Mailed:
May 14, 2009
jtw
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Shearer
________
Serial No. 78690531
_______
Michelle A. Hon of Duane Morris LLP for Jonathan Shearer.
William T. Verhosek, Trademark Examining Attorney, Law
Office 114 (K. Margaret Le, Managing Attorney).
_______
Before Kuhlke, Walsh and Taylor, Administrative Trademark
Judges.
Opinion by Walsh, Administrative Trademark Judge:
Jonathan Shearer (Applicant), a citizen of the United
Kingdom, has applied to register the mark shown below on
the Principal Register for goods now identified as:
non-alcoholic beverages, namely, carbonated
beverages; non-alcoholic aperitifs and cocktail
drinks; mineral and aerated waters; fruit drinks
and fruit juices; non-alcoholic fruit extracts
used in the preparation of beverages; fruit
nectars; syrups for making beverages, and other
preparations for making carbonated beverages,
non-alcoholic aperitifs, nonalcoholic cocktail
drinks, fruit drinks, fruit juices, energy drinks
and isotonic beverage drinks; energy drinks;
isotonic beverage drinks; powders and pastille
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 78690531
2
preparations used in the preparation of
effervescing carbonated beverages; and beer, in
International Class 32.
The application includes the following statements:
The color(s) pink, black and silver is/are
claimed as a feature of the mark.
and
The mark consists of the color pink appearing in
the wording "NATURAL ENERGY" and in the top
portion of the wording "PUSSY"; the color black
appearing in the lower portion of the wording
"PUSSY"; and the color silver appearing in the
outline of the wording "PUSSY".
Furthermore, Applicant has disclaimed “NATURAL ENERGY.”1
The Examining Attorney has issued a final refusal
under Trademark Act Section 2(a), 15 U.S.C. § 1052(a), on
the grounds that the mark “consists of or comprises immoral
or scandalous matter.” Final Office Action, dated May 5,
2008 at 5. The Examining Attorney explains further, “The
applied-for mark PUSSY is slang for ‘female genitalia’ or
reference to women sexually and is thus scandalous because
1 Application Serial No. 78690531, filed August 11, 2005, based
on European Community Registration No. 004580106 under Trademark
Act Section 44(e), 15 U.S.C. § 1126(e), and claiming priority
based on the filing of corresponding Application Serial No.
004580106, filed on August 2, 2005, under Trademark Act Section
44(d), 15 U.S.C. § 1126(d).
Serial No. 78690531
3
such term is described as vulgar, offensive, taboo, obscene
and coarse.” Id. Applicant has appealed. Applicant and
the Examining Attorney have filed briefs.
In this case, it is the term PUSSY which is the focus
of the refusal and our analysis. The term PUSSY is the
most significant element in the mark. Accordingly, when we
discuss the term PUSSY alone, we are mindful that the
entire mark is the mark shown above.
We affirm.
Background
Before addressing the arguments and evidence presented
by Applicant and the Examining Attorney, we will first
review the standards which govern in determining whether a
mark is scandalous under Section 2(a). The Court of
Appeals for the Federal Circuit set forth the standards in
In re Mavety Media Group Ltd., 33 F.3d 1367, 31 USPQ2d 1923
(Fed. Cir. 1994). In that case the Federal Circuit states:
In order to prove that Mavety's mark BLACK TAIL
is scandalous, the PTO must demonstrate that the
mark is “shocking to the sense of truth, decency,
or propriety; disgraceful; offensive;
disreputable; … giving offense to the conscience
or moral feelings; … [or] calling out [for]
condemnation.” In re Riverbank Canning Co., 95
F.2d 327, 328, 37 USPQ 268, 269 (CCPA 1938)
(citations omitted). The PTO must consider the
mark in the context of the marketplace as applied
to only the goods described in Mavety's
application for registration. In re McGinley,
660 F.2d 481, 485, 211 USPQ 668, 673 (CCPA 1981).
Serial No. 78690531
4
Furthermore, whether the mark BLACK TAIL,
including innuendo, comprises scandalous matter
is to be ascertained (1) from “the standpoint of
not necessarily a majority, but a substantial
composite of the general public,” id., 211 USPQ
at 673, and (2) “in the context of contemporary
attitudes,” In re Old Glory Condom Corp., 26
USPQ2d 1216, 1219 (TTAB 1993).
