16
Feb/06

Opposition To DYKES ON BIKES Opens Pandora's Box


TTABlog reports that a man has filed an opposition to the San Francisco Women’s Motorcycle Contingent application to register the mark DYKES ON BIKES for “Education and Entertainment Services in the nature of organizing, conducting, and promoting parade contingents, community festivals, events, street fairs, forums, seminars, parties and rallies to support, organize and motivate women motorcyclists everywhere to do the same, thereby fostering pride in a wide variety of sexual orientations and identities, namely lesbian, bisexual and transgender.” (Opposition No. 91169211, filed on February 15, 2006).
Opposer argues that registration of the mark DYKES ON BIKES would foster hatred of men, because, you know, lesbians hate men. Although not so much hate as in a tracking them down and killing them kind of hate, but more of sort of a not having sex with them hate.
Opposer makes a ‘disparagement’ argument, not a “‘scandalous or immoral’ material” argument. That the application was approved signals (but is not determinative) of how the Board would come out on whether the term DYKES is scandalous or immoral.
Arguing that the registration of a mark that merely identifies a group (in contrast to a “I HATE [name of group]” mark), disparages some other group, is somewhat novel.
For groups for whom hatred of another group is an essential organizing principle, the ‘scandalous or immoral’ clause may be more applicable. For example, an application that contained the term KU KLUX KLAN recently received the following rejection:
“Registration is refused because the proposed mark consists of or comprises immoral or scandalous matter. Trademark Act Section 2(a), 15 U.S.C. Section 1052(a); TMEP Section 1203.01. According to the attached evidence from the Internet, the proposed mark includes the wording KU KLUX KLAN and is thus scandalous because a majority of the public finds references to the KU KLUX KLAN offensive in light of their beliefs and historical behavior.
‘To be considered “scandalous,” a mark must be “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,” in the context of the marketplace as applied to goods or services described in the application. [citations omitted]. Scandalousness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, . . . and in the context of contemporary attitudes. ‘”
If opposer were to succeed in arguing that the name of a group that excludes other groups is per se disparaging, then we may see a flood of litgation against any gender-defined organization (such as the HE MAN WOMAN HATERS CLUB.)
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