We see again that the ill-defined “scandalous” criterion for rejecting trademark registration applications — and not merely those involving hot-button ethnic slurs — lives, as John Welch reports (not safe for work, and, really, for home either — why not just read my nice version right here?):
In the Board’s latest Section 2(a) rulings, Applicant RK Netmedia failed in its attempt to register [certain] marks . . . for “entertainment services in the nature of photographic images, pictures, video and audio recordings,and information regarding adult oriented subject matter transmitted through a global computer network.” The Board concluded that the marks “would be offensive to a substantial composite of the general public and [are] therefore prohibited by Section 2.” In re RK Netmedia, Inc., Serial Nos. 77060742 and 77060766 (May 21, 2009) [not precedential].
Marc Randazza (well-regarded First Amendment lawyer and blogmaster of The Legal Satyricon) argued on behalf of Applicant that the word [making up part of the mark sought to be registered] is not scandalous “in the context of the marketplace as applied to only the goods or services in the application for registration.”
The Board, however, took a different view of the precedents: “we hold that the determination of whether a term is scandalous or immoral is determined by the perceptions held by a substantial composite of the general public, not merely applicantâ€™s customers or potential customers.”
Marc is always the gamer on this issue, and you can hardly blame him for having a devil of a time figuring out what exactly the rationale is behind scandalousness in the PTO — it’s a logical mess, in which political correctness as to certain matters seems very much to be an unspoken criterion.
You can blame him, though, for trying to register dirty trademarks. I do!