I hope you haven't forgotten about me! I've been working on an article for another blog and well, you know.
Anyhow, I saw this article on Huffington Post the other day. The article is about a trademark application that was rejected because the USPTO deemed it "vulgar." The trademark was "COMFYBALLS" for men's underwear, which has a special pouch to cradle the male genitals.
If you're not aware, not everything can be a federally registered trademark. According to Section 1203.01 of TMEP, or Section 2(a) of the Trademark Act, there is an absolute bar to the registration of immoral or scandalous matter. Sounds harsh.
How do you determine if something is scandalous? You look to its ordinary and common meaning. In re Riverbank Canning Co., 95 F.2d 327, 328 (CCPA 1938). This may be established by referring to court decisions, decisions of the TTAB, (and I love this one) dictionary definitions (does urban dictionary count?). In re McGinley, 660 F.2d 481, 485 (CCPA 1981). Whatever the ordinary and common meaning, it must be shocking to the sense of propriety, offensive to the conscience or moral feelings or calling out for condemnation. Id at 486. AND, the meaning must be determined in the context of the current attitudes of the day. In re Mavety Media Group Ltd., 33 F.3d 1367 (Fed. Cir. 1994).
Just to give you some examples, here are some marks that were considered to be scandalous under Section 2(a) in the past.
- Mark containing a photograph of nude, reclining man and woman, kissing and embracing for social club services
- BULLSHIT for accessories of a personal nature (hand bags, purses, belts, etc.)
- WASHINGTON REDSKINS for a football team
Here, we have COMFYBALLS. The USPTO said that "balls" means only one thing - a man's testicles. For me personally, "balls" isn't an offensive term... Not only that, but I'm certainly not "shocked" or "calling out for condemnation" knowing that this mark is used to identify an underwear brand. I think that the founder of the underwear brand, Anders Selvig, has it right when he said, "Eventually, balls may be allowed." If we're determining the meaning in the context of the current attitudes of the day, I'm sure kids today 10 or 20 years from now aren't going to be offended by the term "balls."
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