Wednesday, January 12, 2005

TTAB Sees "A**HOLE" As Scandalous

The Board took a dim view of the mark "THE COMPLETE A**HOLE'S GUIDE TO ..." for a "series of books providing information relating to advice, counseling, self-help, and humor." It affirmed a Section 2(a) refusal to register on the ground that the mark comprises immoral or scandalous matter. In re Zaharoni, Serial No. 76351811 (January 4, 2005) [not citable].

The Examining Attorney relied on dictionary definitions and Internet articles to show that "A**HOLE" is a shortened version of "asshole," and "asshole" is a scandalous term. (E.g., a article bearing the headline: "Trump revelation. 'I am an a**hole.'").

Applicant Daniel Zaharoni argued that "asshole" also has the non-vulgar meaning of "anus, the posterior opening of the alimentary canal," and thus his mark should be registrable under In re Mavety, 31 USPQ2d 1923 (Fed. Cir. 1994)[BLACK TAIL not scandalous for adult magazines]. Moreover, according to Zaharoni, society does not consider "a**hole" to be scandalous, but rather "has adopted the term . . . as a non-offensive alternative when attempting to categorize provocative products or people."

The Board found the PTO's argument to be well bottomed. The dictionary definitions of record "overwhelmingly indicate that the term 'asshole' is vulgar slang for a contemptible or detestable person." It is that definition that is referred to in Zaharoni's mark, not the body part. In the context of applicant's books, "the non-vulgar meaning of 'asshole' has no applicability."

Thus the Board readily distinguished this case from Mavety, in which the term "tail" in the context of applicant's adult magazines had both a vulgar and equally applicable non-vulgar meaning. Here there was no such double entendre: i.e., an a**hole is an a**hole, and there's no two ways about it.

One piece of evidence that might have helped Zaharoni was absent from the record. The Complete A**hole's Guide to Handling Chicks is available at Wal-Mart. So how scandalous can it be?

Text Copyright John L. Welch 2005. All Rights Reserved.


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