Tuesday, May 26, 2009

TTAB Affirms Two More Section 2(a) Scandalous Refusal

In the Board's latest Section 2(a) rulings, Applicant RK Netmedia failed in its attempt to register the marks CUMFIESTA and CUMGIRLS for "entertainment services in the nature of photographic images, pictures, video and audio recordings,and information regarding adult oriented subject matter transmitted through a global computer network." The Board concluded that the marks "would be offensive to a substantial composite of the general public and [are] therefore prohibited by Section 2." In re RK Netmedia, Inc., Serial Nos. 77060742 and 77060766 (May 21, 2009) [not precedential].

Marc Randazza (well-regarded First Amendment lawyer and blogmaster of The Legal Satyricon) argued on behalf of Applicant that the word "cum" is not scandalous "in the context of the marketplace as applied to only the goods or services in the application for registration."

The Board, however, took a different view of the precedents: "we hold that the determination of whether a term is scandalous or immoral is determined by the perceptions held by a substantial composite of the general public, not merely applicant’s customers or potential customers."

The language in the cases that the mark must be considered in the context of the marketplace as applied to only the goods or services in the application for registration means that the mark is not defined in a vacuum or in the abstract, but in connection with the goods or services at issue.

Turning to the issue of the perception of the word "cum," dictionary evidence and Internet excerpts convinced the Board that "cum" is a vulgar term.

The Board noted the testimony of Applicant's expert that the word is considered “polite, professional, and proper” but nonetheless "in other walks of life and in other contexts, a substantial composite of contemporary society finds the word 'cum' to be vulgar."

And so the Board affirmed the Section 2(e)(1) refusal.

Text Copyright John L. Welch 2009.


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