This Opinion is not a
Precedent of the TTAB
Mailed: November 13, 2015
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Left Nut Brewing Company, Inc.
_____
Serial No. 85935569
_____
Peter E. Morgan of Briskin, Cross & Sanford, LLC,
for the Left Nut Brewing Company, Inc.
Ellen Awrich, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____
Before Bergsman, Shaw and Greenbaum,
Administrative Trademark Judges.
Opinion by Shaw, Administrative Trademark Judge:
The Left Nut Brewing Company, Inc. (“Applicant”) seeks registration on the
Principal Register of the mark LEFT NUT BREWING CO. 1 in standard characters
for “beers,” in International Class 32. Applicant disclaimed the wording “BREWING
CO.”
1 Application Serial No. 85935569 was filed on May 17, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1(b).
Serial No. 85935569
- 2 -
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(a) of the Trademark Act, 15 U.S.C. § 2(a), on the ground that the
applied-for mark consists of immoral or scandalous matter.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We reverse the refusal to register.
I. Preliminary Matter
Before proceeding to the merits of the refusal, we address a preliminary matter.
Applicant, in its brief, objected under Trademark Rule 2.142 to evidence submitted
by the Examining Attorney with her response to the Applicant’s request for
reconsideration filed with Applicant’s appeal.2 Applicant states that it did not
address the evidence inasmuch as the Examining Attorney “did not make such
evidence part of the record or allow Applicant to respond to the same prior to the
appeal.”3
The Examining Attorney’s evidence is properly of record and has been
considered by the Board. “When a timely request for reconsideration of an appealed
action is filed (with or without new evidence), the examining attorney may submit,
with his or her response to the request, new evidence directed to the issue(s) for
which reconsideration is sought.” TBMP § 1207.04; In re Davey Prods. Pty Ltd., 92
USPQ2d 1198, 1201 (TTAB 2009) (evidence submitted in response to a request for
reconsideration that is filed with notice of appeal is part of the application record).
2 1 TTABVUE.
3 Applicant’s Br. at 4; 10 TTABVUE 5.
Serial No. 85935569
- 3 -
II. Section 2(a) refusal
Section 2 of the Trademark Act provides in pertinent part that:
No trademark by which the goods of the applicant may be distinguished from
the goods of others shall be refused registration on the principal register on
account of its nature unless it—
(a) Consists of or comprises immoral . . . or scandalous matter. . . .
15 U.S.C. § 1052(a). The Patent and Trademark Office may prove that a mark is
scandalous and refuse registration by establishing that the mark is “vulgar.” In re
Fox, 702 F.3d 633, 105 USPQ2d 1247, 1248 (Fed. Cir. 2012) (citing In re Boulevard
Entm’t, Inc., 334 F.3d 1336, 67 USPQ2d 1475 (Fed. Cir. 2003)); In re Star Belly
Stitcher, Inc., 107 USPQ2d 2059, 2060 (TTAB 2013). This demonstration must be
made in the context of contemporary attitudes, in the context of the marketplace as
applied to the goods described in the application, and from the standpoint of not
necessarily a majority, but a substantial composite of the general public. In re Fox,
105 USPQ2d at 1248.
Dictionary definitions alone may be sufficient to establish that a proposed mark
comprises scandalous matter, where multiple dictionaries indicate that a word is
vulgar, and the Applicant’s use of the word is limited to the vulgar meaning of the
word. In re Boulevard Entm’t, 67 USPQ2d at 1478 (holding 1-800-JACK-OFF and
JACK OFF scandalous, where all dictionary definitions of “jack-off” were considered
vulgar). Where the meaning of a mark is ambiguous, however, mere dictionary
evidence of a possible vulgar meaning may be insufficient to establish the vulgarity
of the mark. In re Fox, 105 USPQ2d at 1248.
