Intellectual Property Law

Too Scandalous To Be A Registered Trademark: ?Pussy Natural Energy?

By Ann Bartow

At least according to the TTAB which said:

In this case, it is the term PUSSY which is the focus of the refusal and our analysis. The term PUSSY is the most significant element in the mark. Accordingly, when we discuss the term PUSSY alone, we are mindful that the entire mark is the mark shown above. …

… While the boundaries of what is scandalous under Section 2(a) may be difficult to define, we reject
the notion that those boundaries are coextensive with the boundaries of permissible, that is, uncensored, artistic expression. Neither vaudeville nor South Park provide a useful guide for applying Section 2(a). See In re Red Bull GmbH, 78 USPQ2d at 1379-1380 (Board rejects argument based on use of BULLSHIT in conjunction with Penn & Teller performance). …

And, the TTAB concluded:

The record, taken as a whole, shows that, in the view of a substantial composite of the public, in particular women, the term PUSSY currently has a vulgar, offensive sexual meaning and that the offensive meaning is the meaning which the relevant public will perceive as applied to the beverage products identified in the application, including energy drinks.

The opinion notes that the mark “is attention grabbing, unique and provocative, the meaning related to female genitalia and sexual intercourse, the meaning which is both vulgar and scandalous in the United States.” Footnote six makes an odd comparison with a slang term for male genitalia, as follows:

Another Board case applying the scandalous standard to the DICK HEADS? mark refers to evidence showing sensitivity to the use of the term PUSSY or ?the P word.? In re Wilcher Corp., 40 USPQ2d
at 1931 (?? I have never been taken to task for calling someone a dickhead, but now I won’t even call someone the feline P word when chiding them for lack of bravery.?).

The mark at issue in In re Wilcher looked like this:

It was for a chain of restaurants, which always made me wonder: who wants to look at that while they are eating? In any event, it’s important to note that the “Pussy” mark can still be used in commerce and legally defended against infringers, it just doesn’t get the special protections that federal registration brings.

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Full post as published by Madisonian.net on June 02, 2009 (boomark / email).