A trademark will be considered vulgar or scandalous if the public perceives a vulgar or scandalous meaning.
We all know what you mean, so this trademark is not registrable.
The details matter. You will have to present your proposal to an Intellectual Property attorney for guidance.
My comments have been made without discussion. An attorney client relationship has not been established. There may be conflicts which prohibit my providing you with specific legal guidance. Any contact with you beyond these few general words will start with a disclosure of opposing parties so that a conflict check can be made. You should discuss with an attorney.
It is unlikely you could try for a mark with a vulgarity 'bleeped' out, especially if the work were clearly understood. For example "$HIT." Furthermore, trademarks for an obviously 'dirty' double entendre have also been refused registration.
However, nothing prevents you from selling under this mark; you just are unlikely to get a Federal Registration.
You will likely not be able to register the word due to it being vulgar or scandalous. The public would understand it to be vulgar. Federal trademark law provides for an absolute bar to the trademark registration of immoral or scandalous matter. This basically means that if your trademark contains offensive or shocking language, then the Trademark Office will likely refuse to register your trademark.
It's ultimately up to the examiner, but there is a high likelihood he/she will refuse registration for just the reason you are seeking to avoid by changing the vowel. However, you can still use the term/phrase in commerce and acquire common law trademark rights, so have at it.
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In my experience, the PTO has been very vigilant in refusing registration that hints of vulgarity.
The foregoing answer represents general information only and does not constitute legal advice. Further, no attorney-client relationship exists as a result of reading or relying on the foregoing answer. You should seek sound legal advice from a competent IP lawyer.
As you note, a trademark containing the word "sh*t" is not registrable. The closest that anyone has come, I believe, is "PLAY 2 WIN OR TURN YOUR SH*T IN!" Next would be "$#*! MY DAD SAYS." You and your own trademark attorney will have to figure out your strategy for registering something similar. Registration, however, is NOT the end-all and be-all of trademark rights. Even without a registration you can still create, maintain and protect a trademark that contains the word "sh*t." The Trademark Office may not register that mark but that is neither here nor there. Your rights still exist.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
NO. The USPTO will consider a pseudomark to be equivalent. A quick TESS search find not a single sh*t mark registered. So, any thought of doing what you suggest is bullsh*t.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
As the others have noted, I would expect a problem and some push back from the USPTO. There may be some clever arguments to make, but to have counsel make them will greatly increase the cost for this effort with no guarantee of legal outcomes. I think I would discuss it over in more detail with IP counsel in private.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property. See the link below for a brief article from Fox News on the importance of the due diligence process and our overview guide.
I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
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