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A trademark examiner did not err in refusing to register the term “Awshit” as a trademark for apparel, on the finding that it was immoral or scandalous under the federal trademark statute, the Trademark Trial and Appeal Board ruled Aug. 12 (In re Star Belly Stitcher, Inc., T.T.A.B., No. 85247730, 8/12/13).
Affirming a refusal to register the term under Section 2(a) of the Lanham Act, the board rejected the argument that “Awshit,” like “shitake,” would be perceived as a unit, rather than as a variation of the commonly understood vulgar phrase “aw shit.”
Star Belly Stitcher Inc. of Ooltewah, Tenn., filed an application with the Patent and Trademark Office to register the term “Awshit Works” as a trademark for a variety of apparel and clothing accessories.
The examiner assigned to the application, denied registration pursuant to Section 2(a) of the Lanham Act, 15 U.S.C. §1052(a), after finding that the mark comprised “immoral … or scandalous matter.” Star Belly appealed.
Administrative Trademark Judge T. Jeffrey Quinn rejected Star Belly's argument that “Awshit” was a single, fanciful term that Star Belly coined itself, and was no different from common words like “shitake,” which included the character string “shit” but did not invoke the vulgar meaning of the term.
The board also rejected the argument that consumers would not perceive that the trademark included the vulgar term “shit,” meaning feces, because the phrase “aw feces works” was nonsensical.
Under In re Mavety Media Grp. Ltd., 33 F.3d 1367, 31 U.S.P.Q.2d 1923 (Fed. Cir. 1994), a Section 2(a) refusal must be based on a finding “that the mark is 'shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out [for] condemnation.”
This standard, according to the board, could be reduced to asking whether the term was “vulgar.”
Furthermore, under In re Luxuria, s.r.o., 100 U.S.P.Q.2d 1146 (T.T.A.B. 2011) (187 PTD, 9/27/11), the court said that “Whether [Star Belly] intended the mark to be humorous, or even whether some people would actually find it to be humorous, is immaterial.”
The board then turned to dictionary definitions, finding that they “uniformly defined” the term “shit” as vulgar or offensive. Furthermore, the term “awshit” was defined as a composite of “aw shit,” a reference to the vulgar interjection.
Furthermore, the board cited to a 2006 newspaper article referring to the use of the term “shit” by then President George W. Bush as being sufficiently vulgar as to be censored on broadcast television and in newspapers.
Based upon the evidence of record, we have no trouble finding that [Star Belly]'s proposed mark is scandalous as contemplated by the provisions of Section 2(a). We find that the totality of the evidence is sufficient to establish prima facie that the term “aw shit” is an interjection, which is scandalous or vulgar to the conscience of a substantial composite of the general public, notwithstanding the fact that contemporary attitudes toward coarse language are more liberal than they were just a generation ago. The addition of the term “works,” … does not serve to diminish the vulgarity of the term. … [W]hile we find dictionary definitions to be sufficient, we find that there is ample evidence in the record beyond the dictionary definitions which establishes that the proposed mark is scandalous to a substantial composite of the general public.
Even to the extent that the word “shit” has meanings other than “feces,” the board said, for all these alternative meanings, “the vulgarity of the term is not diminished when used with any of them.”
Additionally, the board said that a refusal to register under Section 2(a) need not be based on the most relevant meaning in a particular case, but rather that a “substantial composite of the general public” would perceive the relevant term to “have a vulgar meaning.”
Furthermore, the board said, whether the trademark is used in the form “AwShit” or “Awshit” was irrelevant to the analysis, because the mark applied for was for the term in standard characters, without regard to any particular depiction.
Thus, the board affirmed refusal to register the trademark, while noting that Star Belly was still free to continue using the mark how it pleased.
The board's opinion was joined by Administrative Trademark Judges Lorelei Ritchie and Linda A. Kuczma.
Star Belly was represented by Bruno Tarabichi of Owens Tarabichi, San Jose, Calif. The PTO was represented by trademark examiner Linda Lavache.
Text is available at http://pub.bna.com/ptcj/85247730Aug12.pdf.
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