WYHA? Precedential No. 28: Finding "MOMSBANGTEENS" Scandalous for Adult Website, TTAB Affirms Section 2(a) Refusal
The Board not surprisingly affirmed a Section 2(a) refusal to register the mark MOMSBANGTEENS for "entertainment services, namely, providing a web site featuring photographic, audio, video and prose presentations featuring adult-oriented subject matter," finding the mark to be scandalous. [Would You Have Appealed?] The evidence established that "'bang' is a slang term used as a synonym for sexual intercourse and often regarded as vulgar." The Board rejected applicant's argument that the Board should consider the views of only the subset of the public that consumes applicant's services. In re Manwin/RK Collateral Trust, 111 USPQ2d 1311 (TTAB 2014) [precedential].
The PTO may prove that a mark is scandalous under Section 2(a) by establishing that the mark is “vulgar”in the context of the services recited in the application, and from the standpoint of a substantial composite of the general public. Here, dictionary definitions alone were were sufficient to satisfy the PTO's burden to establish a prima facie case.
Examining Attorney Carolyn P. Cataldo submitted more than a dozen definitions of the transitive verb "bang," and in nine of the definitions "bang" is regarded as a slang term for sexual intercourse and is characterized in this context as “vulgar,” “offensive,” “objectionable,” or “obscene.” The Board therefore concluded that this usage of "bang" is considered to be vulgar by a substantial composite of the general public: "The mark MOMSBANGTEENS when used for an adult website would thus be understood as a vulgarity conveying the meaning of mothers having sexual intercourse with teenagers."
The Board was not moved by applicant’s argument that the term “bang” has numerous other relevant meanings, or by its evidence regarding non-sexual uses of the term “bang,” including in the titles of “The Big Bang Theory” TV show and the 1968 movie “Chitty Chitty Bang Bang.” There was simply no evidence that any alternate, non-sexual meanings were pertinent in the context of applicant’s mark and services.
Applicant asserted that the word "bang" is in common usage as a slang term for sexual intercourse, and therefore it is “simply inconceivable that it would be viewed as vulgar, scandalous or immoral by the majority of the public." [So is the "F" word (no, not "fraud") in common usage, and who would say that the "F" word isn't vulgar? - ed.] The Board acknowledged that social attitudes toward a word may change, but the many dictionary definitions of record that characterized the word "bang" as vulgar were "sufficiently contemporaneous with the examination of the application to reflect contemporary viewpoints."
Applicant maintained that the Board should consider the views only of the subset of the public who consumes its services – "an adult audience seeking adult content with an adult vocabulary." The Board disagreed.
Previous opinions affirming refusals under Section 2(a) of marks used with adult-oriented goods or services instruct that our evaluation must consider the general public’s view as to whether a mark is vulgar, and the two cases applicant cites in support of this argument are not to the contrary. In Mavety Media, the Federal Circuit explicitly considered how a substantial composite of the general public would view the mark BLACK TAIL when used in the context of an adult entertainment magazine; the court did not limit its analysis to the views of consumers of such magazines. See 31 USPQ2d at 1928. The other case, In re Hershey, 6 USPQ2d 1470 (TTAB 1988), concerned Tshirts, not adult-oriented goods, and thus does not support applicant’s position.
Finally, Applicant pointed to its evidence that the general consuming public accepts the concept of older women having sexual intercourse with younger men, but the Board found that evidence irrelevant. "Our decision is based on the vulgarity of the specific term BANG as used in applicant’s mark MOMSBANGTEENS in association with its services."
And so the Board affirmed the refusal.
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TTABlog note: Well, any thoughts? As I banged out this blog post, contemplating getting my bangs cut, the thought hit me with a bang that this case should certainly be a "WYHA?" My advice to potential appellants: check the dictionaries first.
Text Copyright John L. Welch 2014.