Wednesday, July 09, 2014

WYHA? Precedential No. 28: Finding "MOMSBANGTEENS" Scandalous for Adult Website, TTAB Affirms Section 2(a) Refusal

The Board not surprisingly affirmed a Section 2(a) refusal to register the mark MOMSBANGTEENS for "entertainment services, namely, providing a web site featuring photographic, audio, video and prose presentations featuring adult-oriented subject matter," finding the mark to be scandalous. [Would You Have Appealed?] The evidence established that "'bang' is a slang term used as a synonym for sexual intercourse and often regarded as vulgar." The Board rejected applicant's argument that the Board should consider the views of only the subset of the public that consumes applicant's services. In re Manwin/RK Collateral Trust, 111 USPQ2d 1311 (TTAB 2014) [precedential].

The PTO may prove that a mark is scandalous under Section 2(a) by establishing that the mark is “vulgar”in the context of the services recited in the application, and from the standpoint of a substantial composite of the general public. Here, dictionary definitions alone were sufficient to satisfy the PTO's burden to establish a prima facie case.

Examining Attorney Carolyn P. Cataldo submitted more than a dozen definitions of the transitive verb "bang," and in nine of the definitions "bang" is regarded as a slang term for sexual intercourse and is characterized in this context as “vulgar,” “offensive,” “objectionable,” or “obscene.” The Board therefore concluded that this usage of "bang" is considered to be vulgar by a substantial composite of the general public: "The mark MOMSBANGTEENS when used for an adult website would thus be understood as a vulgarity conveying the meaning of mothers having sexual intercourse with teenagers."

The Board was not moved by applicant’s argument that the term “bang” has numerous other relevant meanings, or by its evidence regarding non-sexual uses of the term “bang,” including in the titles of “The Big Bang Theory” TV show and the 1968 movie “Chitty Chitty Bang Bang.” There was simply no evidence that any alternate, non-sexual meanings were pertinent in the context of applicant’s mark and services.

Applicant asserted that the word "bang" is in common usage as a slang term for sexual intercourse, and therefore it is “simply inconceivable that it would be viewed as vulgar, scandalous or immoral by the majority of the public." [So is the "F" word (no, not "fraud") in common usage, and who would say that the "F" word isn't vulgar? - ed.] The Board acknowledged that social attitudes toward a word may change, but the many dictionary definitions of record that characterized the word "bang" as vulgar were "sufficiently contemporaneous with the examination of the application to reflect contemporary viewpoints."

Applicant maintained that the Board should consider the views only of the subset of the public who consumes its services – "an adult audience seeking adult content with an adult vocabulary." The Board disagreed. 

Previous opinions affirming refusals under Section 2(a) of marks used with adult-oriented goods or services instruct that our evaluation must consider the general public’s view as to whether a mark is vulgar, and the two cases applicant cites in support of this argument are not to the contrary. In Mavety Media, the Federal Circuit explicitly considered how a substantial composite of the general public would view the mark BLACK TAIL when used in the context of an adult entertainment magazine; the court did not limit its analysis to the views of consumers of such magazines. See 31 USPQ2d at 1928. The other case, In re Hershey, 6 USPQ2d 1470 (TTAB 1988), concerned Tshirts, not adult-oriented goods, and thus does not support applicant’s position.

Finally, Applicant pointed to its evidence that the general consuming public accepts the concept of older women having sexual intercourse with younger men, but the Board found that evidence irrelevant. "Our decision is based on the vulgarity of the specific term BANG as used in applicant’s mark MOMSBANGTEENS in association with its services."

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog note:  Well, any thoughts? As I banged out this blog post, contemplating getting my bangs cut, the thought hit me with a bang that this case should certainly be a "WYHA?" My advice to potential appellants: check the dictionaries first.

Text Copyright John L. Welch 2014.


At 7:48 AM, Anonymous Anonymous said...

Is the test merely whether the word "bang" is scandalous? Shouldn't the test be whether the mark as a whole is scandalous? Even if the word "bang" is replaced by an "acceptable" word that means the same thing, wouldn't this still be scandalous?

At 9:37 AM, Anonymous Rob said...

My advice to potential appellants: Take it to a district court or don't bother.