Id. at 1925-26.
The Federal Circuit elaborated further on
“contemporary attitudes” and in the process reviewed
relevant earlier cases:
In addition, we must be mindful of ever-changing
social attitudes and sensitivities. Today's
scandal can be tomorrow's vogue. Proof abounds
in nearly every quarter, with the news and
entertainment media today vividly portraying
degrees of violence and sexual activity that,
while popular today, would have left the average
audience of a generation ago aghast. To
appreciate the extreme changes in social mores
over time, one need only glance at a historical
survey of Board decisions regarding refusals to
register marks containing particular words deemed
scandalous. Compare In re Old Glory Condom
Corp., 26 USPQ2d 1216 (TTAB 1993) (OLD GLORY
CONDOM CORP, with stars and stripes design on
condoms suggesting the American flag, not
scandalous); In re In Over Our Heads Inc., 16
USPQ2d 1653 (TTAB 1990) (MOONIES on dolls, whose
pants can be dropped to expose their buttocks,
not scandalous); In re Hershey, 6 USPQ2d 1470
(TTAB 1988) (BIG PECKER BRAND on T-shirts not
scandalous); In re Leo Quan Inc., 200 USPQ 370
(TTAB 1978) (BADASS for bridges of stringed
musical instruments not scandalous); In re
Madsen, 180 USPQ 334 (TTAB 1973) (WEEK-END SEX on
magazines not scandalous); In re Hepperle, 175
USPQ 512 (TTAB 1972) (ACAPULCO GOLD on suntan
lotion not scandalous); Ex parte Parfum L'Orle,
Inc., 93 USPQ 481 (Pat. Off. Exam'r-Chief 1952)
(LIBIDO on perfumes not scandalous) with In re
Serial No. 78690531
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Tinseltown, Inc., 212 USPQ 863 (TTAB 1981)
(BULLSHIT on personal accessories scandalous); In
re Runsdorf , 171 USPQ 443 (TTAB 1971) (BUBBY
TRAP for brassieres scandalous); In re Sociedade
Agricola E. Comerical Dos Vinhos Messias,
S.A.R.L., 159 USPQ 275 (TTAB 1968) (MESSIAS on
wine and brandy scandalous); In re Reemtsma
Cigarettenfabriken G.m.b.H., 122 USPQ 339 (TTAB
1959) (SENUSSI on cigarettes scandalous); In re
P.J. Valckenberg, GmbH, 122 USPQ 334 (TTAB 1959)
(MADONNA on wine scandalous); Ex parte Summit
Brass & Bronze Works, Inc., 59 USPQ 22 (TTAB
1943) (AGNUS DEI on metallic tabernacle safes
scandalous); In re Riverbank Canning Co., 95 F.2d
327, 37 USPQ 268 (CCPA 1938) (MADONNA on wine
scandalous); Ex parte Martha Maid Mfg. Co., 37
USPQ 156 (Comm'r Pats. 1938) (QUEEN MARY on
women's underwear scandalous).
Id. at 1926.
In Mavety the Federal Circuit ultimately concluded
that the Board erred in concluding that the BLACK TAIL mark
for “adult entertainment magazines” was scandalous. In
that case BLACK was disclaimed and the USPTO finding that
the mark was scandalous was based on a single dictionary
definition of “tail” as “SEXUAL INTERCOURSE – usu.
considered vulgar.”2 Id. at 1924. The Federal Circuit
found the USPTO’s evidence insufficient to sustain the
Section 2(a) refusal in view of alternative definitions of
“tail” as “buttocks or the hindmost or rear end” in the
2 The Court also noted that the Board took judicial notice of six
additional sources, including four slang dictionaries, which
referenced the vulgar meaning, but that the Board stated that it
would affirm based on the single definition the Examining
Attorney had provided. Mavety, 31 USPQ2d at 1924.
