Monday, December 02, 2013

Test Your TTAB Judge-Ability: Is This "Statue of Liberty" Design Mark Scandalous Under Section 2(a)?

Advanced Armament sought registration of the mark shown below for "silencers for firearms," but the examining attorney refused registration under Section 2(a), maintaining that the mark is scandalous and disparaging of the Statue of Liberty. The Board viewed the question as whether a substantial composite of the general public "would perceive applicant's mark to be a scandalous adaptation" of the beloved Statue. Applicant argued that the evidence showed that public sentiment is deeply divided on gun rights and gun control in general, but it revealed little about "silencers." How do you think this came out? In re Advanced Armament Corp., LLC, Serial No. 77770899 (November 29, 2013) [not precedential].

The examining attorney relied on various Internet pages and media articles regarding use of guns and/or silencers, and other material regarding the Statute of Liberty. Several articles and blog posts were submitted to show that the depiction of guns with the Statute of Liberty was offensive. Other materials, she argued, suggested that there has been a "shift in public opinion after recent high-profile gun violence" and that "new stricter laws against guns reflect negative public perception of firearms."

Applicant contended that its mark depicts the statue's "serene face" and is not vulgar. It asserted that the mark must be considered "in the context of the marketplace and as applied to only the goods or services in the application for registration." Contrary to the examining attorney's position, it urged, none of the evidence made a connection between silencers and criminal activities. As to the images submitted by the examining attorney, it noted that some comments were positive (e.g., "You only have Liberty as for (sic) long as you can defend it. Awesome image.") Other images were employed in a different context (e.g., immigration policy or gun control) and were intended to be provocative. Finally Applicant pointed to several declarations from retailers who stated that the logo was greeted enthusiastically, and that they were unaware of any negative reaction from customers.

The Board observed that, based on the evidence of record, "it is not uncommon for persons to adopt and/or register marks incorporating the Statute of Liberty holding an object, e.g., a cup of coffee or a football, in place of the torch." Such marks are clearly intended to generate "a sense of patriotism, Americana, or perhaps of New York City." The applied-for mark does not depict the statute in a threatening pose; in fact, the depiction may be viewed as "consistent with" the Constitutional right to bear arms.

The Board was not "free of doubt" that the mark will be perceived as scandalous by a substantial composite of Americans. The record was mixed as to whether the mark will be viewed as offensive or as a gesture of patriotism. Moreover, the Board was not convinced that the evidence regarding objection to firearms equated to objection to silencers.

The mixed record in this case leaves us with doubt about whether applicant’s mark gives "offense to the conscience or moral feelings" or is "shocking to the sense of decency or propriety" in the minds of a substantial composite of Americans. This leads us to the conclusion that it would be prudent, under the circumstances, to permit the mark to proceed to publication and, if a person, entity, or group "find[s] the mark to be scandalous . . . , an opposition proceeding can be brought and a more complete record can be established." See Mavety Media, 33 F.3d 1367, 31 USPQ2d at 1928.

And so the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlog note: In a footnote, the Board recognized that, due to the limited resources of the PTO, it is not always possible for an examining attorney to find evidence involving public reaction to a mark.I suspect the evidence would have been mixed anyway. On the other hand, a "substantial composite" of Americans does not, as the Board observed, mean a majority.

Text Copyright John L. Welch 2013.


At 10:56 AM, Anonymous Anonymous said...

I personally find it offensive, but I have always had problems with the scandalous, immoral, offensive classification based on 1st amendment grounds.

At 12:09 PM, Anonymous Anonymous said...

I think the decision calls for somewhat of a policy decision which the Board probably does not have the authority to make.

I thought for a minute the refusal had a chance under the 2(a) false association provision but I guess there is no single entity identified by the Statute of Liberty with which the mark (and apparently many others) falsely associates.

At 8:32 PM, Anonymous Anne Gilson LaLonde said...

I think this decision isn't too surprising because the mark doesn't explicitly advocate violence. It might even have come out differently if Lady Liberty were pointing the gun directly at the viewer.

This decision can be distinguished from the case in which the Board refused registration to W.B. WIFE BEATER for t-shirts, which included evidence from the examiner that individuals and organizations found the term offensive (though the dissent suggested the examining attorney hadn't met his burden of showing a substantial composite of the general public would find it scandalous). Also, it differs from the refusals to register AL QAEDA and BIN LADEN marks, which seem to advocate terrorism.


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