Serial No. 85935569
- 4 -
We also note that, in cases under Section 2(a), the Federal Circuit has approved
of publication of marks where the Board may have doubt that the record supports a
finding that a mark is scandalous. See In re Mavety Media Group Ltd., 33 F.3d
1367, 31 USPQ2d 1923, 1928 (Fed. Cir. 1994) (vacating the Board’s affirmance of a
refusal and noting its preference for the approach taken by the Board in In re In
Over Our Heads Inc., 16 USPQ2d 1653, 1654-55 (TTAB 1990)).
Although the applied-for mark is the LEFT NUT BREWING CO., the refusal to
register is directed to the term “left nut.” Accordingly, our analysis under Section
2(a) focuses on this term.
To support the refusal, the Examining Attorney submitted dictionary definitions
of all of the words in the mark. The following definition from the Merriam-Webster
online dictionary submitted by the Examining Attorney is representative of the
definitions of “nut”:4
NUT noun \ˈnət\
Definition of NUT
1 a (1) : a hard-shelled dry fruit or seed with a separable rind or shell and
interior kernel (2) : the kernel of a nut
b : a dry indehiscent one-seeded fruit with a woody pericarp
2 a : a hard problem or undertaking
b : CORE, HEART
3 : a perforated block usually of metal that has an internal screw thread and
is used on a bolt or screw for tightening or holding something
4 : the ridge in a stringed instrument (as a violin) over which the strings
pass on the upper end of the fingerboard
5 : a small lump (as of butter)
6 a : a foolish, eccentric, or crazy person
4 Office Action of September, 5, 2013, pp. 10-12; Merriam-Webster (2010), www.merriam-
webster.com
Serial No. 85935569
- 5 -
b : ENTHUSIAST
7 plural : NONSENSE —often used interjectionally
8 slang : a person's head
9 usually vulgar : TESTIS
10 : the amount of money that must be earned in order to break even
Four other dictionary definitions provided by the Examining Attorney also indicate
via usage notes that “nut” is considered to be vulgar when used to refer to a testicle:
• Yahoo! Education (2009), http://education.yahoo.com/reference/dictionary/nut,
8. Vulgar Slang A testicle;5
• Wordsmyth (2013), http://www.wordsmyth.net, definition 6: (often pl.; vulgar
slang) a testicle;6
• Webster’s New World College Dictionary (2010),
http://www.yourdictionary.com/nut, 7. b. the testicles: a vulgar usage;7 and
• The American Heritage® Dictionary of the English Language, 5th ed. (2013),
http://www.yourdictionary.com, 8. Vulgar Slang A testicle.8
Because the term “left nut” does not appear in standard dictionaries, the
Examining Attorney included the following definition of “left nut” from the Urban
Dictionary, urbandictionary.com, a crowdsourced online dictionary:9
1. left nut – n. a part of one’s anatomy that one would sacrifice to experience
something exceptional
2. left nut – The back seat of a car directly behind the driver. The seat behind
shotgun is known as right nut....
3. Left Nut – The act of beating someones [sic] ass, without using any effort.
You use as much effort as your left nut.
4. Left Nut – The position of a passenger in the back seat of a vehicle directly
behind the driver
5. left nut – An insult to one, usually stupid or retarded, always sagging, or
sticking out.
