Ow! My Balls! | Intellectual property and business law blog

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Steve O'Donnell, Ph.D. Registered Patent Attorney

Ow! My Balls!

idiocracy3 Remember a little while ago when the Washington Redskins lost their trademark registration because the office decided the name was offensive and everyone that didn’t know anything about trademark law got upset and blew it into a story? Good times, good times.

Anyway, although it doesn’t happen a whole lot, the trademark office will reject marks it things are offensive. Case in point, Comfyballs ™ men’s underwear.

If you can’t tell from the name, the underwear has a pouch in front to cradle and caress (my words, not theirs) the wearer’s wedding tackle. The picture is giving me disconcerting flashbacks to David Bowie as the Goblin King in Labyrinth.

The trademark examiner rejected the application because “balls” (meaning testicles) is considered vulgar. The applicant fought back and argued “balls” isn’t a vulgar term, but the trademark office still disagreed. As of now, there is not registered trademark for Comfyballs, but they might appeal and win. We’ll just have to wait to find out.

So, what does this mean? Can you run out and start selling your own knockoff Comfyballs underwear (presumably next to your knockoff Washington Redskins gear)?

Not really.

A federal registration gives the applicant significant advantages, but the lack of registration doesn’t mean that the owner totally lacks trademark rights. Assuming that Comfyballs and the Redskins are known or available in your state, they have trademark rights and can go after counterfeiters and people that use the marks without permission.

I’m sure the Redskins are known in every state and have a local fan base. Comfyballs might not be sold in every state, I really have no idea, but it looks like they’re trying to get deeper market penetration (heh, heh).