And, you’re right about Boulevard Entertainment. It does hold that. However, in that case, “JACK OFF” was held scandalous where all dictionary definitions were considered vulgar. See also In re Tinseltown, Inc., 212 USPQ 863 (TTAB 1981) (BULLSHIT held scandalous where all dictionary definitions of that term were considered vulgar).

However, I think that it is shabby reasoning to say that just because a dictionary editor (or even *all* dictionary editors) think that a term is “vulgar,” then the term is automatically “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation.”

Furthermore, I think that the brush-off that the TTAB gives to the “trademarks as commercial speech” issue is unsupportable.

I agree that the TTAB is never going to reverse course without getting the Fed. Cir. to force its hand. Trust me, I’m waiting for the opportunity to do so. :)

As for evidence, in this case the Board had two dictionary definitions from reputable dictionaries (Random House and The New Oxford American Dictionary) indicating that the word “rod” is vulgar, and the applicant even admitted that SEX ROD “is intended to possess a sexual connotation.”

In Boulevard Entertainment, the Federal Circuit explicitly held that “in a case in which the evidence shows that the mark has only one pertinent meaning, dictionary evidence alone can be sufficient to satisfy the PTO’s burden.” 67 U.S.P.Q.2d at 1478. Given the two dictionary definitions of record here, and the applicant’s admission, I guess I don’t share your view that the evidence was “shoddy.” I suppose we’ll just have to agree to disagree.

In City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), the U.S. Supreme Court held that
if the government seeks to restrict First Amendment protected activity in order to combat compelling
harms such as prostitution, crime, and lower property values, it may only do so if it reasonably relies upon competent evidence to do so.

The Board has no authority to determine that 2(a) is unconstitutional, that is true. However, the Board does have the authority (and the obligation) to consider the First Amendment and whether evidence is actually persuasive in its application of Section 2(a).

In all fairness to the Panel, it seems that the Applicant provided scant evidence of his own – and confronted with bad evidence on both sides, the TTAB simply relied on the lousy evidence that fit its preconceived notion. However, the Panel had no need to even rule on the 2(a) issue. Given that there was no bona-fide intent to use, the inquiry was over. This expansive (and Victorian) interpretation of 2(a) was neither necessary nor proper.

I disagree with your comments about the TTAB not getting the constitutional memo and the USPTO being “governed by Victorian morality, and it intends to make sure that we don’t forget it.”

First, whether the Board agrees or disagrees with your First Amendment analysis is irrelevant, because the Board simply “has no authority to determine, either generally or with respect to respondent, whether Section 2(a) is overbroad or vague, or to declare provisions of the Trademark Act unconstitutional.” Harjo v. Pro-Football Inc., 50 U.S.P.Q.2d 1705, 1710 (T.T.A.B. 1999), rev’d on other grounds, 68 U.S.P.Q.2d 1225 (D.D.C. 2003).

Second, in 2003 the Federal Circuit expressly rejected a constitutional challenge to Section 2(a) and, citing McGinley and Mavety, stated, “We adhere to the reasoning set forth in those cases and reject [the applicant's] First Amendment challenge.” In re Boulevard Entertainment Inc., 67 U.S.P.Q.2d 1475, 1480 (Fed. Cir. 2003).

Your beef is with the Federal Circuit, not the Board or the PTO.

Well, as someone who gets called “Mark” all the time… mea culpa. ;)