The Trademark Trial and Appeal Board (“TTAB”) found the mark “ASSHOLE REPELLENT” to be scandalous and vulgar despite its use on a gag gift. After considering contemporary attitudes towards swearwords, the Board affirmed the examining attorney’s refusal to register the mark. 

The applicant filed an application to register ASSHOLE REPELLENT for a spray-top can. The can is sold as a gag gift. The Trademark Act prohibits the registration of trademarks consisting of “scandalous matter.”  The applicant submitted evidence to prove that the mark is not scandalous and is at worst impolite. However, the Board found that the evidence actually confirmed the examining attorney’s finding that the mark is scandalous and vulgar. 

The Board took into account the standpoint of the general public and contemporary attitudes towards swearwords. However, the Board noted that some terms are still vulgar even though society and the media appear to have a relaxed attitude towards use of swearwords.

The Board found that the use of “asshole” on the applicant’s product, repellant spray, invokes the vulgar meaning of the word. While the evidence demonstrated the increased use of the swearword in the main-stream media, the Board stated that “a term does not lose its profane meaning simply because it may be used more frequently.”  An academic study and a posting confirmed that the general public considers the swearword to be offensive. 

In re Michalko, Serial No. 85584271 (TTAB May 30, 2014) [precedential]