Test Your TTAB Judge-Ability: Is "AUDIOTURD & Design" Scandalous Under Section 2(a)?

Applicant Greenfield Records sought to register the mark AUDIOTURD & Design for musical recordings, but the Examining Attorney issued a Section 2(a) refusal, maintaining that the mark is scandalous and therefore unregistrable. Greenfield argued that "the word 'turd' is used regularly by the public at large and can no longer be considered scandalous." What say you? In re Greenfield Records, LLC, Serial No. 77514177 (November 4, 2010) [not precedential].

Greenfield also claimed that the "English translation of the word "turd" is "a contemptible person," and that AUDIOTURD "will immediately be seen as connoting a contemptible sounding piece of music."

Examining Attorney Jessica A. Powers asserted that the mark is scandalous, "whether one looks at the primary or the secondary meaning of the word, and that the graphic drawing contained within the composite mark reinforces the offensive and vulgar connotation of excrement." She relied on dictionary definitions of "turd," pointing to In re Tinseltown, Inc., 212 USPQ 863 (TTAB 1981) [the wording BULLSHIT is scandalous where multiple dictionary definitions demonstrate that the primary definition is vulgar].

Finally, the Examining Attorney argued that “scandalous” as used in the statute encompasses matter that is “lacking in taste, indelicate, morally crude.” In re Runsdorf, 171 USPQ 443, 444 (TTAB 1971) [BUBBY TRAP as applied to brassieres would be offensive to a segment of the public’s sense of propriety].

Greenfield "repeatedly enumerated within counsel’s argument specific examples of the ways in which the word 'turd' is allegedly used every day in contemporary society, whether in the scatological sense, or when describing something or someone contemptible. According to applicant, while these uses may possibly insult and offend the sense of propriety of some, whatever offense is taken cannot be described as immoral or scandalous."

The Board, in an abrupt six-page decision, ruled that Greenfield had failed to overcome the Examining Attorney's prima facie case, and so it affirmed the refusal.

TTABlog comment: Applicant's appeal brief (here) was hardly a tour de force. [Can you think of a substitute for the word "tour?"] It consisted of two pages of argument reciting several examples of modern usage of the word "turd" [an episode of South Park, President Bush's term of endearment for adviser Karl Rove, and an episode of How I Met Your Mother], and included a statement regarding search engine results for the word "turd."

While this mark may be disgusting, is it scandalous? Had the Applicant put in real evidence rather than just argument, would the result have been different? How about an expert witness or a survey? Is this a generational thing?

Text Copyright John L. Welch 2010.