Jibjab Media, Inc.

Trademark Trial and Appeal Board

Feb 4, 2009

No. 78951377 (T.T.A.B. Feb. 4, 2009)

Mailed: February 4, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Jibjab Media, Inc.
________

Serial No. 78951377
_______

Eric W. Hagen of McDermott Will & Emery LLP for Jibjab
Media, Inc.

Gina Hayes, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
_______

Before Kuhlke, Cataldo and Ritchie,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

An application was filed by Jibjab Media, Inc. to
register on the Principal Register the mark A-HOLE PATROL
in standard characters for the following services, as
amended: “Online social club that screens jokes submitted
by users to control offensive and inappropriate content” in
International Class 41.1

1 Application Serial No 78951377 was filed on August 14, 2006,
based upon applicant’s assertion of a bona fide intent to use the
mark in commerce in connection with the services. On July 19,
2007, applicant filed an amendment to allege use reciting April
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 78951377
2
The examining attorney refused registration under
Section 2(a) of the Trademark Act on the ground that the
mark sought to be registered consists of or comprises
immoral or scandalous matter. When the refusal was made
final, applicant appealed. Applicant and the examining
attorney filed main briefs on the issue under appeal and
applicant filed a reply brief.2
The examining attorney, relying upon several
dictionary definitions and printouts of articles retrieved
from the Internet, contends that because A-HOLE in
applicant’s mark is a term for the word “asshole,” the mark
is accordingly scandalous. Specifically, in support of her
position, the examining attorney submitted the following
definitions:
(1) asshole: Vulgar Slang. 1. The anus. 2. A thoroughly
contemptible, detestable person. 3. The most miserable or
undesirable place in a particular area.3
(2) asshole: 1 usually vulgar: ANUS; 2a usually vulgar:
a stupid, incompetent, or detestable person; b usually

17, 2006 as a date of first use of the mark anywhere and in
commerce in connection with the services and a specimen of use.
2 Inasmuch as the refusal to register is based solely upon the
examining attorney’s contention that the mark comprises immoral
or scandalous matter, applicant’s arguments directed toward
disparagement will be given no consideration.
3 American Heritage Dictionary of the English Language, 4th Ed.
(2006).

Ser No. 78951377
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vulgar: the worst place — used in phrases like asshole of
the world.4
(3) asshole: Definition 1. (vulgar) the anus. Definition
2. (slang) a contemptible or stupid person. Definition 3.
(slang) the worst part of a thing or place.5
(4) asshole: Noun Vulgar 1. anus. 2. Slang. A. a stupid,
mean or contemptible person. B. the worst part of a place
or thing. Adjective 3. Slang. Stupid, mean, or
contemptible.6
In addition, the following are illustrative excerpts
from Internet articles made of record by the examining
attorney:
Much as I concur with the assessment that Sparky
is an asshole – hereinafter referenced, in
accordance with community standards, as an “a-
hole” – it is my considered opinion, as well as a
team of experts assembled to study the situation,
that our public life will be much the poorer
without Sparky on the scene.7

In a fourth matter, the respondent raised her
voice while being addressed by the judge after
receiving an unfavorable ruling in court. The
judge admonished respondent to lower her voice or
be held in contempt. Shortly after respondent
left the courtroom, a loud thumping noise was
heard along the wall bordering the jury box. The
noise startled the entire court, including the
jury. In response to ODC, the respondent
acknowledged calling the judge an “ass hole”

4 Merriam-Webster Dictionary.
5 www.wordsmyth.net/live/home
6 Random House Unabridged Dictionary, (2006).
7 Salt Lake City Weekly (Utah) September 6, 2007.
Ser No. 78951377
4
under her breath. The respondent further
explained her heel came loose so she stamped the
heel of her shoe back against the wall twice.8

It was Friday evening, and like most folks, I’d
spent the twilight hours sitting impatiently in
my car, squinting into the setting sun and
listening to some DJ explain why we were all just
sitting there on the highway burning up gas
instead of coasting along at a decent clip. I
usually just blame all the accidents and delays
on some ass-hole distracted by his cell phone
conversation and dismiss the rest.9

The Subtext seemed to be that difficulty in
fiction is the tool of socially privileged
readers and writers who turn up their noses at
the natural pleasure of a “good read” in favor of
the invidious, artificial pleasure of feeling
superior to other people. To Mrs. M--, I was a
“pompous snob, and a real ass-hole.”10

The examining attorney also submitted definitions of A-
HOLE:
(1) A hole: Polite, unoffensive [sic] manner to refer to
someone as an asshole. He is such an *A hole*.11
(2) A-hole: an asshole, a very stupid or annoying person.
(Usually refers to a male. Used informally by both sexes
in avoidance of asshole. Also a term of address.) Tom can
be an A-hole before he’s had his coffee. This A-hole comes

