Test Your TTAB Judge-Ability: Is "I BANGED BETTY" Scandalous or Immoral Under Section 2(a)?
The PTO refused registration of the mark I BANGED BETTY for "bathing suits for men; men’s and women’s jackets, coats, trousers, vests; men’s underwear," deeming it to be scandalous or immoral under Section 2(a). Applicant argued that "bang" has many non-vulgar meanings, and also (somewhat contradictorily, the Board noted) that "bang" has become a common and accepted synonym for you-know-what. What do you think? In re Betty Bangs, LLC, Serial No. 85386222 (July 9, 2013) [not precedential].
The Board affirmed the refusal. Because this is a family blog, we will not go into the details of the Board's reasoning. Suffice it to say that the Board found the applied-for mark to be "vulgar to a substantial composite of the general population."
Applicant pointed to its existing registration of BETTY BANGS for bathing suits, and to several third-party registrations, but the Board noted that "[n]one of these registrations comprises even the term 'banged,' much less a vulgar declarative sentence in a form similar to applicant's mark." Moreover, as we know, each case must be decided on its own merits and the Board is "not bound by the allowance of prior registrations, even if they have some characteristics similar to the application."
Read comments and post your comments here.
TTABlog comment: Well, how did you do? For a full discussion of the application of the "immoral or scandalous" bar of Section 2(a), see Anne Gilson LaLonde and Jerome Gilson, "Trademarks Laid Bare: Marks That May Be Scandalous Or Immoral," 101 Trademark Reporter 1476 (September-October 2011). [pdf here].
Text Copyright John L. Welch 2013.
posted by John L. Welch @ 8/06/2013
18 comments
18 Comments:
I would have been shocked if this had gone the other way. BETTY BANGS isn't nearly as in-your-face as I BANGED BETTY, which is surely outside the PTO's comfort zone.
Here in Vermont, there are t-shirts with a maple tree and the slogan I'D TAP THAT. Scandalous? Would the examiner know the slang? The double entendre supposedly doesn't matter (In re Fox), but I think that the double meaning helps to take TAP THAT out of the realm of scandalousness.
Nary a hipster on the Board: no ironic facial hair and, sadly, no irony. Perhaps this was heard by their squarer counterpart PTAB by mistake?
This case is a good example of why the USPTO should not be charged with the burden of refusing to register immoral or scandalous matter. In this case, "banged" is the polite way of saying "f****d." The evidence in the case showed its widespread use in pop culture. Is the fact that it offends some people the determining factor here? Everything sexual offends somebody. For example, just as as "banged" is a surrogate for f****d, the word "box" is used to refer to a vagina. Does the PTO have to refuse marks containing that word?
I get pretty angry whenever I read about these scandalous/immoral refusals. It makes the USPTO look like the Vatican.
It is not the role of the USPTO to interject in the "quality" of trademarks. If someone wants to call their business something salacious, that is their prerogative. Does the USPTO really think that it is protecting innocent children or something in denying registration? It has no power to stop people from actually using these "scandalous" marks.
If anything, I would call this part of §2(a) unconstitutional in that it denies certain businesses with certain names equal protection under the (trademark) law. I have seen pornographic names denied registration for pornographic goods, which is a clear institutional bias against that industry.
So, is "I had sexual Intercourse with Betty" scandolous? Setting aside the issue of whether it's descriptive (or misdescriptive). You could say that on prime time uncensored TV. If that is OK, why is substituting "banged" not Ok? I agree that the USPTO should not be in the business of determining the moral value of marks. It's government censorship. Perhaps there should be a separate R rated register for these marks. The supplemental, principal, and HBO register. By the way - I didn't know that Johnny Depp banged an Olsen twin. I've been hanging out on the wrong blogs. Tee Hee.
My comment should have said "moral quality" of trademarks, sorry.
I don't understand why some people get so upset at the USPTO for these 2(a) refusals. After all, it's just applying the statute Congress has written. Sure, maybe you or I will disagree with how a particular case comes out, but the USPTO cannot pick and choose which sections of the Lanham Act it enforces. There are many things wrong with the USPTO, but the fact that it's issuing refusals under Section 2(a) is not one of them.
I view the mark "LUCKY" for jeans with a similar connotation, though clearly not quite as explicit and more suggestive/ambiguous. I think this connotation is reinforced by the pair that I have which places a LUCKY label inside the fly on the jeans (not visible while being worn) and, as I recall, the label says "GET LUCKY."
We may have the opportunity to test the constitionality of Section 2(a)'s scandalous and immoral bar to registrationsoon if the new REDSKINS case plays itself out. I douubt it though. My opinion on this is that the Lanham Act will pass a First Amendment challenge. Adminstrative agencies have the authority to limit the medium through which public speech is disseminated or at least ensure that certain material is not imposed on to those who might not want ingest it. The mere appearance of a mark that society would consider vulgar on the Register, which is availbe to the public without constraint, is sufficient, in my opinion, for the agency to execise control. The question as to the whether a mark should be refused registration because that particular mark is considered vulgar is an issue for the trier of facts in each particular case and the appeal process is available to those who disagree with the TTAB's decisions.
In accordance with the statute, I believe the TTAB made the right decision.
I agree with Freiburger and Falby. The people, speaking through Congress and its enactment of the statute, can choose to offer a government resource in a limited manner, and to support a civil society with a particular cultural tone that excludes vulgarity. Those who decry these TTAB decisions simply didn't carry the day in Congress when the subject was debated; if they want unfettered registration of these marks, go convince 200 members of Congress that what we really need is a more vulgar society, but don't complain about the TTAB.
I like the comparisons with the FCC and TV censorship. People get upset at the FCC for its censorship of popular media, but the USPTO seems to be far more conservative with what it considers "immoral".
"I BANGED BETTY" or "I HAD SEXUAL INTERCOURSE WITH BETTY" would be perfectly fine spoken on primetime TV, but not in the commercial marketplace?
Honestly, "banging" and "sexual intercourse" are a biological functions, they are not "scandalous" or "immoral".
Offensive terms such as REDSKINS are disparagement, which is completely separate from the scandalous/immoral clause of §2(a).
The Board(again) abuses its discretion to force puritan/PC values on applicants.
The statute is constitutionally suspect as vague, though it may not have been when passed. Societal and legal norms that once were obvious are not so any longer. On the other hand, political correctness concerns have the PTO, the TTAB, Congress and the courts in a bind -- because the day they register NIGGA or the like, all life on earth will cease.
I don't have a good solution for this.
I wonder if 50 years ago the trademark "GAY LOVE" would have been deemed scandalous/immoral. Ugh.
I would not think I BANGED BETTY would be immoral or scandalous, but I am just about never offended. Part of the difficulty is that it is increasingly difficult to do anything without offending someone.
I am happy I am not given the responsibility to decide what is and is not immoral or scandalous. Maybe more guidelines would be helpful?
It didn't mean what it does now, so probably not.
I find it funny that some of the commentators here suggest that "Scandalous or Immoral" could only possibly mean strict enforcement of political correctness. Or that almost any description of the very act that brought them (and everybody) to this world is "scandalous." The only thing scandalous about it is the intellectual dishonesty involved in suggesting that such interpretation is an integral part of the Lanham Act. No, guys, our problem isn't with Congress this time, it's with the Board.
WTF? Whoops - I hate to get all scandalous and immoral up in here. The Office needs to get out of the "Basiji" business (Iranian morality police). She's wearing "BANGS" - if this is not a double entendre, what is? Maybe TTAB does need a few hipsters to explain irony and what the hep cats are saying these days.
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