Serial No. 78690531
6
context of adult entertainment magazines. Id. at 1927.
The Court viewed the alternative meaning as not vulgar or
scandalous.
For completeness we also note here the principal,
precedential “scandalous” cases under Section 2(a)
following Mavety: In re Boulevard Entertainment Inc., 334
F.3d 1336, 67 USPQ2d 1475 (Fed. Cir. 2003) (1-800-JACK-OFF
and JACK-OFF for entertainment in the nature of adult-
oriented conversations by telephone held scandalous);
Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581
(TTAB 2008) (SEX ROD for clothing held scandalous); In re
Red Bull GmbH, 78 USPQ2d 1375 (TTAB 2006) (BULLSHIT for
various alcoholic and nonalcoholic beverages, including
energy drinks, and related services held scandalous); In re
Wilcher Corp., 40 USPQ2d 1929 (TTAB 1996) (DICK HEADS’ and
design for bar and restaurant services held scandalous).
The Arguments
The Examining Attorney argues as follows:
… the continually evolving meaning of the term
“pussy” has come to mean something more, (sic)
than merely a cat, or a catkin, a pus wound, or
even that of a weak and cowardly male. In
today’s attitudes and mind set, the term “pussy”
is used in a most offensive and vulgar manner.
Specifically, the term “pussy” refers to female
genitalia, desire for sexual intercourse with
women and ultimately women as sexual objects.”
Examining Attorney’s Brief at 3.
Serial No. 78690531
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On the other hand, Applicant argues, “Applicant
respectfully submits that its mark is not scandalous on the
grounds that (1) the mark is not obscene under its ordinary
meaning; (2) the general public does not perceive the mark
to be scandalous; and (3) any ambiguity as to the meaning
of the mark must be construed in favor of the Applicant.”
Applicant’s Brief at 5. In this regard, Applicant argues
that the Examining Attorney has failed to meet the burden
of showing that the entire mark is scandalous and that the
Examining Attorney has disregarded “… the numerous common
meanings [of PUSSY] that are not scandalous or vulgar.”
Id. at 7.
Applicant continues, “While it may be a slang term for
female genitalia, this meaning clearly does not apply to
Applicant’s all natural energy drinks, whether explicitly
or implicitly. At best, the term is a double entendre that
has been used for more over (sic) 100 years.” Id.
In his reply brief Applicant argues further that we
must look at his mark in its entirety, stating, “Nothing
about this design is suggestive of female genitalia.”
Applicant’s Reply Brief at 3. Applicant argues further
that the packaging for the product likewise supports his
position, stating, “The overall look of the packaging is
Serial No. 78690531
8
elegant and tasteful….” Id. Applicant argues again that
the Examining Attorney has failed to give proper
consideration to other, non-vulgar meanings of PUSSY.
Applicant argues, “… the Examining Attorney suggests that
this term [PUSSY] has recently evolved such that any use of
the term necessarily references female genitalia or desire
for sexual intercourse with women. This position is not
supported by fact or law.” Id. at 4. In addition,
Applicant asserts that the Examining Attorney has failed to
“… demonstrate how Applicant’s mark is scandalous as
perceived in the relevant marketplace as applied to
Applicant’s all natural energy drink.” Id.
The Evidence
Under Section 2(a), the Examining Attorney bears the
initial burden of establishing that the mark in question is
scandalous to a substantial composite of the general
public. In re Boulevard Entertainment Inc., 67 USPQ2d at
1480; Mavety, 31 USPQ2d at 1925. See also In re Squaw
Valley Development Co., 80 USPQ2d 1264, 1271 (TTAB 2006)
(SQUAW and SQUAW ONE for clothing and accessories and
related retail store services held disparaging of Native
Americans under Section 2(a); applicant failed to rebut
USPTO’s prima facie case).
