Trademark Appeal Board Refuses to Register Vulgar Phrase

The Trademark Trial and Appeal Board (TTAB) recently refused to register a phrase that includes a vulgarism used to describe a body part that is also often used in reference to a person who is rude, arrogant, or otherwise obnoxious.
(The term, which dates back to 15th century Middle English, has seven letters and begins with “a.”)
The applicant sought to register the phrase “A****** Repellent” for a line of gag gifts. He first applied to register the mark for an “amusement device, namely, a can with a spray top.”
The product, purportedly marketed by the “Acme Left-Handed Widget Corporation,” is “guaranteed to repel a complete total repulsive a******.”
The trademark examiner disallowed the registration under Section 2(a) of the Trademark Act, which prohibits marks that include “immoral, deceptive, or scandalous matter.”
According to the TTAB’s decision,
The determination of whether a mark is scandalous is a conclusion of law based on the underlying facts. [cite] The U.S. Patent and Trademark Office has the burden of proving that a trademark falls within the prohibition of Section 2(a). Id. To prove that the mark A****** REPELLENT is scandalous, it is sufficient if the Examining Attorney shows that the term is vulgar. [cite] “[T]he threshold for objectionable matter is lower for what can be described as ‘scandalous’ than for ‘obscene.’”
The examiner presented dictionary evidence that the term was still deemed vulgar. She also showed that it was not registered for any other goods or services.
The applicant argued that the widespread use of the term in entertainment media had made the word merely “impolite” and that many retail stores offered t-shirts, games, and books that included the term at issue.
The TTAB disagreed.
According to the Board’s decision,
Applicant contends that though “a******” might once have been scandalous, under modern standards of usage it is not. … As we have previously expressed, a term does not lose its profane meaning simply because it may be used more frequently.
The Board quoted the following passage from the Vocabulary.com website:
If you call someone an a******, they’re probably doing something not just stupid and annoying, but mean. Like all slang words and obscenities, this is a word you need to be careful about using. Saying a****** in class, in a paper, at a job interview, or even on television could get you in serious trouble. If you’re not alone with your buddies, stick to a safer word like jerk or doofus.
The Board also quoted from a precedential 1981 ruling that disallowed trademark registration for a term for bovine excrement commonly used to refer to something nonsensical or untrue:
We do not say that there has not been an increase in the amount of usage of profanities in our contemporary society and a diminution of the social inhibitions to such usage. No person blessed with the gift of hearing can fail to be cognizant of this much freer use of obscenities in contemporary America. Neither is it our function to moralize about this trend. However, the fact that profane words may be uttered more freely does not render them any the less profane. Nor does this fact amend the statute by which we are required to determine the registrability of such matter as marks.

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