WYHA? TTAB Affirms Section 2(a) Refusal of "fuct" for Athletic Apparel
The Board, not surprisingly, affirmed a Section 2(a) refusal of the mark fuct, in standard character form, for athletic apparel, finding the mark to be vulgar and therefore scandalous. Did this application have any chance of surviving the Board's scrutiny? Would you have appealed? In re Brunetti, Serial No. 85310960 (August 1, 2014) [not precedential].
Examining Attorney Zachary R. Bello maintained that the term "fuct" is the phonetic equivalent of "fucked" and is therefore "vulgar, profane and scandalous slang." Applicant contended that the PTO has employed an incorrect standard in applying Section 2(a), that the evidentiary support for the refusal was insufficient, that "fuct" is a coined word having no meaning, and that the Board should narrow the scope of Section 2(a) in light of the evolving view that this provision, as currently enforced by the PTO, is unconstitutional. The Board agreed with the PTO.
Erik Brunetti is an artist and entrepreneur whose graphics are infused with cultural strands from skateboarding, graffiti culture, punk rock music, and remnants of Situationist Ideal ideologies. He has been a trail-blazer since the early nineties in popularizing “streetwear” having revolutionary themes, proudly subversive graphics and in-your-face imagery. His assaults on American culture critique capitalism, government, religion and pop culture.
To prove that a term is scandalous under Section 2(a), the Trademark Examining Attorney need show only that the term is vulgar. The CAFC has repeatedly held that "the threshold for objectionable matter is lower for what can be described as 'scandalous' than for 'obscene.'" The term at issue must be considered in the context of the identified goods, from the standpoint of a substantial composite of the general public, and in view of contemporary attitudes.
Based upon dictionary definitions submitted by the Examining Attorney, the Board had no doubt that "the word 'fuck' continues correctly to be characterized as 'offensive,' 'extremely offensive,' 'highly offensive,' 'intentionally offensive,' an 'obscenity,' 'vulgar slang,' the 'f-bomb,' and at the root of a number of other twisted and angry expressions." The word "fuct" is a slang term equivalent to the word "fucked," and having the same vulgar meaning.
Applicant Brunetti argued that "fuct" is a made-up term meaning FRIENDS U CAN’T TRUST. He pointed out that his FUCT brand makes no reference to "fuck" or to sexual intercourse. Nor do the graphics on the goods suggest that FUCT means “fuck.”
The Board, however, pointed out that applicant's apparel contains "strong, and often explicit, sexual imagery that objectifies women and offers degrading examples of extreme misogyny, ... [leaving] an unmistakable aura of negative sexual connotations." Even when the term "fuct" is used in the sense of "having no chance of success," the dictionary evidence established that the term is still "an extremely offensive word." Applicant's apparel depicts "an unending succession of anti-social imagery of executions, despair, violent and bloody scenes including dismemberment, hellacious or apocalyptic events, and dozens of examples of other imagery lacking in taste."
The Board found that applicant's assertion regarding the derivation of the word "fuct" stretched credulity.
[W]e conclude, to the contrary, that the term “fuct” was chosen precisely because it was knowingly calibrated to be simultaneously alluring, offensive, and corporate (i.e., "mainstream") – retaining just enough ambiguity to provide plausible deniability when necessary around the question of whether it is merely another way to say “fucked,” while knowing that members of its specially target[ed] audience would never be fooled.
The Board brushed aside applicant’s claim that "vulgar" is an incorrect standard under Section 2(a), concluding that, although various precedential rulings define "scandalous" in more comprehensive terms, "the word 'vulgar' captures the essence of the prohibition against registration in the case at bar" and is used here as shorthand for the Examining Attorney's phrase "vulgar, profane and scandalous slang."
Although "fuct" may have served as applicant’s brand name for decades, the Board's responsibility is to determine the question of registrability based upon contemporary standards and in light of the record evidence.
Applicant’s cult following may well represent a reliable niche market for its goods and ideology. While the existence of this market segment may reveal differing opinions within the consumer community, once a substantial composite has been found to consider the term scandalous, the mere existence of differing opinions cannot change the conclusion.
Finally, the Board recognized its "statutory limitations:" the Trademark Trial and Appeal Board "is not the appropriate forum for re-evaluating the impacts of any evolving First Amendment jurisprudence within Article III courts upon determinations under Section 2(a) of the Lanham Act, or for answering the Constitutional arguments of legal commentators or blog critics. [Emphasis supplied].
And so the Board affirmed the refusal to register.
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TTABlog note: Okay, all you blog critics out there. Let's hear it!
Text Copyright John L. Welch 2014.