Gay porn studio Corbin Fisher has already taken on illegal file sharers, lollipop twinks, and the TSA. But now? Now, they have set their sights on the U.S. Department of Commerce’s Patent and Trademark Office for rejecting one of their trademark applications. This rejected Corbin Fisher trademark includes, naturally, an enormous cock and two balls, to which the USPTO said, “Uh, no.” Why does the United States government hate cocks and balls so much?
Obtained exclusively by The Sword, Corbin Fisher’s lengthy, often hilarious, and ultimately convincing legal response to the USPTO’s rejection includes a detailed history of the phallic symbol’s usage in ancient Egypt and modern American architecture, while at the same time presents a strong case for freedom of expression.
The rejected trademark:
In rejecting the trademark, the USPTO wrote:
The depiction of male genitals in connection with adult entertainment services is shocking to the sense of decency or propriety. While the applicant has indicated in the drawing description that the design is of a “tower,” the mark clearly identifies male genitalia because of the circular design at the base of the design and the shape of the design at the top. None of these elements are present in a traditional design of a tower or obelisk.
It’s comforting that someone in our government is so familiar with the shape and appearance of big dick. And this person (I’m told it’s a woman who wrote the rejection) is so willing to identify big dick in such an official way! But she’s wrong about it being shocking and indecent.
Corbin Fisher’s response:
Admittedly, the CFU Tower is phallic in nature. Phallic symbols are now, and have always been, common in the society of man as an identifier of fertility. Furthermore, conventional towers and obelisks are intentional derivatives of a phallus – meant to portray strength, fertility and power. The Applicant should not be denied the right to protect these Alpha-male characteristics just because the USPTO feels threatened by them. After all, America is an Alpha nation, and such a Beta position cuts against the very fabric of the symbolism that tells the tale of the American experience.
The fact is that in the United States, phallic imagery is hardly shocking. However, if the Examiner narrows the relevant marketplace to the internet, then phallic imagery lack any shock value. If the relevant marketplace is narrowed further to the world of adult entertainment, then a true penis is downright vanilla, to say nothing for this particular piece of inoffensive line-art. 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 on order to shield the irrelevant market (children). Should the adult entertainment community have its commercial speech governed by the sensibilites of the 700 Club-watching public? Why not the other way around? The 700 Club is shocking and reprehensible to many, but if the FirstAmendment means anything, it means that the government must remain neutral in such determination.
Like most Corbin Fisher legal issues, this one is based more on principle than anything else. They can use the trademark however and wherever they want, regardless of whether or not the USPTO “approves” it; having it rejected just means that some other company could copy it and Corbin Fisher might not be able to sue them. (Of course, not being able to sue someone is probably a big deal to Corbin Fisher.)
The USPTO has controversially rejected other trademarks and patents, only to have their decisions overturned in state and federal courts. The Washington Redskins, for example, had trouble with their trademark because of protests from Native Americans, but the Supreme Court denied an appeal to strip the sports teams of their trademark. And if the image of an Indian accompanied by the word “redskin” isn’t offensive (which, uhh, it is), a giant penis certainly can’t be considered offensive either.
More from the Corbin Fisher response, as prepared by Marc Randazza:
Mankind erected phallic symbols in its earliest days. The Hohle Phallus is 28,000 years old. The phallus lost no popularity as the earliest civilizations developed, and it was ubiquitous in Ancient Egypt. In Egyptian mythology, the god Seth vivisected Osiris and scattered 14 pieces of his body throughout Egypt. Osiris’ wife, Isis, collected all of the pieces except his penis,which was supposedly swallowed by a fish. According to the myth, Isis erected a wooden replacement. Ever after, the phallus served as a symbol of male virility and agricultural fertility. These representations eventually led to the proliferation of obelisks, symbolizing fertility and prosperity as well as power and dominance. To be Alpha means to invoke the power of the phallus. Exaggerated and elongated phalluses were commonplace in Ancient Greek depictions of gods associated with fertility – Hermes, his son Pan, and Priapus among them. In modern times the city of Tyrnavos, Greece holds an annual Phallic festival accompanied by phallic events on the first day of Lent. The undersigned has found no examples of any ill effects upon the residents of Tyrnavos.
Of course, phallocentrism is not entirely European. In Japan, the Mara Kannon National Shrine in Nagato, Yamaguchi is among the many fertility shrines still erect in Japan today, where phallic adoration is common and phallic keep-sakes and souvenirs can be purchased as fertility idols.
The basis for rejection is flawed. Many high-profile structures would fit within the strangely contrived rule against invoking the imagery of phallus shaped buildings. One element of the mark that apparently offended the PTO was “the circular design at the base of the design and the shape of the design at the top. None of these elements are present in a traditional design of a tower or obelisk.” One can only infer from the rejection that it is meant to imply that the “circular design at the base” represents testicles and the “shape of the design at the top” to represent the “dome” of the penis. It is important for the Examiner to keep in mind the aforementioned teachings of famed psychoanalysts – simply because a structure is phallic in nature, does not mean it is a penis. One may invoke the symbol of strength, the phallus, without it being a literal tallywhacker.
You can agree with Corbin Fisher’s arguments and their stand against censorship (as I do for the most part), but then you also have to be OK with the fact that your tax dollars are being used to pay someone at the USPTO to actually read this and consider an argument that employs the use of the word “tallywhacker.”
The full Corbin Fisher brief:
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