On October 29, 2015, the TTAB reversed a refusal to register the mark NUT SACK DOUBLE BROWN ALE for beer, disagreeing with the Examining Attorney’s finding that it contains immoral or scandalous matter under Section 2(a) of the Lanham Act.
To refuse registration of a mark under this provision, the USPTO has the burden of establishing that the mark is scandalous or immoral in the context of contemporary attitudes, the goods sold in the marketplace (i.e. beer), and from the standpoint of a “substantial composite” of the general public. The Board found the record evidence conflicting at best.
For example, the Examining Attorney provided dictionary definitions establishing that the term “nut sack” is slang for the scrotum or, alternatively, a derogatory insult for a person. While acknowledging that many of these dictionaries labeled the term vulgar, the Board found that the editorial label of vulgar usage in dictionaries is not necessarily reflective of whether a “substantial composite” of the general public considers the word scandalous.
In response to the applicant’s argument that “nut sack” is innocuous, the Board agreed that in the context of the mark as a whole, “nut” would describe a flavor or style of ale “rather than being an obvious reference to the testicles.” Less convincing was the applicant’s argument that the word “sack” might suggest a “sackful of flavor” because consumers may associate the term with the “sack” used to keep large particulates out of the beer during the brewing process. Given the readily understood meaning of “nut sack” in common parlance, the Board was unpersuaded.
Similarly, both the Examining Attorney and the applicant supported their respective arguments with examples of third-party registrations and applications containing variations of the term “Nut Sack,” such as “Knuttsak” for underwear (registered), “Nutsac” for sports bags (registered), “NUTSACK” for laundry detergent (registered), “THE NUTSACK” for canvas bags for storing nuts (refused as scandalous), and “NUT SAC” for beer (refused as scandalous). Because these examples were both few and conflicting, the Board did not find them determinative either way.
Ultimately, the Board found that “some terms, such as ‘Nut Sack’ appearing within ‘Nut Sack Double Brown Ale’ may seem somewhat taboo in polite company, but are not so shocking or offensive as to be found scandalous within the meaning of the statute.” The Board found this particularly true given that the mark is for beer:
This is an adult beverage, the consumption of which is commonly associated with the relaxation of inhibitions . . . 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 case is In re Engine 15 Brewing Co., LLC, Serial No. 86038803 (Oct. 29, 2015).
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