WYHA? Precedential No. 8: TTAB Affirms Section 2(a) Disparagement Refusal of PORNO JESUS
Not surprisingly, the Board affirmed a Section 2(a) disparagement refusal of PORNO JESUS for DVDs and video recordings "featuring music videos, adult themed content, glamour photography, and adult entertainment." The Board found it clear that the applied-for mark would have the "likely meaning" of Jesus Christ being associated with pornography, a meaning that may be disparaging to a substantial composite of Christian-Americans. In re Matthew Beck, 114 USPQ2d 1048 (TTAB 2015) [precedential].
Section 2(a) of the Lanham Act prohibits registration of a mark consisting of matter which may disparage, inter alia, “persons,” “institutions,” or “beliefs.” The Board applies the following two-part test to determine whether a mark is disparaging:
1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and
2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.
Examining Attorney John M. Gartner relied on numerous dictionary definitions and encyclopedia entries regarding the terms comprising the mark, as well as on Internet materials providing membership statistics for various Christian denominations in this country, and materials discussing the views of certain denominations toward pornography. [They don't like it - ed.].
Applicant Beck submitted articles from various Internet sources discussing shifting views among Christians on issues involving pornography, including material from a website disseminating and supporting Christian pornography, as well as several third-party registrations for marks containing the word "Jesus:" HOOKERS FOR JESUS for charitable services, REDNECK JESUS for entertainment and informational services, JESUS FREAK for clothing, THE DAY JESUS SPOKE HIP HOP for entertainment services featuring Christian music, and WHO WOULD JESUS SUE? for printed publications in the field of faith-based advocacy.
There was no dispute that "Jesus" in the applied-for mark refers to Jesus of Nazareth, upon whom the Christian faith is based, and there was agreement that "porno" means - you know what. Thus the Board found that the likely meaning of PORNO JESUS is "Jesus of Nazareth partaking of acts related to pornographic or sexually explicit materials."
Although the Board opined that PORNO JESUS would be "potentially disparaging regardless of applicant's goods or services, actual use or intent," it proceeded to consider the manner of use of the mark. Because applicant Beck's goods feature "adult-themed content," which applicant acknowledged includes pornographic films, it was clear that PORNO JESUS would have the "likely meaning" of "Jesus Christ associated with pornographic acts and sexually explicit materials."
Next the Board considered whether the meaning of the mark would disparage a substantial component of the referenced group, which the Board found to be Christian-Americans. The examining attorney's evidence from the websites of several Christian denominations indicated that these denominations oppose pornography, believing it to be harmful and not in conformance with the tenets of Christianity.
With regard to the third-party registrations cited by Applicant Beck, the Board once again observed that it is not bound by the determinations of examining attorneys in other cases, but must apply the statute to the fact record before it. In any case, none of the third-party registrations associated Jesus Christ with pornography and none involved adult-themed materials.
The existence of a sub-genre of Christian-themed pornographic movies (featuring married couples portraying married couples engaged in sex acts intended to be instructional and reflecting the beliefs of some Christians) suggests that the larger body of pornography does not reflect Christian beliefs. Moreover, Mr. Beck's identification of goods was not restricted to a type of pornography that may theoretically be acceptable to certain Christians. In any case, the examining attorney is not required to show that all members of the referenced group would find the mark disparaging.
Finally, the Board noted that in meeting its burden of proof, the PTO may, in the absence of direct evidence, extrapolate from the evidence of record to show that a substantial composite of Christian-Americans find the mark PORNO JESUS for the identified goods to be disparaging.
And so the Board affirmed the refusal to register.
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TTABlog note: Well, would you have appealed?
Text Copyright John L. Welch 2015.