Serial No. 78690531
9
Dictionaries
Both the Examining Attorney and Applicant have
presented dictionary evidence to support their respective
positions.
In Mavety, the Court of Appeals for the Federal
Circuit did not reach the ultimate question of whether a
dictionary definition, by itself, may suffice to establish
that a term is scandalous. However, in Boulevard
Entertainment, the Court did reach this issue and concluded
that, under limited circumstances, “… the PTO can sustain
its burden of showing that the mark comprises or consists
of scandalous matter by reference to dictionary definitions
alone.” Boulevard Entertainment, 31 USPQ2d at 1927. The
Court concluded that dictionary definitions would suffice
in the Boulevard Entertainment case, “… in which multiple
dictionaries, including at least one standard dictionary,
uniformly indicate that a word is vulgar, and the
applicant’s use of the word is clearly limited to the
vulgar meaning of the word.” Id.
In this case, the Examining Attorney provided evidence
from four online dictionaries, including at least one
standard dictionary. In relevant part, the definitions
follow:
Serial No. 78690531
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From m-w.com (Merriam-Webster Online Dictionary):
2pussy … 1 usually vulgar: vulva 2 a usually
vulgar: sexual intercourse b usually vulgar: the
female partner in sexual intercourse;
From dictionary.cambridge.org:
pussy (SEX) noun OFFENSIVE 1[C] a woman’s vagina
[2] sex with a woman
pussy (VAGINA) noun [CU] TABOO SLANG a woman’s
vagina or sex with a woman;
From rhymezone.com:
Definitions of pussy: ·noun obscene term for
female genitals ·noun informal term referring to
a cat ·adjective having undergone infection;
From allwords.com:
pussy 1. colloq. A cat Form: pussycat (also) 2a.
coarse slang The female genitals; the vulva 2b.
coarse slang Women collectively, especially when
considered sexually.
Examining Attorney’s Final Action of May 5, 2008.
In the appeal brief, which followed the final action,
Applicant takes issue with the Examining Attorney’s use of
these definitions arguing that the “… refusal focuses on
merely one of the many definitions of ‘pussy’.”
Applicant’s Brief at 5. To support his position Applicant
provided copies of the other definitions which appear in
the Merriam-Webster Online Dictionary:
1pussy noun 1 : CAT 2 : a catkin of the pussy
willow
Serial No. 78690531
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3pussy adjective : full of or resembling pus
4pussy noun : a weak or cowardly man or boy :
WIMP, SISSY.
Thus, Applicant has provided a more complete picture
of the meanings of PUSSY from the Merriam-Webster Online
Dictionary.3 It appears that the Examining Attorney was
somewhat selective in presenting the evidence from that
source. Taken as a whole, the dictionary evidence does
show that PUSSY possesses a vulgar, potentially scandalous,
meaning, as well as other meanings.4 Therefore, this is not
a case where we can rely on dictionary evidence alone to
conclude whether or not PUSSY is scandalous.
Other Evidence
The Examining Attorney has provided other types of
evidence to show that PUSSY is vulgar and scandalous in
this case. All of the Examining Attorney’s evidence
3 Neither Applicant nor the Examining Attorney provided any
evidence which explains the significance of the numerals in
superscript which precede each of the definitions. The
explanatory notes in Merriam-Webster’s Collegiate Dictionary (11th
ed. 2003) states: “HOMOGRAPHS - When one main entry has exactly
the same written form as another, the two are distinguished by
superscript numerals preceding the word. … The order of the
homographs is usually historical: the one first used in English
is entered first.” Accordingly, we cannot rely on the order or
numerals to determine which meaning, if any, is now dominant or
primary.
4 In this case, we find no reason to conclude that the vulgar
meanings in the definitions are outdated. Nor has Applicant
argued that they are.
Serial No. 78690531
12
discussed here is attached to the Examining Attorney’s
Final Action of May 5, 2008. Applicant also provided
evidence to counter the Examining Attorney’s evidence.