8 South Carolina Lawyers Weekly, November 28, 2005.
9 Birmingham Weekly (Alabama), January 27, 2005 – February 3,
2005.
10 The New Yorker, September 30, 2002.
11 Urban Dictionary, urbandictionary.com.
Ser No. 78951377
5
up to me and asks for a free oil change.12
In view of the above evidence, the examining attorney
argues that the record confirms that A-HOLE is a term for
“asshole” and that such term is accordingly scandalous.
Applicant, in urging reversal of the refusal, argues
that the examining attorney has not met her burden of
establishing that the term A-HOLE is scandalous.
Specifically, while agreeing that the term “asshole” is not
“appropriate as a trademark,”13 applicant contends that the
examining attorney’s evidence demonstrates that A-HOLE is a
more polite and “sanitized” substitute therefor.14
Applicant further contends that A-HOLE has an alternate
meaning as a shorthand reference to “analog hole.”15
Applicant argues in addition that the United States Patent
and Trademark Office (USPTO) previously has issued a
registration to a third party for the following mark16:

12 Forbidden American English, Richard A. Spears (1994).

13 Brief, p. 6.
14 Id.
15 Id., referring to Internet article at boingboing.net attached
to April 18, 2008 request for reconsideration.
16 Registration No. 1408493 issued on September 9, 1986, for
“calendars and decalomanias” in Class 16 and “caps and T-shirts”
in Class 25. Cancelled under Section 8, March 15, 1993.
Ser No. 78951377
6

as well as numerous third-party registrations for marks
containing the term “ass” variably used “in a pejorative,
risqué, off-color, or belligerent manner.”17 Applicant has
introduced copies of such third-party registrations in
support of its contention.18 Finally, applicant submitted
the April 18, 2008 declaration of Tim Gillons, its Director
of Operations, attesting that since launching its A-HOLE
PATROL service on April 17, 2006, he has “never encountered
any user complaints that the mark is viewed as offensive,
vulgar, profane, indecent, or otherwise inappropriate.”19
Registration of a mark which consists of or comprises
immoral or scandalous matter is prohibited under Section
2(a) of the Trademark Act. Our primary reviewing court,
the U.S. Court of Appeals for the Federal Circuit, has
stated as follows:
To justify refusing to register a trademark under
the first clause of section 1052(a), the PTO must
show that the mark consists of or comprises
“immoral, deceptive, or scandalous matter.” In
re Mavety Media Group, Ltd., 33 F.3d 1367, 1371
(Fed. Cir. 1994). A showing that a mark is
vulgar is sufficient to establish that it
“consists of or comprises immoral … or scandalous
matter” within the meaning of section 1052(a).
See id. at 1373-74 (analyzing a mark in terms of
“vulgarity”); In re McGinley, 660 F. 2d 481, 485

17 Id.
18 April 18, 2008 request for reconsideration.
19 Id.
Ser No. 78951377
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(CCPA 1981)(quoting with approval In re Runsdorf,
171 USPQ 443, 443-44 ( TTAB 1971), which refused
registration of a mark on grounds of vulgarity).
In meeting its burden, the PTO must consider the
mark in the context of the marketplace as applied
to the goods described in the application for
registration. McGinley, 660 F.2d at 485. In
addition, whether the mark consists of or
comprises scandalous matter must be determined
from the standpoint of a substantial composite of
the general public (although not necessarily a
majority), and in the context of contemporary
attitudes, Id., keeping in mind changes in social
mores and sensitivities. Mavety, 33 F.3d at
1371.

In re Boulevard Entertainment, Inc., 334 F.3d at 1336, 67
USPQ2d 1475, 1477 (Fed. Cir. 2003). In cases in which the
evidence demonstrates that the term in question has only
one pertinent meaning, dictionary definitions alone can be
sufficient to satisfy the USPTO’s burden of establishing
that such term is scandalous. Id., 334 F.3d at 1341-2, 67
USPQ2d at 1478.
Considering first the dictionary definitions of
record, they uniformly indicate that the term “asshole” is
a vulgar term for either a stupid, contemptible or
detestable person, or a part of the body. Further, the
dictionary definitions, as well as Internet evidence,
consistently indicate that an A-HOLE is an “asshole.”
Applicant’s mark, A-HOLE PATROL, is used to identify
an “Online social club that screens jokes submitted by
users to control offensive and inappropriate content.”
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8
Further, applicant’s specimen, submitted with its amendment
to allege use, indicates as follows:
The A-Hole Patrol is JibJab’s volunteer community
police force that is entrusted with helping keep
the JibJab community safe from pornographers,
hate mongers and extremists. The A-Hole Patrol
(1) reviews new submissions to JibJab (2)
investigates reports of abuse in the community
and (3) re-reviews jokes that have been reported
as offensive by JibJabbers.

