TTAB Test: Is "NUT SACK DOUBLE BROWN ALE" Scandalous for Beer?
The USPTO refused registration of the mark NUT SACK DOUBLE BROWN ALE for "beer," deeming the mark to be immoral or scandalous under Section 2(a). The examining attorney found the term "nut sack" to be offensive to a substantial composite of the general public. Applicant Engine 15 appealed to the Board. How do you think this came out? In re Engine 15 Brewing Co., LLC, Serial No. 86038803 (October 29, 2015) [not precedential].
The Board observed that the USPTO may prove that a mark is scandalous under Section 2(a) by showing that the mark is "vulgar" as applied to the identified goods. The mark must be considered in light of contemporary attitudes, from the standpoint of a substantial composite (not necessarily a majority) of the public.
When the meaning of a term is ambiguous, the fact that a dictionary labels a term as "vulgar" is not always sufficient for Section 2(a) purposes. The CAFC pointed that out in Mavety Media:
While a standard dictionary may indicate how the substantial composite of the general public defines a particular word, the accompanying editorial label of vulgar usage is an arguably less accurate reflection of whether the substantial composite considers the word scandalous. Such labels are subject not only to differences in opinion among the respective publication staffs of particular dictionaries, but also to the potential anachronism of those opinions.
The PTO's evidence demonstrated that "nut sack" is a synonym for the scrotum. The Random House Historical Dictionary of American Slang suggests that the term is "usually considered vulgar."
Applicant argued that the term has an innocuous meaning when the mark is considered as a whole: it "confers [sic] the connotation that the product contains a great deal of nut flavor."
The Board acknowledged that the term "nut" has an innocuous connotation when use in connection with "nut brown ale," making it less likely that consumers would ascribe a vulgar meaning to the subject mark. [See the BIG PECKER BRAND case, In re Hershey]. The word "nut" clearly describes a flavor or style of ale, "rather than being an obvious reference to testicles." The words "double brown ale" reinforce that innocuous connotation.
The Board was not persuaded by applicant's argument that the word "sack" suggests a "sackful of flavor," or that "sack" is a reference to an obscure, historical method of making beer. The term "nut sack" has a readily understood meaning in common parlance.
The Board has noted that for several decades that "contemporary attitudes toward coarse language are more accepting than they had been in earlier eras." Here the evidence of record was mixed as to whether the term "nut sack" is immoral or scandalous. The term "may well raise eyebrows at a formal dinner party," but it must be assessed in light of the statutory language as well as the guidance provided by the courts ("shocking ...; disgraceful; offensive; disreputable; ... giving offense to the conscience or moral feeling; ... calling out [for] condemnation").
We observe that many slang terms come into the lexicon because the formally correct, clinical word for the thing itself is deemed uncomfortably potent. This seems to be particularly true with respect to parts of the human body, in which case speakers adopt the slang terms precisely because they seem less intense, less indelicate, than the formally correct or technical terminology.
"Scandalous" determinations under Section 2(a) "are rarely simple binary decisions, but involve various shades of gray." Some terms may seem "somewhat taboo in polite company, but are not so shocking or offensive as to be found scandalous within the meaning of the statute." Moreover, beer is an adult beverage, often associated with or resulting in the relaxation of inhibitions.
The Board concluded that "beer drinkers can cope with Applicant's mark without suffering meaningful offense." Even when the consumer thinks of body parts or insults, he or she is still likely to see the mark as an attempt at humor.
And so the Board reversed the refusal.
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TTABlog comment: Consider the term NUT SACK for champagne. Would the result be different? How about NUT SACK for peanut butter (children will see it!)? Where is the vulgarity line to be drawn? Some say just north of Alexandria, Virginia.
BTW, if you click on the image above you will get a larger view of applicant's label. What does that sack of nuts look like? Looks like a nut sack to me.
Text Copyright John L. Welch 2015.