Monday, November 15, 2010

Test Your TTAB Judge-Ability: Is "AUDIOTURD & Design" Scandalous Under Section 2(a)?

Applicant Greenfield Records sought to register the mark AUDIOTURD & Design for musical recordings, but the Examining Attorney issued a Section 2(a) refusal, maintaining that the mark is scandalous and therefore unregistrable. Greenfield argued that "the word 'turd' is used regularly by the public at large and can no longer be considered scandalous." What say you? In re Greenfield Records, LLC, Serial No. 77514177 (November 4, 2010) [not precedential].

Greenfield also claimed that the "English translation of the word "turd" is "a contemptible person," and that AUDIOTURD "will immediately be seen as connoting a contemptible sounding piece of music."

Examining Attorney Jessica A. Powers asserted that the mark is scandalous, "whether one looks at the primary or the secondary meaning of the word, and that the graphic drawing contained within the composite mark reinforces the offensive and vulgar connotation of excrement." She relied on dictionary definitions of "turd," pointing to In re Tinseltown, Inc., 212 USPQ 863 (TTAB 1981) [the wording BULLSHIT is scandalous where multiple dictionary definitions demonstrate that the primary definition is vulgar].

Finally, the Examining Attorney argued that “scandalous” as used in the statute encompasses matter that is “lacking in taste, indelicate, morally crude.” In re Runsdorf, 171 USPQ 443, 444 (TTAB 1971) [BUBBY TRAP as applied to brassieres would be offensive to a segment of the public’s sense of propriety].

Greenfield "repeatedly enumerated within counsel’s argument specific examples of the ways in which the word 'turd' is allegedly used every day in contemporary society, whether in the scatological sense, or when describing something or someone contemptible. According to applicant, while these uses may possibly insult and offend the sense of propriety of some, whatever offense is taken cannot be described as immoral or scandalous."

The Board, in an abrupt six-page decision, ruled that Greenfield had failed to overcome the Examining Attorney's prima facie case, and so it affirmed the refusal.

TTABlog comment: Applicant's appeal brief (here) was hardly a tour de force. [Can you think of a substitute for the word "tour?"] It consisted of two pages of argument reciting several examples of modern usage of the word "turd" [an episode of South Park, President Bush's term of endearment for adviser Karl Rove, and an episode of How I Met Your Mother], and included a statement regarding search engine results for the word "turd."

While this mark may be disgusting, is it scandalous? Had the Applicant put in real evidence rather than just argument, would the result have been different? How about an expert witness or a survey? Is this a generational thing?

Text Copyright John L. Welch 2010.

12 Comments:

At 8:34 AM, Blogger Frank said...

These cases are a waste of time for both Examiners and the TTAB because the Section 2(a) standard is not concrete enough to permit reasonable people to predict what is "scandalous." In every case it's just ad hoc decisions based on how the mark strikes the Examiner and the TTAB. The only solution here is to amend the Lanham Act to remove the word and leave condemnation of bad taste up to the marketplace.

 
At 10:44 AM, Anonymous Eric Adler said...

I wasn't particularly scandalized. However, if Audioturd is going to cite to South Park, they should take care not to infringe on any rights SP may have in "Mr. Hanky the Christmas Poo".

 
At 12:24 PM, Anonymous Mike H said...

Unbelievable. Yet another joke from the TTAB. The USPTO should change it's name to VSPTO (Victorian Patent and TM Office).

This mark is neither disgusting or scandalous. It's an attempt at humor. Many people would find it humorous, and I don't believe a substantial portion of the population (let alone the relevant public, which should be the measure here) would find this scandalous, offensive or anything else.

 
At 2:16 PM, Anonymous Anonymous said...

Am I the only one that went to http://www.audioturd.com and listened to the hit song "Piss Pool"?(replacement word for hit, anyone?)

It goes a little somethin' like this: "Piss pool... Everybody's pissin in the piss pool..."

What a turd.

 
At 4:54 PM, Anonymous Anonymous said...

Awesome shadow effect on the dictionary excerpts. Somebody has advanced word processing skills.

 
At 7:42 PM, Blogger John L. Welch said...

LOL. If you read a few of Judge Bucher's opinions you will soon realize that he has a black belt in PhotoShopping.

 
At 9:35 PM, Anonymous Anonymous said...

"To ensure consistency in examination with respect to immoral or scandalous matter, when an examining attorney believes, for whatever reason, that a mark may be considered to comprise such matter, the examining attorney must consult with his or her supervisor." TMEP 1203.01. Not sure that examiner perception is really the point.

 
At 8:27 AM, Blogger Bob said...

I think a survey of the appropriate target population would be an good way to determine if a mark is scandalous. But that would raise the question of how many people would need to be scandalized.

 
At 11:27 AM, Anonymous MK said...

It's too bad applicant didn't try pushing harder. I think the refusal was beatable. I didn't see any discussion on the fact that other "TURD" marks have been registered. I know this is not binding on examining attorneys, but I think it is still useful. I've been successful with this strategy when facing a 2(a) refusal.

 
At 1:29 AM, Anonymous rashid1891 said...

Am I the only one that went to http://www.audioturd.com and listened to the hit song "Piss Pool"?(replacement word for hit, anyone?)

 
At 1:30 AM, Anonymous rashid1891 said...

This mark is neither disgusting or scandalous. It's an attempt at humor. Many people would find it humorous, and I don't believe a substantial portion of the population (let alone the relevant public, which should be the measure here) would find this scandalous, offensive or anything else.

 
At 6:20 PM, Anonymous Anonymous said...

Nuts!

 

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