5 Office Action of September, 5, 2013, pp. 10-12.
6 Id., pp. 17-18.
7 Office Action of September, 8, 2014, pp. 4-5.
8 Id., pp. 5-6.
9 Office Action of September, 5, 2013, pp. 19-24.
Serial No. 85935569
- 6 -
6. left nut – the left testicle
a left wing screwball
anyone of the political left
The Examining Attorney also introduced a number of Internet articles and other
web site excerpts which use the term “left nut” in various contexts:10
• The DMV Can Suck my Left Nut, theonion.com, the title of a commentary on
renewing a driver’s license at the department of motor vehicles;
• Alan Simpson’s Advice to Reporter: “Grab Your Left Nut For Luck,”
huffingtonpost.com, the title of an article discussing quotations from former
U.S. Senator Alan Simpson;
• Should I Get a 2nd Opinion On My Sore Left Nut?, metafilter.com, a question
posed on a self-help question and answer web site discussing when to seek
medical help;
• Top Five Things You’d Give Your Left Nut To Do, epictv.com, the title of an
article on extreme sports trends on a website featuring travel and adventure
videos;
• I would Give My Left Nut To Play Ball And Party With This Year’s Phillies
Phantasy Camp Roster, barstoolsports.com, the title of an article on a sports
web site discussing the merits of a fantasy baseball roster;
• What game would you give your left nut (or ovary) to see remastered?,
bungie.net, the title of a thread in an online computer gaming forum;
• “Grab your left nut, make your right one jealous,” metrolyrics.com, lyrics
from the song Just Lose It by musical artist Eminem;
• “At one point or other, most of us have said something like, ‘I’d give my left
nut if I could....’”, talkingaboutmenshealth.com, a statement in an article
about surgical errors;
• “Hey left nut? ... What right nut? ... Who’s the penis between us?”,
www.someecards.com, a joke appearing on an electronic greeting card; and
• “Lance Armstrong Exchanged Left Nut for Steroids … the former champion
traded his left nut in exchange for steroids … [mailed] his left testicle
through Fed Ex.”, bsgossip.com, an article discussing cyclist Lance
Armstrong’s cancer and steroid use.
10 Office Action of March 12, 2015, pp. 2-38.
Serial No. 85935569
- 7 -
Based on the foregoing evidence, the Examining Attorney argues that “[w]hen
‘LEFT NUT’ is considered as a unit, the meaning is clearly limited to the vulgar
meaning referring to the left testicle,”11 and is thus scandalous under Section 2(a).
Applicant’s arguments against the refusal to register are essentially two-fold.
First, Applicant argues that the Examining Attorney impermissibly burdened
Applicant with proving that the mark is not vulgar. Second, Applicant argues that
the evidence of record shows that the mark is not vulgar in that it has a number of
non-vulgar meanings, similar marks have previously registered, and such
anatomical references are not per se vulgar.
Applicant’s first argument is unavailing. The U.S. Patent and Trademark Office
has the burden of proving that a trademark falls within the prohibition of Section
2(a). Mavety, 31 USPQ2d at 1925. But if such a showing is made, the burden of
rebuttal shifts to Applicant. In re Squaw Valley Dev. Co., 80 USPQ2d 1264, 1267,
1271 (TTAB 2006). Whether a mark comprises scandalous matter is a conclusion of
law made by the Board based upon underlying factual inquiries. Mavety, 31
USPQ2d at 1926.
In support of her refusal, the Examining Attorney submitted numerous
dictionary definitions of the term “nut” which included usage notes describing the
term as vulgar when referring to the testicles, as well as a definition of the term
“left nut” from the Urban Dictionary and a number of excerpts from the Internet
showing use of the term “left nut” referring to the left testicle. Applicant submitted
11 Examining Attorney’s Br. at 8; 12 TTABVUE 9.
Serial No. 85935569
- 8 -
evidence in support of registration showing that “nut” has non-scandalous meanings
when used in connection with beer, and that marks comprising anatomical
references, including several “nut” marks, have previously registered.
Applicant argues that the Examining Attorney impermissibly burdens it with
proving that the mark is not vulgar because the Examining Attorney stated that
“there is no evidence that the applicant uses ‘NUT’ to mean anything other than the
vulgar meaning . . . . thus expressly burden[ing] the applicant with proving a non-
vulgar use.”12 Applicant misapprehends the nature of the shifting burden of proof.
Once the Examining Attorney arguably showed that “left nut” is vulgar by way of
the dictionary definitions and Internet excerpts, it became Applicant’s burden to
show that “left nut” is not vulgar. It is not improper for the Examining Attorney to
contend that, based on the evidence, “left nut” is prima facie vulgar under Mavety,
and Applicant’s showing has not rebutted the Examining Attorney’s evidence.
