Pussy TTAB upholds pussy Examiner and says that Americans are too pussified to deal with “PUSSY”

May 15, 2009
The TTAB says you can't handle this.

The TTAB says you can't handle this.

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 See In re: Shearer (TTAB May 14, 2009) (not precedential)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.


It Doesn’t Get Much Lower Than This – “Susan Boyle Does a Porno?”

April 20, 2009

Representing adult entertainment industry clients makes my cocktail party discussions somewhat interesting (to say the least). Often, I get asked “okay, but where do you personally draw the line?” I have always said that I’ll know it when I see it.

I have now seen it.

An adult entertainment company has registered susanboylexxx.com and has placed an offer on that site to pay Susan Boyle $1 million if she will lose her virginity on camera. Aside from the fact that this has to be one of the most douchebaggy things I’ve ever seen, the company that registered that website is certainly violating 15 U.S.C. § 1129 and probably violating 15 U.S.C. § 1125(d).

If Susan Boyle wants to simply collect $100,000 plus attorneys fees, she ought to sue them instead of taking them up on her offer.

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Whatever happened to playing fair?

April 20, 2009
Matthew C. Sanchez

Matthew C. Sanchez

By Matthew Sanchez

A few recent intellectual property disputes have highlighted the fact that the decision to pursue legal action is both a legal and a moral choice.  While concepts such as “fair use” help to ensure protection of both intellectual property rights while promoting creative expression, they can’t replace a simple concept we all learned in kindergarten:  “treat others the way you’d like them to treat you.”

A couple of days ago, New York TV news station CW 11 convinced YouTube to take down a video from prank group Improv Everywhere that copied part of a CW 11 newscast.  The twist as that the CW 11 newscast itself copied an earlier Improv video to unintentionally hilarious effect.

In the original Improv video, the troupe hijacked a staged funeral as an April Fools Day prank on viewers and passers-by.  CW 11 reported the hijacking as a real prank on real funeral-goers that might have gone too far.  The newscasters missed the fact that the prank wasn’t on the fake funeral-goers but, instead, on those who believed the video was real.

Judged solely on the legal merits, CW 11 might have the (slight) upper hand on the competing questions of infringement.  CW 11 used only snippets of the Improv video and added news commentary, while Improv seems to have simply lifted a portion of CW 11 broadcast and uploaded it as is.  Its arguable whether Improv has a fair use argument:  the group does have in its favor that the use was noncommercial and it put the clip in wildly different context — that is, exposing CW 11’s blunder.

Regardless of the legal merits, there is no reason for copyright law to be involved here.  CW 11 borrowed from Improv, and Improv then borrowed from CW 11.  Both created expression that would not have been possible otherwise.  If not for this needless legal dispute, we would all win.

A even more disappointing recent example comes from “fair use” darling Shepard Fairey.  For those who haven’t been following along, he’s the defendant in the Associated Press’ big copyright flap over the Obama “HOPE” poster.

Last month, Fairey’s company Obey Giant Art Inc. alleged trademark violations in a cease-and-desist letter to Larkin Werner, a Pittsburgh Steelers fan who created a character that plays off of Fairey’s “Obey” images.  Dubbed “Steelerbaby,” Werner’s character is a baby doll in a knit Steelers uniform who appears in images and merchandise, typically accompanied by an admonishment to “Obey” or “Obey Steelerbaby.”

Fairey has built a career and no small amount of celebrity by creating new art from existing material.  The Obama poster, based upon a photo allegedly owned by AP, is a notable example.  Werner’s Steelerbaby, which is more Internet meme than profitmaking venture, is no different.  Like CW 11, Fairey might have the better end of the legal argument, but a little dose of common good sense shows that he (or his company) doesn’t have it “right.”

It’s my humble opinion that our IP system can only function alongside free creative expression if IP-holders — and IP-holder’s lawyers — first ask not whether they can win, but whether they should draw the line in the sandbox at all.

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Goldman Sachs Tries To Bully Blogger

April 14, 2009

 I've got news for you: the Supreme Court has roundly rejected prior restraint!<br>  So Goldmansachs666.com will remain up as this case slowly winds its way through the courts like the man in the black pajamas wound his way through the jungles of 'Nam.

I've got news for you: the Supreme Court has roundly rejected prior restraint!
So Goldmansachs666.com will remain up as this case slowly winds its way through the courts like the man in the black pajamas wound his way through the jungles of 'Nam.

Michael Morgan is a Florida blogger who is a little bit upset with Goldman Sachs and its business practices. To voice his displeasure, he registered the domain name goldmansachs666.com and goldmansachs13.com and forwarded them to his blog on the financial giant.

Naturally, Goldman Sachs doesn’t like to be criticized. Who does? Nevertheless, I fail to see how they could have perceived Morgan as a threat to their financial well being or anything else. The fact is, Mr. Morgan’s blog just isn’t that good. The layout is visually painful. The writing isn’t engaging. After muddling through it for about 15 minutes, I still don’t really get what all the fuss is about. In other words, Morgan’s blog was destined for the blogger derelict heap. Morgan has a full time job, had very few readers, and probably would have either gotten bored with his griping, or his blog would have been ignored to death.

