Tuesday, July 04, 2006

Flag Football on the Fourth: Another Look at the TTAB's Old Glory Condom Decision

On June 27, 2006, the United States Senate fell one vote short of approving a constitutional amendment that would ban desecration of the U. S. Flag. (S.J. Res. 12). The current political climate led me to wonder, just as it did one year ago, what would happen if the TTAB (and perhaps the CAFC) were today presented with the Old Glory Condom case? In re Old Glory Condom Corp., 26 USPQ2d 1216 (TTAB 1993).

As you may recall, in Old Glory, the Board reversed a Section 2(a) refusal to register the mark OLD GLORY CONDOM CORP & design, shown above, for "prophylactics (condoms)." The Board noted that "the design feature of applicant's mark consists of a pictorial representation of a condom decorated with stars and stripes in a manner to suggest the American flag." The drawing was lined for the colors red and blue.

The Board further noted that the flag design is not applied to the Applicant's condoms themselves. The back of Applicant's packaging stated its "Old Glory Pledge":

We believe it is patriotic to protect and save lives. We offer only the highest quality condoms. Join us in promoting safer sex. Help eliminate AIDS. A portion of Old Glory profits will be donated to AIDS related services.

The Examining Attorney contended that the mark comprises "immoral or scandalous" matter under Section 2(a), and in particular that the use of the American flag as part of applicant's mark for condoms was scandalous because it was likely to offend "a substantial composite of the general public:" that "a majority of the American public would be offended by the use of American flag imagery to promote products associated with sexual activity" and that "the flag is a sacrosanct symbol whose association with condoms would necessarily give offense."

Applicant, however, emphasized "that its mark is expressly designed not to offend but to redefine patriotism to include the fight against sexually-transmitted diseases, including AIDS."

The Board was not impressed by the PTO's flimsy evidentiary support: "The examining attorney's objection to applicant's mark seems to be directed to the mark's linking of flag imagery and a pictorial representation of a condom, each of which, in itself, she apparently finds unobjectionable. Precisely why this combination of images is scandalous the examining attorney fails to articulate. "

"Her position is supported mainly by an expression of opinion that a substantial composite of the public would be offended by applicant's mark, which opinion is, in turn, supported by her opinion that the American flag is a 'sacrosanct' symbol. To bolster the latter opinion, she alluded to an unsuccessful proposed amendment to the U. S. Constitution to prohibit flag burning and to a comment by Chief Justice Rehnquist in his dissent in Texas v. Johnson, 491 U.S. 397, 428 (1989) that many Americans have an 'almost mystical reverence' for the American flag."

The Board found Applicant's proofs to be more persuasive. Observing that "whether applicant's mark would be likely to offend must be judged not in isolation but in the entire context of the mark's use," the Board ruled against the PTO:

"Here, applicant markets its condoms in packaging which emphasizes applicant's commitment to the sale of high quality condoms as a means of promoting safer sex and eliminating AIDS and its belief that the use of condoms is a patriotic act. Although we know that not everyone would share applicant's view that the use of condoms is a patriotic act, the seriousness of purpose surrounding the use of applicant's mark -- a seriousness of purpose made manifest to purchasers on the packaging for applicant's goods -- is a factor to be taken into account in assessing whether the mark is offensive or shocking. When we consider that factor, along with the others we have discussed, we find that applicant's mark can in no way be considered 'scandalous' under Section 2(a)."

The Board's reversal of the PTO's Section 2(a) refusal met with swift criticism from then Congressman James Traficant (D-Ohio), who railed against the TTAB decision:

OLD GLORY CONDOMS ALLOWED TO UNFURL (House of Representatives. March 09, 1993) [Page: H1061]

(Mr. TRAFICANT asked and was given permission to address the House for 1 minute.)

Mr. TRAFICANT. Madam Speaker, the Old Glory Condom Corp. appealed a prior decision that banned their red, white, and blue condoms. Now, Old Glory contended that the use of their red, white, and blue condoms was in fact a patriotic act. And, guess what? The U.S. Trademark Office of Appeals agreed with that.

Here is what the panel said. The name Old Glory and its logo of a flag shaped like an unfurled condom is neither scandalous nor offensive nor unconstitutional.

No wonder the American people are losing confidence in our Government. What is next, the Congressional Medal for Benedict Arnold? When our Government starts treating the flag like an Old Glory condom, something should be done.

TTABlog comment: What would happen today if the PTO Examining Attorney were able to provid better proof of the public's perception of the OLD GLORY CONDOM mark? The issue, of course, is whether a substantial composite of the general public [not necessarily a majority] are offended by use of the term in connection with the identified goods. See, e.g., In re Red Bull GmbH, 78 USPQ2d 1375 (TTAB 2006) [BULLSHIT scandalous for alcoholic and non-alcoholic beverages, and as a service mark for hotel, restaurant, bar, and various other services]. TTABlogged here.

Text Copyright John L. Welch 2005-6. All Rights Reserved.


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