Monday, November 16, 2015

TTAB Test: Is "LEFT NUT BREWING COMPANY" Scandalous for Beer?

Here we go again! The USPTO refused registration of the mark LEFT NUT BREWING COMPANY for "beers" [BREWING COMPANY disclaimed], finding the mark to be scandalous and immoral under Section 2(a). The Examining Attorney maintained that "left nut" is a vulgar reference to the left testicle. Applicant contended that the term has a number of non-vulgar meanings, that similar marks have previously been registered, and that such anatomical references are not per se vulgar. How do you think this came out? In re Left Nut Brewing Company, Inc., Serial No. 85935569 (November 13, 2015) [not precedential].

Because of the disclaimer of the term BREWING COMPANY, the Board focused on applicant's LEFT NUT. The Examining Attorney submitted definitions of "nut," including several that labeled the word "vulgar' when used to refer to a testicle. Because the term "left nut" does not appear in standard dictionaries, she submitted several definitions from the Urban Dictionary, including this familiar one: "a part of one’s anatomy that one would sacrifice to experience something exceptional." And the examining attorney ferreted out a number of Internet articles that use the term to refer to the left testicle.

The Board observed that evidence from both the Examining Attorney and Applicant shows that "'left nut' has several different meanings and is not always vulgar, even when sometimes referring to a testicle."

The Urban Dictionary definition of “left nut” submitted by the Examining Attorney shows that the term has a number of meanings. “Left nut” can, of course, refer to the left testicle. It also can be a figure of speech used to describe the lengths to which someone might go to attain something of great value. It can refer to a passenger’s position in an automobile, i.e., behind the driver. And it can refer to a member of the “political left” or a “left wing screwball.” Only the first of these meanings is arguably vulgar and, therefore, immoral or scandalous under Section 2(a).

Similarly, the Internet excerpts submitted by the Examining Attorney present a mixed picture of the vulgarity of the term “left nut.” In one excerpt, former U.S. Senator Alan Simpson tells a reporter to “Grab Your Left Nut For Luck.” In four of the excerpts, the term is used as a figure of speech for something of great value. In two excerpts, the term “left nut” is used in a strictly anatomical or medical sense to refer to the left testicle. In only three of the excerpts, the article, the lyrics by Eminem, and the card, is the term used in what could be considered a primarily vulgar form.

The Board also noted four existing registrations for marks the include the word "nuts" to show that anatomical references are not per se vulgar under Section 2(a).

In view of the the mixed record of vulgar and non-vulgar meanings [mixed nuts? - ed.], the Board ruled that the evidence failed to establish that LEFT NUT is vulgar. LEFT NUT has even been use "by senators and web-authors with no evidence of offense or disapproval" and the PTO has registered similarly-suggestive "nut" marks.

The Board therefore found that LEFT NUT in applicant's mark LEFT NUT BREWING COMPANY is not vulgar and thus not immoral or scandalous under Section 2(a) And so the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlog comment: In view of this decision and the NUT SACK DOUBLE BROWN ALE ruling of two weeks ago, are we about to see a flood of applications for anatomically-related marks for beverages? Let's hope not.

Text Copyright John L. Welch 2015.


At 10:11 AM, Anonymous Anonymous said...

You hope we won't see a bunch of these for craft beers? Don't bet your left n#t

At 10:18 AM, Anonymous Anonymous said...

The primary significance of the wording "left nut" to military veterans is the warning we got from the Drill Sergeant in basic training that during our medical exam "you're gonna get a square needle in the left nut!"

At 11:27 AM, Blogger Unknown said...

I wonder what would happen if you tried to register LEFT NUT SACK DOUBLE BROWN ALE.

At 11:40 AM, Anonymous Anonymous said...

Your comment is on the money. Yea, your mark might get through registration at the USPTO but your brand is what really matters if you want people to purchase your product and I think anatomically-related marks for beverage might not be the best way to brand your product. Not everyone is into tongue and cheek references and whether the USPTO determines its vulgar or not I'd venture to say LEFT NUT and NUT SACK (with its accoutrement label illustration of a scrotum) could potentially turn many consumers off to buying your beer over another.

At 12:19 PM, Anonymous Anonymous said...

"In view of this decision and the NUT SACK DOUBLE BROWN ALE ruling of two weeks ago, are we about to see a flood of applications for anatomically-related marks for beverages? Let's hope not."

That would be nutty. (No offense intended).

At 2:49 PM, Anonymous Anonymous said...

The examiner in the present case was apparently a female ("Ellen Awrich"). I don't recall the NUT SACK DOUBLE BROWN ALE case but if that examiner was female, perhaps that suggests that female examiners are more sensitive to the alleged offensiveness of these marks.

At 2:53 PM, Anonymous Anonymous said...

I just checked and saw that the examiner of the NUT SACK DOUBLE BROWN ALE application was a female ("Leigh Caroline Case").

At 3:33 AM, Anonymous Anonymous said...

"... are we about to see a flood of applications for anatomically-related marks for beverages?" If so, I'm sure we will read about them in this space.

At 8:07 AM, Anonymous Anonymous said...

Perhaps the correct question is not whether female examiners are more offended (and/or nauseated) by anatomically incorrect marks - but rather why are male beer manufacturers so obsessed with their phalluses and/or their attendant and component parts, that they feel the need to birth beer brand names that read like Garbage Pail Kids trading cards?

At 1:20 PM, Anonymous Anonymous said...

Since when was Urban Dictionary a legal source for information?

At 3:51 PM, Anonymous Anonymous said...

I concur with the comment above - does this really sell in the marketplace? The names NUT SACK and LEFT NUT are about the level that my 12 year old nephew would find appealing. Can't these guys come up with something more clever, like the folks at Lagunitas, Fat Tire, or Ballast Point?

At 1:50 PM, Anonymous Anonymous said...

Enough everywhere with being have no constitutional right to not be offended (female or otherwise) with it!


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