Are Things Getting Nutty at the USPTO?
As we enter the Thanksgiving and holiday season this year, it is particularly apropos to ponder the following question: Is the TTAB going nuts? Congress tells us that the PTO cannot register trademarks that are scandalous or immoral due to Section 2(a) of the Lanham Act. This legal issue has now been laid bare in two recent decisions involving beer companies and their not-so-subtle references to the male anatomy in trademark applications.
The first nut case involves the mark “Nut Sack Double Brown Ale” that applicant sought to register for “beer.” The examining attorney found the mark immoral or scandalous and, accordingly, the applicant got nutin’. To the delight of some and dismay of others, the TTAB reversed. After an extensive entomological (and anatomical!) discussion regarding the term “nut sack,” the TTAB concluded as follows: “This is an adult beverage, the consumption of which is commonly associated with the relaxation of inhibitions. As seen above, there is a totally innocuous reason for selecting the word “Nut” in the context of a “Nut Brown Ale.” We conclude that beer drinkers can cope with Applicant’s mark without suffering meaningful offense. Moreover, the consumer of this product who conjures up body parts or insults is nonetheless still likely to see the mark as an attempt at humor.”
The second nut case involves the mark “Left Nut Brewing Company,” which the examining attorney likewise refused to register for “beers” because it was vulgar and, therefore, scandalous or immoral. But, once again, the TTAB showed its penchant for embracing nutty humor. The Board examined many different references to the term “Left Nut” (including a prominent politician’s use of the term) and concluded that this mixed bag of evidence showed the term was not scandalous or immoral. The refusal was reversed.
The nuts and bolts of both cases appears to be this: (1) Context matters. A refusal under Section 2(a) is proper only if the evidence shows that the applied-for 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.” According to the Board, consumers of the goods at issue are going to be less offended by these beer marks and can cope without unduly suffering; and (2) If there is conflicting evidence on whether the term is shocking to the sense of decency, then that bodes ill for the refusing examiner. It’s kind of an all or nutin’ proposition.
So, are things getting nutty at the USPTO? Or, is it about time that applicants are now able to crack the surface of Section 2(a)? It probably depends on one’s perspective. Either way, it won’t come as a surprise if we see a lot more nut cases headed to the PTO this holiday season and thereafter.