The Examining Attorney’s “Other” Evidence
First, the Examining Attorney presented evidence from
three searches in the NEXIS News data base for articles
where the term PUSSY appeared with either the term
offensive, obscene, coarse, taboo, vulgar, vulgarity or
crass. Many of the results have limited, if any, probative
value because the excerpts are too brief or too truncated,
and consequently lack sufficient context to understand the
significance of the uses. However, we note the following
examples which are probative:
Journal of Law and Education, October 2003: “…
the use of words such as ‘pussy’ and ‘cunt’ are
simply uncalled for and very offensive to many,
including me.”
Salt Lake Tribune (Utah) February 21, 2003:
“Georgia-based Nashville Pussy has one of the
most potentially offensive names to ever make
it…”
Phoenix New Times (Arizona) December 26, 2002:
“Nashville Pussy named itself after obscene stage
banter…”
Essence February 1999: “… my stepmother said to
me, crass as this may be, ‘How much pussy did he
take from you?’”
Serial No. 78690531
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Attachment to Examining Attorney’s Final Action of May 5,
2008. These excerpts show a public perception of the term
PUSSY as offensive.
The Examining Attorney also made of record copies of
excerpts from Internet sites obtained through a search
using the Google search engine for the term PUSSY and terms
such as “vulgar.” Some of the sites in question appear to
be related to “adult,” that is, sex-related interests or
businesses. The domain names for these sites provide
further confirmation of the nature of the sites, for
example, 4sexylinks.com and literotica.com. Id. We find
no need to recount the uses of PUSSY on these sites.
Suffice it to say, these sites demonstrate the common use
of the term PUSSY in its sexual sense in the world of adult
entertainment and adult businesses. Applicant does not
seriously dispute the existence of this usage.
The site foulmouthshirts.com features “offensive
shirts,” for example, t-shirts featuring messages, such as,
“Pussy, the breakfast of champions” and “PUSSY Tastes
Great. Less Filling.” These are arguably the two least
offensive of nearly twenty shirts where the term PUSSY is
used in this manner on an “offensive shirt.” Id. Again,
these capture the essence of the larger group, and we
decline to list more. This evidence also shows a
Serial No. 78690531
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perception of the use of the term PUSSY in “messaging” in
its vulgar sense and a characterization of that meaning as
foul or offensive. It is also worth noting that one of
these examples incorporates a reference to a slogan, Tastes
Great - Less Filling, which is associated with a beer, one
of the beverages identified in the application before us.
Another excerpt from lectlaw.com discusses “vulgar”
words which AOL might sanction on its service. The excerpt
states, “‘Pussy’ is warnable as vulgar when used as sexual
slang. The only time you wouldn’t warn for pussy is when
it is a cat reference.” Id. This too confirms the general
perception of the term PUSSY as vulgar.
An article from guardian.co.uk, a United Kingdom site,
entitled “Don’t be so beastly?” discusses the uses of the
term “pussy” over time up to recent times.5 It traces the
evolving meaning of the term from a term of endearment for
cats or women from earlier times into the 19th century, and
as a term in “tavern slang” for “sexual intercourse, female
genitalia and women.” As to the current meaning, the
5 The site appears to be from the United Kingdom. However,
because such sites are generally accessible to U.S. Internet
viewers, we conclude that it possesses some probative value. Cf.
In re Cell Therapeutics Inc., 67 USPQ2d 1795, 1798 (TTAB 2003).
It is also relevant here to weigh possibly differing perceptions
of the term in the United Kingdom versus the United States.
Serial No. 78690531
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article states, “The word has lost its power to shock, but
no one now is unworldly enough to call a cat a pussy
without a wry grin.” Id. This evidence may show a
somewhat more tolerant contemporary attitude toward the
vulgar use of PUSSY in the United Kingdom than in the
United States.
In similar fashion an excerpt from typepad.com
discusses the current use and meaning of the term PUSSY in
relation to the movie Austin Powers International Man of
Mystery. It states, “After all, it [the Austin Powers
film] does contain one of the more vulgar words in the
English language, pussy, which is slang for vagina.” Some
reader comments follow this article, some benign, but most
comments from women express extreme disapproval, for
example:
Wow that word is stupid and immature!
