Test Your TTAB Judge-Ability: Is "no $#!+" Scandalous for an Entertainment Website?

Nicholas Jones sought to register the mark no $#!+, in standard character form, for "entertainment services, namely, providing a web site featuring photographic, video and prose presentations featuring news, humor, and memes," but Examining Attorney David C. Reihner deemed the mark immoral or scandalous, and refused registration  under Section 2(a). Jones appealed, arguing that, although the word SHIT is vulgar, symbols used to replace that word are not themselves vulgar. How would you decide? In re Nicholas Jones, Serial No. 85855449 (December 13, 2013) [not precedential].

The examining attorney submitted dictionary evidence indicating that both the word SHIT and the phrase NO SHIT are considered vulgar, and he argued that that "the commercial impression of the designation [NO $#!+] is the same as the properly spelled designation NO SHIT … and [is] understood to be a vulgar and offensive expression ...."

There was no dispute that SHIT and NO SHIT are vulgar. Applicant Jones contended that the symbols are being used in place of an offensive word are not themselves vulgar, that a single Urban Dictionary excerpt regarding "$#!+" is not sufficient to establish that the mark is immoral or scandalous, that substitutes for vulgar terms are not themselves vulgar, and that the PTO has allowed a "similar arrangement" in a third-party registration.

The evidence showed that Internet "swear filters," which modify text to remove offensive words, look for symbols to block the word SHIT, including $HIT, $hl+, $hi+, and S#i+.

[W]e find that the public would clearly perceive the term NO SHIT, both in meaning and pronunciation, when presented with the proposed mark NO $#!+, in particular, the proposed mark NO $#!+, in particular, in connection with applicant’s services, which are specifically identified as being provided online through a website and the evidence shows use of such symbols to spell vulgar words online. This finding is further supported by the fact that the symbols used appear very similar to the letters, i.e., $ for S, # for H, ! for I and + for T or t. Here, there is no ambiguity in meaning when viewing the mark as a whole. Having found that the proposed mark NO $#!+ has the meaning and would be pronounced as NO SHIT, the refusal under Section 2(a) is appropriate.

The Board found this case to be similar to its nonprecedential decision finding "THE COMPLETE A**HOLE’S GUIDE TO ..." to be scandalous, and it distinguished its nonprecedential decisions reversing refusals to register BIG EFFEN GARAGE and BIG F’N GARAGE because here "the symbols spell out and look like the vulgar word and not an acceptable substitute."

Finally, the fact that the mark "$#!+ MY DAD SAYS" is registered provided no help to Jones. "Although consistent treatment under the Trademark Act is an administrative goal, the existence of third-party registrations that may be equally immoral or scandalous, or more immoral or scandalous, is not justification for the registration of another immoral or scandalous mark."

And so the Board affirmed the refusal.

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TTABlog note: This application was filed on February 20, 2013, and Jones had a decision from the Board less than ten months later. Do you think this case qualifies as a WY#@?

Text Copyright John L. Welch 2014.