UnIntellectual Property (UnIP): Trademark for ASSHOLE

The Trademark Trial and Appeal Board (TTAB) affirmed, in a precedential opinion, an Examining Attorney’s refusal of a trademark application for ASSHOLE REPELLENT in connection with an “amusement device, namely, a can with a spray top used as a gag gift and sold as a unit.”  The mark was held immoral and scandalous under Section 2(a) of the Trademark Act.  When determining if a mark is scandalous, according to the TTAB, the “analysis must be made (1) from the standpoint of a substantial composite of the general public, and (2) in terms of contemporary attitudes.”  The word “shit” has previously been repeatedly held as scandalous.  Now, it appears, the word “asshole” is subject to the same fate.  Applicant’s evidence included reference to broadcast television using the A-Word and countless website references for other products was not enough.  The TTAB relied upon dictionary definitions and distinguished the word from “ass” in and of itself, which was included in several trademark registrations.

I’ve always said that we are a victim of our time and place.  20 years ago this application would have had no chance.  Today, it is obviously still difficult to overcome a scandalous refusal.  However, with the explosion of social media and hardening of the populations tolerance for “vulgarity,” most likely due to overexposure, would this same decision stand in 5 years?  I think contemporary attitudes are changing, and as a result, I envision the TTAB will too, eventually.  For now, this Applicant will have to rely upon common law trademark rights if he wishes to enforce his mark.  I’m guessing that this Applicant could put some of his spray to good use regardless.


 

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