Moreover, it is the Board, not the Examining Attorney or the Applicant, that
decides whether a prima facie showing has been made, or whether Applicant has
rebutted such a showing. See Star Belly Stitcher, 107 USPQ2d at 2062.
Applicant’s second argument, that the evidence does not support a finding that
the mark is not vulgar, is more persuasive. The evidence of record from both the
Examining Attorney and Applicant shows that “left nut” has a number of different
meanings and is not always vulgar, even when sometimes referring to a testicle.
12 Applicant’s Br. at 6; 10 TTABVUE 7.
Serial No. 85935569
- 9 -
The Urban Dictionary definition of “left nut” submitted by the Examining
Attorney shows that the term has a number of meanings. “Left nut” can, of course,
refer to the left testicle. It also can be a figure of speech used to describe the lengths
to which someone might go to attain something of great value. It can refer to a
passenger’s position in an automobile, i.e., behind the driver. And it can refer to a
member of the “political left” or a “left wing screwball.”13 Only the first of these
meanings is arguably vulgar and, therefore, immoral or scandalous under Section
2(a).
Similarly, the Internet excerpts submitted by the Examining Attorney present a
mixed picture of the vulgarity of the term “left nut.” In one excerpt, former U.S.
Senator Alan Simpson tells a reporter to “Grab Your Left Nut For Luck.” In four of
the excerpts, the term is used as a figure of speech for something of great value. In
two excerpts, the term “left nut” is used in a strictly anatomical or medical sense to
refer to the left testicle. In only three of the excerpts, the onion.com article, the
lyrics by Eminem, and the someecard.com card, is the term used in what could be
considered a primarily vulgar form.
Finally, Applicant points to a number of arguably equally-suggestive “nut”
marks which have registered, including:
• MY HUSBAND’S NUTS, in typed form, for “candied, shelled, roasted and
seasoned” nuts and almonds;14
13 http://www.urbandictionary.com; Office Action of September, 5, 2013, pp. 19-24.
14 Reg. No. 2984922, issued August 16, 2005; Applicant’s response of March 4, 2014, p. 45.
Applicant’s reliance on Application Ser. No. 85894817 for the mark MY MOM’S NUTS is
misplaced inasmuch as pending applications have no probative value. Nike Inc. v. WNBA
Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007)
Serial No. 85935569
- 10 -
• SMELL MY NUTS, in standard characters, for scented candles;15
• MY FAMILY’S NUTS, in standard characters, for “candied, shelled,
roasted and seasoned nuts;”16 and
• HAVE SOME GUTS. . .CHECK YOUR NUTS, in standard characters, for
wristbands.17
These registrations suggest that, as Applicant argues, “anatomical references
alone are not vulgar.”18
On balance, we find that the evidence does not establish that the term “left nut”
is vulgar. Although the usage notes to “nut” show that it is vulgar when referring to
the testicles, “nut” and “left nut” have a number of other non-vulgar meanings.
Moreover, “left nut” has been used to refer to the left testicle by senators and web-
authors with no evidence of offense or disapproval, and the Office has registered
similarly-suggestive “nut” marks. Accordingly, we find that the term “Left Nut”
within the applied-for mark “Left Nut Brewing Co.” is not vulgar and thus not
immoral or scandalous within the meaning of Section 2(a) when used on beers.
Decision: The refusal to register Applicant’s mark LEFT NUT BREWING CO.
under Section 2(a) of the Lanham Act is reversed.
15 Reg. No. 3079622, issued April 11, 2006; Applicant’s response of March 4, 2014, p. 48.
16 Reg. No. 3410469, issued April 8, 2008; Applicant’s response of March 4, 2014, p. 50.
17 Reg. No. 4024170, issued September 6, 2011; Applicant’s response of March 4, 2014, p.
67.
18 Applicant’s Br. at 15; 10 TTABVUE 16.
