Monday, November 02, 2015

TTAB Test: Is "NUT SACK DOUBLE BROWN ALE" Scandalous for Beer?

The USPTO refused registration of the mark NUT SACK DOUBLE BROWN ALE for "beer," deeming the mark to be immoral or scandalous under Section 2(a). The examining attorney found the term "nut sack" to be offensive to a substantial composite of the general public. Applicant Engine 15 appealed to the Board. How do you think this came out? In re Engine 15 Brewing Co., LLC, Serial No. 86038803 (October 29, 2015) [not precedential].

The Board observed that the USPTO may prove that a mark is scandalous under Section 2(a) by showing that the mark is "vulgar" as applied to the identified goods. The mark must be considered in light of contemporary attitudes, from the standpoint of a substantial composite (not necessarily a majority) of the public.

When the meaning of a term is ambiguous, the fact that a dictionary labels a term as "vulgar" is not always sufficient for Section 2(a) purposes. The CAFC pointed that out in Mavety Media:

While a standard dictionary may indicate how the substantial composite of the general public defines a particular word, the accompanying editorial label of vulgar usage is an arguably less accurate reflection of whether the substantial composite considers the word scandalous. Such labels are subject not only to differences in opinion among the respective publication staffs of particular dictionaries, but also to the potential anachronism of those opinions.

The PTO's evidence demonstrated that "nut sack" is a synonym for the scrotum. The Random House Historical Dictionary of American Slang suggests that the term is "usually considered vulgar."

Applicant argued that the term has an innocuous meaning when the mark is considered as a whole: it "confers [sic] the connotation that the product contains a great deal of nut flavor."

The Board acknowledged that the term "nut" has an innocuous connotation when use in connection with "nut brown ale," making it less likely that consumers would ascribe a vulgar meaning to the subject mark. [See the BIG PECKER BRAND case, In re Hershey]. The word "nut" clearly describes a flavor or style of ale, "rather than being an obvious reference to testicles." The words "double brown ale" reinforce that innocuous connotation.

The Board was not persuaded by applicant's argument that the word "sack" suggests a "sackful of flavor," or that "sack" is a reference to an obscure, historical method of making beer. The term "nut sack" has a readily understood meaning in common parlance.

The Board has noted that for several decades that "contemporary attitudes toward coarse language are more accepting than they had been in earlier eras." Here the evidence of record was mixed as to whether the term "nut sack" is immoral or scandalous. The term "may well raise eyebrows at a formal dinner party," but it must be assessed in light of the statutory language as well as the guidance provided by the courts ("shocking ...; disgraceful; offensive; disreputable; ... giving offense to the conscience or moral feeling; ... calling out [for] condemnation").

We observe that many slang terms come into the lexicon because the formally correct, clinical word for the thing itself is deemed uncomfortably potent. This seems to be particularly true with respect to parts of the human body, in which case speakers adopt the slang terms precisely because they seem less intense, less indelicate, than the formally correct or technical terminology.

"Scandalous" determinations under Section 2(a) "are rarely simple binary decisions, but involve various shades of gray." Some terms may seem "somewhat taboo in polite company, but are not so shocking or offensive as to be found scandalous within the meaning of the statute." Moreover, beer is an adult beverage, often associated with or resulting in the relaxation of inhibitions.

The Board concluded that "beer drinkers can cope with Applicant's mark without suffering meaningful offense." Even when the consumer thinks of body parts or insults, he or she is still likely to see the mark as an attempt at humor.

And so the Board reversed the refusal.

Read comments and post your comment here.

TTABlog comment: Consider the term NUT SACK for champagne. Would the result be different? How about NUT SACK for peanut butter (children will see it!)? Where is the vulgarity line to be drawn? Some say just north of Alexandria, Virginia.

BTW, if you click on the image above you will get a larger view of applicant's label. What does that sack of nuts look like? Looks like a nut sack to me.

Text Copyright John L. Welch 2015.


At 8:25 AM, Anonymous Anne Gilson LaLonde said...

"We conclude that beer drinkers can cope with Applicant’s mark without suffering meaningful offense."

Compare this to In re RK Netmedia, Inc., 2009 TTAB LEXIS 389, refusing CUMFIESTA and CUMGIRLS for porn:

“Applicant concludes that the relevant market, patrons of erotic entertainment, do not consider the word ‘cum’ to be scandalous or immoral. In fact, applicant asserts that they would consider it to be rather ‘tame.’ . . . We do not agree with applicant's conclusion that the determination of whether a mark is scandalous or immoral is limited to the ‘relevant market.’”

Seems to me this off-handed comment in the more recent case is a big departure from prior law.

At 9:06 AM, Anonymous joe dreitler said...

I'd like to see some statistics if there are any. Is it just me or is the number of appeals of scandalous refusals up from 30 years ago? Or is the number of filings for things that are at least vulgar up - and if so, is it symptomatic of a larger societal issue? Don't know, but I'm getting tired of reading the opinions and I feel sympathy for the Board trying to avoid being the morality police but also refuse things that are truly scandalous. Where is Potter Stewart when you need him?

At 1:11 PM, Anonymous Robert said...

John please take this down. I am offended. I was trying to eat lunch.

At 12:08 AM, Anonymous Anonymous said...

Anne, it might be a departure from prior law -- but more likely, you know the unspoken rule -- if it is a porn company, reject it.

At 10:15 AM, Anonymous Anonymous said...

I literally vomited reading about this case, particularly in light of the "artwork." Millennials are now ruining beer. Is nothing sacred?

At 6:15 PM, Blogger AE4America said...

Neil Martin said:

Micro-breweries seem drawn to outrageous names to distinguish themselves from multitude of products out there. In San Diego, CA we have 50 micro-breweries including the maker of "Arrogant Bastard" ale. This mark is registered for ale and for T-shirts and other promotional goods. That name seems to have been chosen for shock value but seems to refer more to the drinker than to the product, so I consider it self-effacing but I cover the label when drinking in front of easily offended friends.
I don't know about you, but I would not be caught dead drinking a “Nut Sack”. I think this product is deservedly doomed, so the registration should go away in time. My suggestion is that the company change their name from “Engine 15” to “Sad Sack”.


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