X-Play Ties Up 'Not' Parodies

LOS ANGELES—It's not that we'd doubt Jeff Mullen's word on most topics, but when AVN received a press release claiming that Mullen's company, X-Play, had won a trademark for use of the word "Not" in the title of adult movies, we were a bit suspicious—and the fact that he added that, "X-Play's only problem now is that they cannot locate the little letter 'r' inside the circle on their computers that signifies a U.S. Trademark" only served to heighten our suspicions.

"It's actually not a joke," said X-Play co-owner Scott David. "Our distributor Hustler got into the parody game after seeing our success and wanted to call their first title 'Not' and then the title but we talked with them and they agreed that was our unique brand and created their own special prefix and now we have finally been awarded our trademark. We submitted it four times, and on the final time, they [the government Patent and Trademark Office] finally agreed because we had a lot of information every time it was published in a magazine."

"I originally wanted it on 'Not... XXX' but the attorneys worded it so that it's 'Not' used in a conjunction with a porn title," Mullen explained. "But we've been having arguments about it. Somebody said, 'What if they made a title, I Love You But I'm Not Going To Date You?' We couldn't stop them from doing that; that would be very difficult to do, and probably impossible. But we just wanted to protect ourselves from somebody using 'Not' at the beginning of a porn parody title, or 'This Is Not.'"

For both Mullen and David, the issue is mainly quality control.

"People are popping out parodies every five minutes," David charged. "Bad ones are coming out, and what's going to happen is, you've got a fan who's into parodies, and if he gets a couple of bad ones, he's done."

"That's the point," Mullen agreed. "There are a number of companies doing parody very well, but there's a ton of companies doing it and just phoning it in, and I'm not saying that anybody who's used the word 'Not' has phoned it in, but I'm just saying that we don't even want to take the chance."

"What really brought this to the forefront was when we saw our friends at Wicked doing Not Really the Dukes of Hazard," Mullen continued. "It's really a clever title but it does have the potential to confuse our buying audience that perhaps it's our title, so that's why; we're just trying to avoid confusion. And of course, the irony of this whole thing is that what we do best is do parody of existing classic television shows, so there's a certain irony in our trying to protect our mark when we are dealing with reworking other people's marks, so it's kind of funny. That little bit of humor isn't lost on us; we're not taking ourselves too seriously."

And has X-Play gotten any reaction from any of the mainstream companies whose titles it's parodied?

"The very first day of production on Not the Cosbys XXX, we had a FedEx sent to us from Carsey-Werner Productions, basically letting us know to beware, and we better not do this," Mullen revealed. "We've had letters like that in the past, but those companies are too smart to sue us, and the reason is that they know that if they did, they'd bring a hell of a lot more publicity to our movies than we get just being little porn movies. There's a certain segment of the population that knows about our movies, but if a company was to sue us, then the entire population would soon learn about us, which would drive our sales through the roof and we would no longer be a porn company; we would be a mainstream company in terms of sales."

Still, Mullen, who writes the scripts for such award winners as Not the Cosbys XXX and Not Married With Children XXX, is careful not to tread too heavily on mainstream toes.

"We didn't change the names of characters, but like for instance with Not the Bradys XXX, we never refer to them as 'the Bradys'; it's always 'Mr. and Mrs. B,' that kind of thing," Mullen explained. "But we used the first names of the characters because to me, it would just seem so lame if we didn't. And yet we are still protected by the fair use area that we're working in: Obviously parody, artistic purposes, the whole nine yards. So I think that some others are rather flippant about it, and are whipping it out very quickly, and all it takes is the wrong one to come out to start a lawsuit, but I think we're in such a protected area."

"And also, these big mainstream companies, I really truly believe they almost get a kick out of it," he continued. "It's almost like a badge of honor in a small way to have us do a parody of their show. When we were doing The Bradys originally, I was talking to the attorneys over at Paramount, which owns The Brady Bunch, and I said, 'Are you guys ever going to sue us?' And they said, 'Sue you? Why would we sue you?' And this is great, because they had a boxed set of The Bradys coming out the same time our movie came out, so they were able to plug it on their TV shows like Entertainment Tonight and The Insider; they would say 'The porno is available in stores, but you can also get the new boxed set of The Bradys available now'; that kind of thing. Cross-promotion, and plus the fact that we knew we would never get sued by The Bradys because here the company that owned The Bradys along with the Sherwood Schwartz estate—think about that; they build it up on TV, make it popular, then they sue us? A judge would throw that out in two seconds."

But convincing the U.S. Patent and Trademark Office to give them a trademark on a simple preposition wasn't easy.

"We had been trying to get this thing for a year and a half and we kept getting rejected over and over," Mullen said. "What happened was, they basically said 'bullshit' on it, and so we had to prove that ours was a unique brand within the parody environment. Well, there weren't a lot of parodies out a year and a half ago, but as more parodies came out, we kept clipping more articles and ads from AVN magazine and taking them off the internet when we'd see the stories on them, and we built up this big library of proof that other companies were doing parodies, but with different names than ours. Like New Sensations did Seinfeld: A XXX Parody; Hustler did This Ain't Star Trek, and there are other companies that are doing this."

Entertainment attorney Greg Piccionelli likened X-Play's trademark to marks issued for other types of series.

"It's basically the type of mark that allows you to trademark a series, much like the 'For Dummies' book series," Piccionelli told AVN. "You could have [blank] For Dummies, so the 'For Dummies' is trademarked in association with another word that fills in the blank: Algebra For Dummies, Calculus For Dummies, Website Design For Dummies, whatever the case may be. But the 'For Dummies' then is the part that is trademarked. I spoke to Jeff a while back on the subject of trademarking; he had a trademark in process at the time he was talking to me about it, and I imagine that it is along those lines."

Part of the work that went into acquiring the trademark was convincing others to help X-Play keep the mark unique to their company.

"We had a problem with another company a while ago that was going to do 'Not' something, and I called them up and I said, 'Hey, we're applying for a trademark; would you change your title?'" Mullen said. "And they basically laughed at us, and said, 'That's not trademark-able but we'll change it out of respect for you,' and they changed their title. And I was like, 'Thank you.' And then it went to what's called the objection phase, in which people have 30 days to object to a trademark application, and that's when we shut our mouths and didn't say anything."
"The 30 day objection phase expired on March 3, so that means now it just has to be issued, and it takes two months for it to be technically issued, but it's already been approved; it's good to go. But technically we can't use the little 'R' until it's finally documented, according to them, and that process takes two months, but there's going to be no rejection, no reversal; it is what it is."

Mullen said X-Play will begin using the "®" symbol almost immediately; almost certainly on Not Married With Children 2 and Not Airplane XXX, both of which street on March 23.

"I figure we can borrow a few from Digital Playground; they've got plenty of those little R's lying around since they use them on every girl's name, so they can loan them to us," Mullen joked. "I'm always trying to be kind of humorous in a weird way, you know, but we take what we do very seriously, even though everything we do is goofy."

[Note: This article has been slightly revised from its original version.]