Friday, May 22, 2009

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


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.


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.


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.

Friday, May 15, 2009

Taking Off


I have decided that 2009 is the year I go solo.
I will be recording my progress here, as well as my general thoughts of the law.
Some of my posts will be humorous, some will likely be made in anger.
This is part business and part expression.

Lyon Legal is a firm seeking to focus in Copyright and Trademark litigation.
I have more than 4 years of experience as a litigator. I have appeared for clients in cases in District and Circuit Courts in Maryland and in the local courts of the District of Columbia. I have also appeared for clients in the United States District Court for the District of Maryland and the District of Columbia.

I also maintain a license to practice in Oklahoma, where I have many family and friend connections, though I have never practiced law there.

In addition to this blog I have a twitter presence

and I am on facebook:


I was born and raised in Oklahoma City.
I went to Rosary Catholic school for primary school, and Northwest Classen High School.
My college education began with 2 years at St. Gregory's College (now St. Gregory's University) where I acquired an Associate's Degree in Natural Sciences.
I went on to obtain a Bachelor's Degree in History from Cornell University.
Returning to Oklahoma for personal reasons, I received a Masters Degree in Museum Studies from the University of Central Oklahoma.
After a few years working in that and related fields I realized my great interest in property rights of artists and authors.
In 2004 I graduated from the George Washington University law school.
I was licensed in Maryland in December of that year and in the District of Columbia the following year. Two years after that I became licensed in Oklahoma.

My practice has been diverse. I have handled bankruptcies, divorces and child support cases, contract disputes, personal injury, and of course copyright and trademarks.
I set out on my own, inspired by President Obama's inaugural address and look forward to the fulfillment of being my own boss.