Jonathan Shearer launched a new energy drink that he cheekily named PUSSY. When he applied for trademark registration for the logo shown above, the examining attorney denied registration under Section 2(a) of the trademark act — the section that allows examining attorneys and/or their supervisors to impose their personal morality on any trademark before them. See In re: Shearer (TTAB May 14, 2009) (not precedential)
Under Section 2(a), to be considered “scandalous,” a mark must be “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.” In re Mavety Media Group Ltd., 33 F.3d 1367, 1371, 31 USPQ2d 1923, 1925 (Fed. Cir. 1994). “Scandalousness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, … and in the context of contemporary attitudes.” Id.
Llewellyn Joseph Gibbons said it well in his article, Semiotics of the Scandalous and the Immoral and the Disparaging: Section 2(a) Trademark Law after Lawrence v. Texas, 9 MARQ. INTELL. PROP. L. REV. 187, 248 (2005) at n. 89 (“At best, this ‘substantial portion’ of the general public is a vacuous point on a nebulous continuum. One that is often chosen post-hoc to justify the decision-maker’s preconceived determination.”).
Lets see if Mr. Gibbons is right. In rejecting the mark under Section 2(a), the Examining Attorney wrote:
The applied-for mark PUSSY is slang for ‘female genitalia’ or reference to women sexually and is thus scandalous because such term is described as vulgar, offensive, taboo, obscene and coarse. (Op. at )
The Examining Attorney is clearly not all that bright, since he threw “obscene” in there. If anyone would like to educate him on the legal meaning of “obscenity,” perhaps a little remedial reading of a little known case called “Miller v. California” would be helpful. But, lets read some more of his justification.
… the continually evolving meaning of the term “pussy” has come to mean something more, (sic) than merely a cat, or a catkin, a pus wound, or even that of a weak and cowardly male. In today’s attitudes and mind set, the term “pussy” is used in a most offensive and vulgar manner. Specifically, the term “pussy” refers to female genitalia, desire for sexual intercourse with women and ultimately women as sexual objects.”
I don’t know, I think that any man who thinks that the term “pussy” is something that is “immoral and scandalous” would be a good definition for a fucking pussy too.
The Applicant countered:
“Applicant respectfully submits that its mark is not scandalous on the grounds that (1) the mark is not obscene under its ordinary meaning; (2) the general public does not perceive the mark to be scandalous; and (3) any ambiguity as to the meaning of the mark must be construed in favor of the Applicant.” Applicant’s Brief at 5. In this regard, Applicant argues that the Examining Attorney has failed to meet the burden of showing that the entire mark is scandalous and that the Examining Attorney has disregarded “… the numerous common meanings [of PUSSY] that are not scandalous or vulgar.” Id. at 7.
Applicant continues, “While it may be a slang term for female genitalia, this meaning clearly does not apply to Applicant’s all natural energy drinks, whether explicitly or implicitly. At best, the term is a double entendre that has been used for more over (sic) 100 years.” Id.
In his reply brief Applicant argues further that we must look at his mark in its entirety, stating, “Nothing about this design is suggestive of female genitalia.” (Op. at 7)
The TTAB clearly had its mind made up before examining the case. All three judges were appointed in 2005 and 2006 — the high water mark of the religious conservatives’ grip on power in Washington. You can rest assured that none of these three douchebags got where they are by respecting the constitution or due process, and why should they begin now.
A joyful little quote from the TTAB:
Section 2(a) may be difficult to define, we reject the notion that those boundaries are coextensive with the boundaries of permissible, that is, uncensored, artistic expression. Neither vaudeville nor South Park provide a useful guide for applying Section 2(a). (Op. at 21)
However, the TTAB has it precisely wrong here. If a highly-rated show like South Park does, indeed, use a term regularly, and even basic cable doesn’t censor it, that should be highly persuasive evidence that the American people can handle the word. Nevertheless, the nanny-staters decided that in modern-day America, we must endeavor to never offend anyone, lest their little hearts break into a million Jesus-shaped pieces. Even the double entendre, previously approved of in everything from James Bond movies to daytime television, is no longer acceptable to the TTAB.
We reject out of hand the argument that, in the context of beverages, including natural energy drinks, the public would view the term PUSSY as conveying a double meaning. 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. In re Hershey, 6 USPQ2d at 1470, 1472 (TTAB 1988).
In this case Applicant posits that his PUSSY NATURAL ENERGY mark, when used on an energy drink, on the one hand would suggest either a cat, a weak or cowardly man or boy, a catkin of the pussy willow, or a pussy wound, and simultaneously on the other hand, might suggest PUSSY in the vulgar sense.
We do not find this proposition credible, nor has Applicant provided any support for the proposition. We see no double entendre in this context. We conclude so whether we view the term PUSSY alone or as part of Applicant’s full mark. Furthermore, there is nothing in the display of the mark or the additional wording, “natural energy” which affects the perception of the term PUSSY. Accordingly, we
reject Applicant’s double-entendre argument. (Op. at 22)
The Board then looked at the relevant marketplace and concluded that since the energy drink market is one that seeks to grab the consumer’s attention, that it should be held to a different standard than other products.
The Examining Attorney has provided additional evidence which not only confirms that the term PUSSY is vulgar, but evidence that the attention-grabbing meaning is the only reasonable meaning to conclude the relevant public would perceive in this context. An excerpt from factexpert.com discusses the highly competitive marketing of energy drinks, stating:
Energy drink packaging is more often flashy and bright than subtle and understated. The primary consumer group of energy drinks includes extreme sports enthusiasts, young adults and teenagers, and the hip-hop crowd. … Because this group is a group excited by speed, energy, flash and instant thrill, most energy drink packaging appeals to these tastes.
In this context, it is not reasonable to conclude that the relevant public will perceive PUSSY as referring to a cat, a weak or cowardly man or boy, a catkin of the pussy willow or a pussy wound. The offensive, vulgar meaning is the only one which makes sense in this context. (Op. at 24).
Finally, the Board concluded that a substantial composite of the public, “in particular women,” (as evidenced by the Examiner’s quotation of unsigned comments on a typepad blog) would find that PUSSY has a vulgar, offensive, sexual meaning.
Here is some poetry for the pussy Examiner and the pussy judges. By that, I use the definition of “pussy” that refers to those with little courage.