This word is sick really sick I mean if a guy
called me that I would go up to him and slap him
across the face…
I personally don’t like the word myself. My
sister gags when she hears it.
Ughhh I can’t stand this word. Can we please
just stick with saying vagina. Pussy sounds so
nasty…
It is so DISGUSTING!!!! That word makes me mad
when anybody uses it in front of me. It’s so
nasty.
I hate this word more than anything…
Serial No. 78690531
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Id. This evidence shows a visceral repulsion to the term
PUSSY and a clear sense that it is highly offensive to
these women, in particular.6
The Examining Attorney also provides a listing of
search results for the term “PUSSY” alone from the Google
search engine. The Examining Attorney argues, “… the first
90 hits are adult entertainment sites using the word
offensively to refer to women’s genitalia, sexual
intercourse and to denigrate women as sexual objects.”
Examining Attorney’s Appeal Brief at 8. We note that mere
listings of search results, such as this, generally have
limited probative value. In re International Business
Machines Corp., 81 USPQ2d 1677, 1679 n.3 (TTAB 2006).
However, in this instance the text provided is sufficient
for the limited purpose of supporting the Examining
Attorney’s position that the term PUSSY is frequently used
in the context of adult entertainment sites. Furthermore,
we have other evidentiary support in the record for this
proposition, as we noted above.
6 Another Board case applying the scandalous standard to the DICK
HEADS’ mark refers to evidence showing sensitivity to the use of
the term PUSSY or “the P word.” In re Wilcher Corp., 40 USPQ2d
at 1931 (“… I have never been taken to task for calling someone a
dickhead, but now I won't even call someone the feline P word
when chiding them for lack of bravery.”).
Serial No. 78690531
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We find the Examining Attorney’s evidence, both the
dictionary evidence and other evidence, more than
sufficient to meet the burden of showing that PUSSY is
offensive in the context of the goods identified in the
application before us from the standpoint of a substantial
composite of the general public and in view of contemporary
attitudes. Mavety, 31 USPQ2d at 1925-1926. Below, we
address the relevance of the vulgar meaning in the context
of Applicant’s goods more specifically.
We will proceed to consider whether Applicant’s
evidence is sufficient to overcome that showing.
Applicant’s “Other” Evidence
At the outset we note again that Applicant has
provided sufficient dictionary evidence to establish that
the term PUSSY has non-vulgar meanings.
In addition, Applicant has provided evidence that he
has registered the PUSSY NATURAL ENERGY mark in the United
Kingdom, Australia and the European Community, and that his
application for registration has been approved in Canada.
Of course, the fact that Applicant has succeeded in
registering his mark in other trademark offices has no
bearing on our determination as to whether Applicant’s
PUSSY NATURAL ENERGY mark is scandalous under Section 2(a).
In re Rath, 402 F.3d 1207, 74 USPQ2d 1174, 1179 (Fed. Cir.
Serial No. 78690531
18
2005) (“Thus, we conclude that while section 44(e), like
section 44(d), affects United States priority or prior use
rules, it is impossible to read section 44(e) to require
the registration of foreign marks that fail to meet United
States requirements for eligibility. Section 44
applications are subject to the section 2 bars to
registration….”).
We must determine whether Applicant’s mark meets the
standards for registration in the United States.
Accordingly, the evidence of registrations outside the
United States is not relevant here. Furthermore, it is
entirely possible that the term PUSSY may be perceived
differently in other English-speaking countries than in the
United States. Indeed, the limited evidence from
guardian.co.uk noted above suggests that conclusion.
However, it is the public perception of the term PUSSY in
the United States that is relevant to our analysis.
Applicant also argues, “‘Pussy’ was also the nickname
of Mr. Shearer’s [Applicant’s] grandmother, whose family
crest appears on the front of the can.” Applicant’s Brief
at 5-6. This fact is not probative of the public
perception of the term PUSSY in relation to the goods
identified in the application in the United States.