With Morgan’s blog plodding along in obscurity, enter John A. Squires of Chadbourne and Parke, LLP. Now this guy has an impressive background: He was top of his class in law school, on his law school’s moot court team, on law review, and an Order of the Coif inductee. Sounds like a pretty smart guy, no? Smart enough to become co-chair of the intellectual property practice at a major law firm. Smart enough that he “is widely recognized in both the financial services and technology sectors as one of the country’s top experts on the issue of patent-eligible technologies.”

Goldman Sachs' demand letter <br>Click to enlarge

Goldman Sachs' demand letter
Click to enlarge

Nevertheless, he put his name to one of the dumbest trademark demand letters I have ever read. Go ahead, click it. If you practice trademark law, don’t drink any liquids while reading or you’ll shoot them out your nose as you’re laughing and then you might have to change your shirt.

This letter seems to anecdotally confirm two things I’ve preached for years:

1) Patent guys don’t necessarily know trademark law,

2) A lawyer who doesn’t understand public relations is only half a lawyer.

I’m just guessing here, but I’m reasonably certain that Mr. Squires did know better. This demand letter just screams “reluctantly written to shut a client up.” Patent lawyer or not, the guy had to know that his trademark claims were just plain stupid. If goldmansachs666.com creates confusion in the marketplace, then I guess that I had better stop calling my balls my “nutsack,” because someone might come along and expect them to sweat stock options.

Personally, I would never have affixed my signature to this piece of dung. I’ve learned the art of “client control.” That’s when you tell someone “my credibility is worth more than what you want to pay me to write this unsupportable demand letter.” Sadly, many lawyers never learn this skill. I’m certain that some tool at Goldman Sachs told Squires “I don’t care if we can’t back the claims up, just send the letter to try and scare this little mouse of a blogger.” (Or maybe I’m just inclined to give the lawyer the benefit of the doubt).

Although I would love to say that I would continue to that same big shiny set of brass balls if my client were a gazillion dollar financial powerhouse that shits rubies, I won’t judge Mr. Squires until I walk a mile in his Bruno Maglis — especially since I’m 98% certain that somewhere, he has an email to his client telling them that the claims in the letter are just one molecule away from being pure pharmaceutical-grade fecal goodness.

At least I hope so… because the mouse, he bite.

Squires’ letter ends with a threat that if Morgan doesn’t confirm, in writing, that he will stop using the words “Goldman” and “Sachs,” they just might sue him. Well, April 18 is a Saturday, Walter Sobchak doesn’t roll on Shabbos, and Mike Morgan did respond in writing — with a lawsuit of his own.

Morgan probably figured that if Goldman Sachs wasn’t bluffing, they would file suit against him in New York. Morgan lives in Florida, and would likely rather just have it out in Florida than travel to New York. So, given that there was a bona fide legal question — created by Squires’ dumb letter, Morgan had the right to file suit to just get the whole thing over with. Naturally, Goldman Sachs probably isn’t too worried about the financial consequences of this suit. The most that Morgan will win is a piece of paper that says he has the right to use the words “Goldman” and “Sachs” to criticize Goldman Sachs. But what a piece of paper it will be.

More importantly, now that he has filed suit, a lot more people are going to take note of this dispute. I’ve been following it for a little while myself, and until I received a copy of Morgan’s complaint, I didn’t really find it interesting enough to write about. Guy gripes. Company whines. Dumb demand letter. Yawn. Happens every day.

What doesn’t happen every day is that the griper has the coglioni to tell one of the biggest financial institutions in the world “You wanna step outside? Fine, lets go.

So now what happens?

Hopefully, Mr. Squires tells his client “I told you so,” and keeps a copy of the memo he sent them telling them that this was all a really dumb idea and that they should have just ignored Mr. Morgan’s blog. If he didn’t tell them so, then someone at Goldman Sachs should re-think how they choose their attorneys.

Once that is all settled, Goldman Sachs should just gracefully back away from this — issue a statement that they reconsidered their position, and it all goes away. The first rule of getting out of a hole is to stop digging. However, I predict the opposite will happen: Goldman Sachs will dig in, the Spin Doctors song “Little Miss Can’t Be Wrong” will be played over the PA system at Chadbourne and Parke, and we will see both an answer and a counterclaim that will be just one hair shy of being frivolous enough to warrant sanctions because some nitwit will think that it will scare Morgan into submission… and the case will draw even more attention to this once-obscure blog.

And then we’ll see if Mr. Morgan’s reporting on Goldman Sachs’ misdeeds grows any legs. He already has a conference call scheduled to gather the volunteers who have rallied to his side.


I Told You So, GoDaddy!

April 14, 2009

godaddyboobs

Thomas O’Toole writes about how one of my theoretical posts has now come to life.

Prof. Marc Randazza had a great post Is GoDaddy a Mass Cybersquatter? on his Legal Satyricon and, while it’s great fun to muse about these things hypothetically, I think everyone agrees that live action is best. Now we have it in Ubid Inc. v. Godaddy Group Inc., No. 09-2123 (N.D. Ill., complaint filed April 6, 2009).