At 9:41 AM, Anonymous Anonymous said...

This mark is not scandalous and it is not a WYHA.

This is not scandalous for pornography.

I would, however, find it descriptive.

The USPTO needs to quit with the 1950s attitude.

At 9:50 AM, Anonymous RL said...

don't bang your head over it ... of course it's a "WYHA"?

At 9:55 AM, Anonymous Anonymous said...

There is nothing "immoral" or "scandalous" about pornography and pornographic trademarks. Millions of people consume pornographic goods and services every day, and they are legal.

The adult entertainment industry should not need to use G-rated names in order to achieve trademark registration.

I do not understand the USPTO's motivation in denying the adult entertainment industry trademark registration rights for pornographic names. Who are they trying to protect?

At 10:07 AM, Blogger John L. Welch said...

If "bang" were replace by "make love to," I suppose there wouldn't be a Section 2(a) problem.

At 10:08 AM, Blogger John L. Welch said...

I wouldn't blame the USPTO or the TTAB. It's Congress that wrote the law and the law is enforced by the TTAB. So if you are not happy, call your Congressperson.

At 10:37 AM, Anonymous Anonymous said...

Hard to understand why the seller of a legal product cannot protect trademarks for the product that are of a sort commonplace in the industry.

At 11:29 AM, Anonymous Rob said...

No, Congress did not write puritanism and political correctness into the Lanham Act. Why pretend that there's only one way to interpret "scandalous"?

At 11:35 AM, Anonymous Anonymous said...

Congress passed the law, but it's the USPTO/TTAB's job, as part of the executive branch, to enforce it. They have discretion to determine what constitutes "immoral" and "scandalous", and pornographic names for pornographic goods/services are neither "immoral" nor "scandalous". They are everywhere.

At 12:38 PM, Anonymous Anonymous said...

Naturally, many would consider the product itself offensive but I'm pretty sure case law says that is not a reason to consider a mark for the product or service unregistrable under 2(a). Moreover, I think a word referring to sexual intercourse itself is not what is offensive but the meaning of the whole mark in this case which is that "moms" or older women are having sex with minors. That's just my take of the existing law applied to this case and not any expression of my opinion of the mark or goods/services.
That said, why would anyone even want to register this other than to make a statement or provide the USPTO and its accessing public a good specimen? Is this mark really likely to be enforced or enforceable? I think you need to have a WYHR acronym - "would you have REGISTERED."

At 1:42 PM, Blogger John L. Welch said...

Ultimately, Congress controls the statute and how it is interpreted. If Congress were unhappy with the CAFC's and TTAB's interpretation of 2(a), it could change the law. The only time that will happen is if and when the CAFC or the Board loosens up on the standard. For example, see the reaction to the Board's OLD GLORY condom case from years ago:

At 4:53 PM, Anonymous Anonymous said...

"Teens" within the context of the adult entertainment industry is 18 and 19 year olds. They are obviously not advertising sex with minors.

At 4:55 PM, Anonymous Anonymous said...

Probably too late but I wanted to address John's comment that "Moms Make Love To Teens" would not present a 2(a) problem. Seriously? There is nothing scandalous about the word 'bang', in my opinion, but a mark that describes "moms" having sex with "teens" has to be scandalous or nothing is.

At 5:01 PM, Blogger John L. Welch said...

I just added a final paragraph to the blog post, noting that it was not the idea of older woman having sex with teens that the Board found scandalous, it was the word "bang."

At 5:01 PM, Blogger John L. Welch said...

I just added a final paragraph to the blog post, noting that it was not the idea of older woman having sex with teens that the Board found scandalous, it was the word "bang."

At 6:53 PM, Anonymous Anonymous said...

It's unconstitutional for the PTO to refuse registration of "immoral" matter that is not obscene. This is not a time, place and manner restriction. This is a content-based restriction on speech that cannot pass strict scrutiny.

At 9:41 AM, Blogger ipWitan said...

Consistency would be nice -
BANGBROS - Reg.2923488

Given this opinion, hard to see how anything in the adult entertainment field could be rejected if the mark has a sexual meaning. Just don't get this opinion, particularly when there is a very real question that the mark could be rejected based on the mark being descriptive. Why go the scandalous route?


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