Tuesday, June 03, 2014

Precedential No. 25: Finding ASSHOLE REPELLENT for Gag Gift to Be Vulgar, TTAB Affirms 2(a) Refusal

The Board affirmed a refusal to register the mark ASSHOLE REPELLENT for an "amusement device, namely, a can with a spray top used as a gag gift and sold as a unit," finding the mark to be scandalous and immoral. Applicant Anthony Michalko argued that the word "asshole" is no longer scandalous but at most "impolite." However, dictionary definitions and Internet evidence convinced the Board that the word remains a vulgar slang term. In re Michalko, 110 USPQ2d 1949 (TTAB 2014) [precedential].

To prove that a mark is scandalous, it is sufficient for the PTO to show that a term is vulgar. Dictionary definitions labeled "asshole" as "vulgar," "offensive," "rude and derogatory." According to Vocabulary.com:

Asshole is a vulgar (dirty) slang word. Besides the literal meaning, it’s a common word for a jerk or idiot. If you call someone an asshole, they’re probably doing something not just stupid and annoying, but mean. Like all slang words and obscenities, this is a word you need to be careful about using. Saying asshole in class, in a paper, at a job interview, or even on television could get you in serious trouble. If you’re not alone with your buddies, stick to a safer word like jerk or doofus. [Personally, I think doofus is too feeble; jerk better captures the nastiness angle without being vulgar - ed.]

The Board found that the dictionary evidence overwhelmingly supported Examining Attorney Keri-Marie Cantone's contention that "asshole" is vulgar. Dictionary definitions alone may suffice to establish that a proposed mark is scandalous when all definitions deem the term as vulgar.

Applicant Michalko pointed to database search results demonstrating that widely-read publications use the term "asshole,' and he further noted that many book titles include that term. In other words, "asshole" might once have been scandalous, but not under modern standards of usage.

The Board, however, pointed out that a term does not lose its profane meaning just because it is used more frequently. The dictionary definitions and Internet excerpts showed that the collective understanding deems "asshole" as vulgar.

In sum, the PTO established a prima facie case that "asshole" is a vulgar and offensive term to a substantial composite of the general public, and applicant's evidence did not overcome that prima facie case.

Read comments and post your comment here.

TTABlog note:  Where can I get some ASSHOLE REPELLENT you may ask? Why, at Amazon.com: here. I bought a case.

Text Copyright John L. Welch 2014.


At 10:06 AM, Anonymous Anonymous said...

It's also descriptive (or misdescriptive). They should have known they had no chance of getting this approved when they filed it.

At 12:21 PM, Anonymous Anonymous said...

This just illustrates how much of a difference us trademark attorneys can make in this world.

At 1:16 PM, Anonymous Anonymous said...

Now if someone can just develop an Azzolini Repellent...I bet you'd buy a couple of cases!!

At 9:00 AM, Anonymous Kevin said...

The double-meaning makes it not descriptive in my opinion, but you know what they say about opinions...

At 7:54 PM, Blogger Sla said...

Does the Supreme Court decision in the Slants case alter the outcome?


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