If the A-Hole Patrol determines that the joke
meets any of the following criteria, it will be
pulled from the site.

Is not a Joke
Contains Explicit Pornography
Contains Graphic Violence
Contains Hateful Material
Joke is not visible or appears to be broken20

Based upon the foregoing, it is clear that as used in the
context of applicant’s A-HOLE PATROL mark, A-HOLE is a
slang term meant to refer to a detestable person, and not
an anatomical feature. Nor are we persuaded that a single
use in an Internet article of A-HOLE as a shorthand term
for “analog hole” as applied to conversion of analog music
and video to digital files suggests that the term has a
common, non-vulgar meaning. Indeed, it is unclear from the
article whether the author intends to convey a vulgar
connotation by referring to “controversial Analog Hole”

20 Printout from jibjab.com/help/5, submitted with applicant’s
July 19, 2007 amendment to allege use.
Ser No. 78951377
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legislation as an “‘A-Hole’ bill.”21 In any event, the
potentially non-vulgar meaning has no applicability in this
context.
Thus, this case is distinguishable from the situation
in Mavety wherein the Court found that the term “tail,” in
the context of the use of BLACK TAIL as applicant’s mark
for magazines, had both a vulgar and equally applicable
non-vulgar meaning. Here, the dictionary evidence
overwhelmingly demonstrates that the meaning of “asshole”
is vulgar and that the term would be scandalous to a
substantial composite of the general population. As noted
by the Federal Circuit in In re Boulevard Entertainment,
supra at 1478, “dictionary definitions represent an effort
to distill the collective understanding of the community
with respect to language and thus clearly constitute more
than a reflection of the individual views of either the
examining attorney or the dictionary editors.” We note in
addition that applicant acknowledges that the term
“asshole” is unsuitable for trademark registration.
Further, we are not convinced that the term A-HOLE is
“sanitized” or otherwise non-vulgar. The mere fact that
the term A-HOLE is utilized in two slang dictionaries and

21 April 18, 2008 request for reconsideration.

Ser No. 78951377
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an Internet article as a substitute to avoid use of the
word “asshole” - while clearly conveying the same meaning -
does not persuade us that the public would regard the term
as non-scandalous. In other words, the evidence of record,
while sufficient to support a finding that A-HOLE is less
vulgar than “asshole,” is insufficient to support a finding
that A-HOLE is itself a non-vulgar, non-scandalous term.
The third-party registrations relied upon by applicant
are not persuasive of a different result herein. The
cancelled third-party Registration No. 1408493 for the mark

is not evidence of anything except that it issued. See
TBMP §704.03(b) (2d ed. rev. 2004) and cases cited therein.
See also Time Warner Entertainment Co. v. Jones, 65 USPQ2d
1650 (TTAB 2002). Further, the highly stylized manner in
which the mark is presented suggests that the term A HOLE
as it appears therein may allow for a broader range of
interpretation than the term A-HOLE as it appears in
applicant’s A-HOLE PATROL mark. With regard to the
remaining third-party marks, we note that while many of
them consist in part of the term ASS, none contain either
Ser No. 78951377
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the term “asshole” or A-HOLE. In addition, and as often
noted by the Board, each case must be decided on its own
merits. We are not privy to the records in the files of
such registrations and, moreover, the determination of
registrability of particular marks by the Trademark Law
Offices cannot control the result in another case involving
a different mark. See In re Nett Designs, Inc., 57 USPQ2d
1564 (Fed. Cir. 2001). [“Even if some prior registrations
had some characteristics similar to [applicant’s]
application, the PTO’s allowance of such prior
registrations does not bind the Board”].
Finally, we note applicant’s contention that its
Internet website receives an average of 1 million page
views per day, and that it is unaware of any complaints
that its A-HOLE PATROL mark is viewed as vulgar by its
users. We further appreciate the irony that the services
offered under applicant’s A-HOLE PATROL mark are intended
to control and excise from applicant’s Internet humor site
materials that are offensive to its users as a result of
being graphically violent, pornographic, hateful, or simply
devoid of humor. Nonetheless, the record in this case, as
analyzed within the parameters of the statute and case law,
supports a finding that applicant’s mark consists in part
of a term that is considered vulgar by a substantial
Ser No. 78951377
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portion of the general public, not simply users of
applicant’s website, and therefore would be viewed as
scandalous thereby.
Decision: The refusal to register under Section 2(a)
is affirmed.