December 19, 2006
December 05, 2006
The War On Christmas Continues
WordLab: Santa's Butt Hauled Into Court(re the travails of SANTA'S BUTT Beer).
November 14, 2006
FIGHTING SIOUX Sue
The NCAA attempted to prevent the University of North Dakota from continuing its use of FIGHTING SIOUX as the names of its athletic teams. UND has sued the NCAA, alleging that the NCAA breached its obligations to UND in the manner in which the NCAA has applied its 'Indian nickname' rule. UND has succeeded at the interim relief stage
This website alleges that while there was support for changing the name, a wealthy donor (after whom a UND arena was subsequently named) demanded that the name be kept.
October 03, 2006
COCAINE Redux
First shoe drops: "Drink Called 'Cocaine' Infuriates New York Mayor." Background here.
Answer to anticipated email: I supose, because OPIUM perfume isn't targeted at kids.
Answer to a different anticipated email: All I could find was one registration for GOD MADE MARIJUANA for shirts and hats, but I didn't every single drug name.
Addendum: HT to SB for reminding me of In re Hepperle, 175 USPQ 512 (TTAB 1972), in which ACAPULCO GOLD was held to be registrable for suntan lotion.
September 14, 2006
Not Family Friendly
I was approached by a RSS aggregator yesterday who wants to syndicate my news feed but I would have to sign a license indicating that my content was family friendly. I wrote back saying that everything so often I link to items like this and this. Look, I didn't draft the 'scandalous and immoral' clause in 2(a) of the Lanham Act, I only blog about it.
September 13, 2006
TTAB Says "Hey, No Mothers"
TTAB affirms refusal of DE PUTA MADRE on scandalous/immoral grounds. Via TTABlog.
August 10, 2006
New Petition To Cancel REDSKINS Trademark
MSNBC.com: 'Petition seeks to cancel "Redskins' trademark' (a group of young Native Americans will file a petition to cancel the REDSKINS trademark of the Washington football team, seeking to avoid the laches issue that faced the group that filed the previous petition).
Some background here.
April 25, 2006
Government-Mandated Warnings Re Sexual Content?
News.com: Gonzales Calls For Mandatory Web Labeling Law (Site operators face 5 years in prison for violating rating system intended "prevent people from inadvertently stumbling across pornographic images on the Internet.").
To the extent that I ever feature salacious material, it's to get people to inadvertently stumble across trademark law.
April 20, 2006
Law Review Article Cites Trademark Blog
I suppose a more modest title would have been "Columbia Law Review Article Discusses 'Disparaging' Trademarks.' (See Footnote 42). TTABlog is cited as well.
February 23, 2006
Smile When You Say That
Wired article on Damon Wayans filing for the mark NIGGA for various goods. He has several months to respond to an office action that rejects the application on Section 2(a) 'immoral or scanadalous matter' grounds (well known to those following the DYKES ON BIKES matter).
The DYKES ON BIKES application was approved for publication but was recently opposed. We don't have an (even uncitable) TTAB ruling yet on that applicant's position. Evidence was submitted to establish that use of the terms DYKES by a lesbian social group was empowering, not disparaging. This evidence can support two related but distinct arguments:
1. The term is not disparaging if used by members of the 'target' group;
2. That members of target group would wish to use the term is evidence that cultural standards have evolved such that the term is no longer disparaging (for purposes of Section 2(a)).
Both statements may be true but one concern I have is the fact that terms such as DYKES and NIGGA still retain their offensive qualities when uttered by certain people in certain contexts. How to reconcile that with both arguments? Are there trademarks that can only be owned by members of 'protected classes'? Can the PTO make determinations as to who is and who is not a member of that protected class? Can such trademarks be assignable only to people who will use the term the 'right way'?
Is the analysis for a mark that is merely the per se term, such as NIGGA, different from a term such as DYKES ON BIKES, which is, devoid of any other context, humorous?
February 16, 2006
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.)
December 09, 2005
DYKES ON BIKES Ride To Publication
TARR shows that DYKES ON BIKES (filed by a lesbian biker group) has been approved for publication. Background on the issue (whether members of a group can register a 'scandalous' pejorative term that applies to that group) here.