, Season 2, Episode 12. You'll find it in our archives wherever you download your podcasts. See you next week. Under the Influence. Better than anything you can do without a prescription. Hey, I like your style. I'd like your style even more if you were wearing an Under the Influence t-shirt.

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