Monday, May 18, 2009

TTAB Affirms PTO's Latest Section 2(a) Scandalous Refusal

In a 27-page decision, the Board affirmed a Section 2(a) refusal to register the mark PUSSY NATURAL ENERGY in the design form shown immediately below for various beverages, including energy drinks, finding the mark to be scandalous. The Board concluded that the mark "is offensive when viewed in the context of the goods identified in the application from the standpoint of a substantial composite of the general public according to contemporary attitudes." In re Shearer, Serial No. 78690531 (May 14, 2009) [not precedential].

Applicant argued that the word "pussy" has multiple meanings, that nothing in the mark or in the packaging for the product suggests a vulgar meaning, and that the PTO did not establish how the mark would be perceived as scandalous in the marketplace.

The Board, however, found that the PTO's evidence confirmed that "the attention-grabbing meaning is the only reasonable meaning to conclude the relevant public would perceive in this context." Noting the highly competitive nature of the energy drink marketplace, the Board observed:

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.

In sum, the Board concluded that, "in the view of a substantial composite of the public, in particular women, the term PUSSY currently has a vulgar, offensive sexual meaning and ... the offensive meaning is the meaning which the relevant public will perceive as applied to the beverage products identified in the application, including energy drinks."

And so the Board affirmed the refusal to register.

TTABlog comment: I have provided only a brief summary of the decision, which deserves a full reading.

Would the Applicant have had a better chance at registration if his design mark had included a drawing of a kitten?

Text Copyright John L. Welch 2009.


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