TTAB Reverses 2(a) Scandalousness Refusal of "BIG EFFIN GARAGE" for Music Website
Although the evidence of record supported a finding that “effin” and “f’n” are used as substitutes for the offensive term “fucking,” the evidence also indicated that these derivative terms are utilized as a substitute for "fucking" precisely because they are less offensive. Giving the Applicant the benefit of the doubt, as it must, the Board ruled that the Examining Attorney failed to prove that the terms "EFFIN" and "F'N" are scandalous. Consequently, it reversed a Section 2(a) refusal of BIG EFFIN GARAGE and BIG F'N GARAGE for various music website services. In re Big Effin Garage, LLC, Serial Nos. 77595225 and 77595240 (November 23, 2010) [not precedential].
The Board observed that, to prove the words “effin” and “f’n” are scandalous or immoral, the Examining Attorney must demonstrate that the terms are vulgar. The sparse record consisted of a few definitions from the Urban Dictionary and from Dictionary.com.
Interestingly, both applicant and the examining attorney rely on these same dictionary definitions to plead their case. Applicant contends that the dictionary definitions show the words to be non-vulgar, polite substitutions for a forbidden word. The examining attorney, by contrast, asserts that the words are themselves vulgar in their own right.
The Board found that these definitions did not "plainly show" that the terms "effin" and "f'n" are vulgar.
[W]hile the evidence of record supports a finding that “effin” and “f’n” are used as substitutes for the offensive term “fucking,” such evidence also indicates that these derivative terms are utilized as a substitute therefor precisely because they are less offensive, and may be used in conversation, on television, and on Internet message boards. Accordingly, the examining attorney’s arguments regarding the scandalousness of the substituted “effin” or “f’n” ring hollow.
And so the Board ruled that "the examining attorney has not met the Office’s burden of demonstrating that the words 'effin' and 'f’n' and the overall designations BIG EFFIN GARAGE and BIG F’N GARAGE are scandalous or immoral under Section 2(a)."
TTABlog comment: Suppose Big Effin Garage tried to stop someone else from using the name Big Flippin Garage? In order to show the similarity of the marks, wouldn't it have to argue that "effin" and "flippin" have the same connotation, namely the "F-bomb," and wouldn't it thereby be admitting that it's mark is vulgar, possible finding itself effed?
Text Copyright John L. Welch 2010.