Toughen up you "Pussy"

One week ago the US Patent and Trademark Office's Trademark Trial and Appeal Board upheld an examiner's decision not to register a trademark for a new energy drink. The proposed mark is a stylized phrase, "PUSSY NATURAL ENERGY." The TTAB didn't like the word "pussy".

The Decision

HOW CAN THEY REFUSE?

The Trademark Act Section 2(a), 15 U.S.C. § 1052(a), permits the USPTO to deny registration of a mark on the grounds that the mark “consists of or comprises immoral or scandalous matter.”
So the examiner found the word "PUSSY" to be scandalous and the TTAB agreed.
In fact the examiner found the word to be a term for female genitalia that is "vulgar, offensive, taboo, obscene and coarse".
The decision provides a list of interesting terms, some deemed scandalous (Bubby Trap brasiers), others deemed not scandalous (Big Pecker T-shirts). So even if a mark is unique and not descriptive or suggestive, registration can be denied if it is too vulgar.

BUT NOT ALL MEANINGS ARE VULGAR

True that there are other meanings, such as a cat or a pussywillow, etc. But what the PTO has to decide is whether it has a vulgar meaning to a substantial group. For instance if there's a word with one meaning to most people, but in a particular ethnic minority community it bears a different, offensive meaning, the PTO can refuse registration. In this case the PTO decided to a large number of people the term would signify something vulgar and offensive.
But that's true for Big Pecker too. The difference is Big Pecker included a picture of a chicken with a gigantic beak. It was permitted because it held an obvious double meaning. The double entendre was the clear message. The PTO and TTAB rejected out of hand any argument that "PUSSY" has a double meaning in that context.
On that I disagree with them. In the context of an energy drink I think the meaning of a "weak or cowardly man" is clearly playing along side the obvious vulgar jokes around having a beverage called "pussy". I think the TTAB was wrong to dismiss it so readily, but I'm not sure the decision was wrong. "Pussy" as a term for a "weak or cowardly man" derives from the chide that the object is not really a man but is in fact a woman. In other words, along with being a vulgar reference to female anatomy, it carries a wealth of negative female stereotypes. If anything I would think such a meaning is worse.

BUT WHAT ABOUT FREE SPEECH?

It seems they should not stand in the way of him using the name despite its vulgar quality, and guess what; they aren't. He is still perfectly free to sell his drink and call it whatever he wants to (provided he's not making false claims about it). Trademark registration is a tool that helps a mark holder to exercise the rights he gets through use of the mark. He can go ahead and sell his drink, and judging by all of his foreign registrations, looks like he will.

At the end of the day, my problem lies with the statute itself. Whether or not something is scandalous is so subjective and so clearly changeable. I don't think the federal government should be making moral judgments about the content of a mark. As long as it is distinctive and exclusive, that should be enough. So, while I think this is a bad law, I think the TTAB was correct in interpreting that bad law.
The history on the statute is scarce, and the courts have determined that the purpose behind it was not to legislate morals, but merely to prevent the government from spending time, money and providing services for objectionable material. (In re McGinley, 660 F.2d 481)
Of course, how is refusing to provide services based upon the offensive quality of the material not legislating morality? There is no difference between providing a benefit to everyone but those you deem immoral and penalizing those you deem immoral. Plus, I suspect more money and time are spent in fighting over denial of registration than would have been provided if registration had been approved.

So Scalia was simply wrong when he said Lawrence v. Texas spelled the end of morality-based state action.