“Scandalousness” remains a lightning rod at the TTAB
John Welch reports on an interesting, not quite safe for home viewing case called Boston Red Sox Baseball Club Limited Partnership v. Brad Francis Sherman in which the TTAB sustained an opposition to a trademark brought by the Boston Red Sox, owners of the RED SOX mark, regarding a mark we will not name here that the Bosox argued was, among four other things, scandalous and therefore not registrable. The scandalousness ground — a topic we’ve visited here frequently — was among those upheld by the panel:
Scandalousness: Applicant Sherman contended that [the mark] is a parody of the RED SOX stylized mark, comprising an “elegant and symmetrical transposition” of RED SOX, a subtle play on words that “enhances the humor.” According to Sherman, “the elegance of the execution mitigates any perceived vulgarity of the resulting turn of phrase.” In his view, the mark “represents the at once clever yet sophomoric sense of humor that prevails in those venues in which apparel bearing the [applicant’s] Stylized mark would likely be worn, e.g., ballparks, sports bars, and university campuses.”
The Board, however, noted that the marketplace includes all public places where clothing would be worn or purchased. Sherman’s mark would convey “not a sexually suggestive connotation as applicant contends, but rather a sexually explicit message to the viewer.” Use of the term on children’s and infant clothing “makes the term particularly lurid and offensive.” Whether Sherman intended the mark to be humorous, or whether some people would see it as humorous, is immaterial. A substantial portion of the public would see it as vulgar.
Well that sounds pretty reasonable. Read the item at John’s blog and the narsty content of the trademark application, and see if you disagree.
(We are now just going to sit here and wait for Marc Randazza‘s comment to constitute the continuation of this item.)