Those crazy cats at Fark.com are trying to register the phrase “Not safe for work” as a trademark. The application claims they’ve been using the phrase since June 7, 2000, and they have a screenshot from later that summer to back it up. Back then, they’d add the phrase onto the end of their one-line posts:

An archive of nude images of women who have been on Star Trek. Not safe for work.

Not much has changed in the last seven years, except for the addition of some parentheses:

Hannah Montana has an older sister? (Not safe for work)

I’m awfully skeptical about this would-be registration. The most serious problem is that NOT SAFE FOR WORK is what trademark lawyers call “descriptive”—it tells you something about the goods or services it’s used on. That might seem at first glance like a good thing, but it isn’t. U.S. trademark law specific provides that descriptive trademarks aren’t registrable.

The underlying theory is that descriptive phrases are so useful to merchants—in truthfully telling the public about their goods—that no one person should be able to lock up the phrase with a trademark. If you use a made-up word as your trademark for vacuum cleaners (e.g. FLOOMACIOUS), then no one else loses the use of a helpful word, because no other vacuum cleaner maker had any legimate need to call their vacuums floom-anything. On the other hand, if you were allowed to register a common, descriptive word as a trademark for your vacuum cleaner (e.g. SUCTION), then all your competitors would have a hard time telling the public about their own vacuum cleaners. “It’s got powerful vacuum-ness.” doesn’t have the same ring.

The descriptiveness problem with NOT SAFE FOR WORK is glaring. People who click on links described as NOT SAFE FOR WORK do so because those links aren’t safe for work. That’s descriptiveness. Indeed, NOT SAFE FOR WORK is likely “generic” for adult-oriented materials; it’s a phrase that consumers (in this case of NSFW material) use to identify the entire class of goods involved. Don’t give me that SFW garbage; give me some NSFW XXX action! Generic marks are never registrable. Ever.

Let’s have a look at the “class of goods” from the trademark application:

Entertainment Services namely providing a website featuring photographic, audio, video and prose presentations featuring comedic captions regarding current events and online discussions and/or reviews of web materials of an adult nature; Entertainment services, namely, providing a web site featuring musical performances, musical videos, related film clips, photographs, and other multimedia materials; Entertainment services, namely, providing on-line reviews of photogrpahs and /or web postings of an adult nature.

A close read of these categories will show that the NOT SAFE FOR WORK mark is supposedly being used not just on “postings of an adult nature” but also merely on “multimedia materials” with no mention of adultitutde. As to these SFW services, NOT SAFE FOR WORK isn’t descriptive. They’re not not safe for work. Trademark law catches that case, though, by calling them “deceptively misdescriptive.” A trademark that would be descriptive if only it were true is called “misdescriptive;” if consumers would actually believe the claim, it’s “deceptively misdescriptive,” and not registrable.

There is a potential way out, called “secondary meaning.” It’s possible to take a descriptive or deceptively misdescriptive trademark and register it by showing that consumers don’t actually think of the descriptive meaning when they see it, but instead think of your specific goods or services. If it really could show that consumers exposed to NOT SAFE FOR WORK immediately thought, “Ah, Fark!” then the trademark would be registrable. But you know what? That’s going to be some difficult proof of secondary meaning to make out. Did you think of Fark when you saw the title of this post? I didn’t think so.

There are a few other issues kicking about, but I don’t think they’re as serious. There’s a ban on registering “immoral … or scandalous matter” as trademarks. While plenty of NSFW material is both, the phrase “Not safe for work” itself probably isn’t either. It’s, if anything, a gesture in the direction of people’s sensibilities, and the population is generally unperturbed by the phrase.

There’s also a delay question. Fark didn’t register the mark in 2000; it’s trying to register it now. That’s not an automatic bar, the way it would be in patent law. Nor do you need a registration before you can start suing, the way you would in copyright law. Trademark rights are locally enforceable under state law as soon as you start using the trademark on your goods. Fark could try to sue other NOT SAFE FOR WORK purveyors under state law even if this registration is rejected. That said, waiting seven years may have hurt Fark’s case in another way; other people using the magic phrase in the interim will have acquired their own rights to keep on using it. (Of course, that’s assuming that the registration goes through, and that Fark would have had any rights at all under state law, both of which I doubt.)

It’s like a trademark exam question, it really is.