Posted by Eugene Volokh:
More on Allegedly Offensive Trademarks:
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242966707
The Trademark Trial and Appeal Board of the U.S. Patent and Trademark
Office [1]refuses to register the trademark "Pussy", for use on
various drinks, both alcoholic and nonalcoholic. Such a mark, the TTAB
ruled, was prohibited by the statute, because it "consists of or
comprises immoral or scandalous matter" (in the statute's words).
Here's a nice block quote from the decision, itself quoted from an
opinion that held the mark "Black Tail" (to be used for sexually
themed magazines) was not immoral or scandalous, apparently because an
alternative meaning of "tail" was simply "buttocks or the hindmost or
rear end":
Compare In re Old Glory Condom Corp., 26 USPQ2d 1216 (TTAB 1993)
(OLD GLORY CONDOM CORP, with stars and stripes design on condoms
suggesting the American flag, not scandalous); In re In Over Our
Heads Inc., 16 USPQ2d 1653 (TTAB 1990) (MOONIES on dolls, whose
pants can be dropped to expose their buttocks, not scandalous); In
re Hershey, 6 USPQ2d 1470 (TTAB 1988) (BIG PECKER BRAND on T-shirts
not scandalous); In re Leo Quan Inc., 200 USPQ 370 (TTAB 1978)
(BADASS for bridges of stringed musical instruments not
scandalous); In re Madsen, 180 USPQ 334 (TTAB 1973) (WEEK-END SEX
on magazines not scandalous); In re Hepperle, 175 USPQ 512 (TTAB
1972) (ACAPULCO GOLD on suntan lotion not scandalous); Ex parte
Parfum L'Orle, Inc., 93 USPQ 481 (Pat. Off. Exam'r-Chief 1952)
(LIBIDO on perfumes not scandalous) with In re Tinseltown, Inc.,
212 USPQ 863 (TTAB 1981) (BULLSHIT on personal accessories
scandalous); In re Runsdorf , 171 USPQ 443 (TTAB 1971) (BUBBY TRAP
for brassieres scandalous); In re Sociedade Agricola E. Comerical
Dos Vinhos Messias, S.A.R.L., 159 USPQ 275 (TTAB 1968) (MESSIAS on
wine and brandy scandalous); In re Reemtsma Cigarettenfabriken
G.m.b.H., 122 USPQ 339 (TTAB 1959) (SENUSSI on cigarettes
scandalous); In re P.J. Valckenberg, GmbH, 122 USPQ 334 (TTAB 1959)
(MADONNA on wine scandalous); Ex parte Summit Brass & Bronze Works,
Inc., 59 USPQ 22 (TTAB 1943) (AGNUS DEI on metallic tabernacle
safes scandalous); In re Riverbank Canning Co., 95 F.2d 327, 37
USPQ 268 (CCPA 1938) (MADONNA on wine scandalous); Ex parte Martha
Maid Mfg. Co., 37 USPQ 156 (Comm'r Pats. 1938) (QUEEN MARY on
women's underwear scandalous)....
[See also] In re Boulevard Entertainment Inc., 334 F.3d 1336, 67
USPQ2d 1475 (Fed. Cir. 2003) (1-800-JACK-OFF and JACK-OFF for
entertainment in the nature of adult-oriented conversations by
telephone held scandalous); Boston Red Sox Baseball Club LP v.
Sherman, 88 USPQ2d 1581 (TTAB 2008) (SEX ROD for clothing held
scandalous); In re Red Bull GmbH, 78 USPQ2d 1375 (TTAB 2006)
(BULLSHIT for various alcoholic and nonalcoholic beverages,
including energy drinks, and related services held scandalous); In
re Wilcher Corp., 40 USPQ2d 1929 (TTAB 1996) (DICK HEADS� and
design for bar and restaurant services held scandalous).
(The opinion acknowledges that these decisions very much depend on the
standards of the time, so that some of the older decisions might well
not be followed today.)
Recall that after such a decision people remain free to sell and
advertise products using the term; it's just that they don't get
special protection against infringement that they would get if the
mark were registered.
Three side notes: (1) The opinion relies heavily on online sources,
including the results of Google searches and Wikipedia, as well as
foulmouthshirts.com
(2) "This case is distinguishable from the Hershey case where the
Board found a credible double entendre in the BIG PECKER mark based on
the display of a chicken with a beak along with the BIG PECKER word
mark in the specimen of record." Yeah. Right.
(3) Compare [2]this item (paragraph 3) with [3]this follow-up
(paragraph 5).
Thanks to [4]How Appealing for the pointer.
References
1. http://ttabvue.uspto.gov/ttabvue/ttabvue-78690531-EXA-10.pdf
2. http://www.guardian.co.uk/politics/2002/feb/14/1
3. http://www.guardian.co.uk/Archive/Article/0,4273,4356357,00.html
4. http://howappealing.law.com/
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