Read the rest of O’Toole’s piece, Click Ads on GoDaddy Parked Pages Draw Cybersquatting Suit.

And thank you Thomas for noticing!


Confusion?… We don’t need no stinkin’ confusion!

April 7, 2009

by Jason Fischer (follow me on twitter)

The Wall Street Journal published a story about how Monster Cable was trying to bully the owners of a mom-and-pop business into changing their name. According to David Tognotti, Monster Cable’s general manager and an attorney, the company considers “Monster” a famous mark — on a par with Barbie dolls or Camel cigarettes, giving them the right to prevent an indoor mini golf establishment from calling itself “Monster Mini Golf.” (I guess Mr. Tognotti’s IP professor didn’t fill him in on how much success Mattel has had keeping people from using its “Barbie” trademark. See here and here.) He even cites to “McCarthy on Trademarks” as his authority. However, WSJ interviewed Professor McCarthy, who pointed out that federal courts get to decide which marks are famous, not general managers of stereo cable manufacturers.

Other ridiculous enforcement efforts, pursued by Monster Cable:


Yes, you should have hired a trademark attorney…

March 31, 2009
I'll settle for.... One. Hundred. Gazillion. Dollars.

I'll settle for.... One. Hundred. Gazillion. Dollars.

By Fischer and Randazza

Another day, another cautionary tale about how staying at a Holiday Inn Express doesn’t qualify you to practice law.

Enter Jamil Ezzo, an enterprising Internet maven, who runs the website at www.LocatePlasticSurgeon.com. Mr. Ezzo decided that he should file for a federal trademark registration on his incredibly creative and original business name, “Locate Plastic Surgeon,” and in an effort to give his fledgling new business venture a leg up over the wasteful spenders that were his cutthroat competition, he figured that he should forego hiring a lawyer to do it for him. Great plan, Jamil, except that any IP attorney who’s worth his salt would have told you that your proposed mark is pretty much worthless and you shouldn’t waste your time or money trying to protect it.

Well, who needs an expensive, fancy lawyer to tell you, when the examining attorney at the United States Patent and Trademark Office will do it for the price of filing? Except that it helps to know what you are reading when the office action comes back:

Judging from the applicant’s specimen of use, the services appear to be in the nature of offering a website that allows users to identify the location of – i.e., locate – surgeons specializing in plastic surgery. Thus, the mark is merely descriptive as applied to the services because it describes a function of the applicant’s website.

Translation: Your mark is lame, and it will be really difficult to justify giving you the right to exclude everyone in your field from using the same words in association with their business.

[A]lthough the trademark examining attorney has refused registration on the Principal Register, applicant may respond to the stated refusal(s) under Section 2(e)(1) of the Trademark Act by amending the application to seek registration on the Supplemental Register.

Translation: We’ll take your money to put your mark in the cheap seats, but you’re gonna have to prove that the relevant marketplace identifies your service with the proposed mark before you can hope to win a claim in federal court.

Mr. Ezzo took the “advice” of his “attorney” and registered his ultra-awesome mark on the “Supplemental Register” – whatever that is. Now he thinks he can stop anyone from using the phrase “Locate Plastic Surgeon” on the internet, and he has filed a complaint in the Middle District of Florida seeking to do just that. His targets: Google, AOL, PlasticSurgery.org (website for the American Society of Plastic Surgeons), PlasticSurgery.com, FindYourPlasticSurgeon.com, and FindCosmeticSurgeons.com – to name a few.

Keeping with his normal business practice, Mr. Ezzo has decided that he can handle this bit of litigation on his own. He drafted the complaint himself, if you couldn’t tell. The first eleven pages comprise large, copied-and-pasted portions of the United States Code – much of which have nothing to do with Ezzo’s “alleged” cause of action. His “claims” include fraud (with no indication of the supporting facts), misrepresentation (without any mention of what was represented to him), rescission (wait, that’s not a cause of action… it’s a remedy), and injunction (ditto). What does he want? Only $90M, representing the lost subscription fees from 5,000 subscribers who would have found Mr. Ezzo’s site, but for the alleged fraud, misrepresentation, rescission, and injunction of the defendants. Of course, that number has been tripled, because this is absolutely an “exceptional case.”

The only thing “exceptional” about this case is how exceptionally foolish it was to file. Normally, in trademark cases, the parties bear their own fees. However, in “exceptional cases,” the prevailing party may also get an award of attorneys’ fees. If I’m the oddsmaker on this case, even one of my law students could likely get this thing dismissed and get the defendants an attorneys’ fees award against Mr. Ezzo. I’d imagine that Google and AOL are going to have no difficulty bringing a complete and total smackdown.

Sadly, one consult with a qualified trademark attorney (which might have been free, if he found the right one) could have saved Mr. Ezzo lots of time, energy, money, aggravation, and humiliation. He would have learned that his registration was not worth pursuing, at the least. At best, he would have avoided filing this laughable lawsuit – which will probably end with him on the hook for some attorneys’ fees.


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