In a precedential opinion issued on May 30, 2014, the TTAB affirmed a trademark examiner’s decision to refuse to register “Asshole Repellent” as a mark for a novelty spray-top can gag gift because it is “scandalous” under Section 2(a) of the Trademark Act. Section 2(a) is an absolute bar to registration of marks that involve an “immoral, deceptive, or scandalous matter” from the standpoint of “a substantial composite of the general public” in terms of contemporary attitudes.
The TTAB relied heavily on several dictionary definitions that define “asshole” as a vulgar word. As its opinion stated, dictionary definitions alone can be sufficient to establish that a proposed mark is scandalous under Section 2(a). The applicant, Anthony Michalko, contended that while at one time the public at large may have found the word scandalous, in its modern usage the term “is at its worst ‘impolite.’” Although the TTAB noted that its role is not “to moralize” about the freer use of obscenities in popular culture, it also acknowledged the “enduring vulgarity of some terms, despite changing times or norms.” Thus, despite being used more frequently now than in the past, the TTAB held that the word has not lost its profane meaning, and is still scandalous and barred from registration.
It is reasonable to question whether the TTAB has over time taken a consistent approach to evaluating potentially scandalous or obscene marks under Section 2(a). On the whole, the Trademark Office’s reliance on dictionary definitions arguably has led it to take a conservative approach to registration. For example, it has rejected applications for the marks “Cock Suckers” (referring to rooster-shaped lollipops), “Sex Rod” (referring to clothing), and “AWSHIT Works” (referring to hats and clothing items), largely ignoring the context in which these “scandalous” terms were being used.
Here, however, the applicant Michalko raised an interesting argument that the Trademark Office has been inconsistent in applying its standards for vulgarity because it has previously permitted registration of hundreds of marks that contain the word “ass.” The TTAB, however, dismissed this argument as having “little, if any, probative value” in determining whether to register Michalko’s mark. But does this assessment make sense? A search of the Trademark Electronic Search System reveals 437 live marks which incorporate the word “ass,” including many—such as “Blast That Ass,” “Fake Ass Bitch,” “Ass Juice,” and “Tight Ass“—to which a substantial portion of the general public might take offense. Although “ass” may have one or more inoffensive meanings, it is transparent that in these examples the word is not meant to signify, for instance, a four-legged beast of burden, but in fact connotes a scandalous use, which some may deem more offensive than Michalko’s applied-for mark. In this context, it is difficult to square the TTAB’s opinion with such past registrations.
Of course, the TTAB’s ruling does not proscribe Michalko’s continued use of his mark as an unregistered trademark. The Trademark Act’s bars to registration do not override the freedom of expression granted by the First Amendment. Rather, they simply set the parameters within which the federal government will grant the privileges associated with trademark registration, such as the presumption of validity at trial, nationwide constructive use and notice, and the potential of achieving incontestability. As a result, owners of unregistered scandalous or vulgar marks like Michalko may find it more difficult to enforce their rights.
The case is In re Michalko, Serial No. 85584271 (T.T.A.B. May 30, 2014).