Accordingly, we find this argument unpersuasive. See In re
Serial No. 78690531
19
Red Bull GmbH, 78 USPQ2d at 1380 (Applicant’s claim that
its BULLSHIT mark would be perceived as a “… play on the
expression BULLS HIT, where a ‘Hit’ is a drink or, in some
parlance, an inhale or ingestion of some substance…”
rejected as unsupported).
Applicant also relies on an entry from the online
encyclopedia Wikipedia regarding the term PUSSY. The entry
addresses all of the potential meanings identified in the
dictionaries cited above; with regard to the potentially
vulgar meaning, in particular, the entry states:
Pussy is an English word meaning cat. It may
also refer to female genitalia, among other
definitions.
…
The word “pussy” often refers to the female
genitalia. Used in conjunction with “some”, the
phrase some pussy refers to sexual intercourse
itself. Most dictionaries mark the anatomical
meaning as “vulgar” or “offensive” and its use is
frowned upon in polite company.
Attachment to Applicant’s Response of February 11, 2008.
Wikipedia also discusses the use of the term PUSSY in
a double entendre which involves both the “cat” meaning and
the vulgar meaning by reference to several such uses in
literature and other forms of entertainment, including film
and television. In his argument, Applicant asserts that
Serial No. 78690531
20
these uses show that PUSSY is not scandalous. Applicant
states:
At best the term is a double entendre that has
been used for more (sic) over 100 years. See,
for example, the page on Wikipedia that describes
the use of “pussy” for double meanings, which
includes a late 19th century vaudeville act the
Barrison Sisters who performed the notorious
routine “Do You Want to See My Pussy?”; the
Funkadelic song “Pussy”; the character Pussy
Galore in the James Bond series; the 1983 film
(sic) James Bond Film, Octopussy; and the British
comedy Are You Being Served?, where the character
Mrs. Slocombe is often heard to be concerned with
the welfare of her pussy, presumably unaware of
the secondary meaning.
Applicant’s Brief at 7.
Applicant also uses the Wikipedia evidence to argue
that PUSSY is not scandalous based on more contemporary
uses in the arts and media:
Tellingly, the Wikipedia page discusses several
instances in which televised references to the
word “pussy” were not censored, including in
episodes of Arrested Development, Drawn Together
and South Park. Id. In all of these the term
was used as a double entendre which was not
considered obscene. Id. Indeed, “pussy” is not
among the seven words that George Carlin famously
pointed out are impermissible on TV.
Id. at 8. To clarify matters, we note that, in the case of
the Arrested Development example, the Wikipedia entry
states specifically, “… the word [pussy] was censored if
used as an insult, but not censored if used to mean sweet
Serial No. 78690531
21
or gentle (as in pussycat).” Attachment to Applicant’s
Response of February 11, 2008.
We find neither the evidence Applicant offers here,
nor the arguments based on that evidence, persuasive. We
reject the proposition that any word which has not been
censored or otherwise sanctioned when used in artistic
expression or entertainment must be regarded as not
scandalous. While the boundaries of what is scandalous
under Section 2(a) may be difficult to define, we reject
the notion that those boundaries are coextensive with the
boundaries of permissible, that is, uncensored, artistic
expression. Neither vaudeville nor South Park provide a
useful guide for applying Section 2(a). See In re Red Bull
GmbH, 78 USPQ2d at 1379-1380 (Board rejects argument based
on use of BULLSHIT in conjunction with Penn & Teller
performance).
Also, we reject Applicant’s assertion that his use of
the term PUSSY, like other uses of PUSSY in double
entendres, should be viewed as not scandalous. As we
noted, under Section 2(a) we must view Applicant’s mark as
it would be perceived as applied to the goods identified in
the application, alcoholic and nonalcoholic beverages,
including energy drinks.
Serial No. 78690531
22
We reject out of hand the argument that, in the
context of beverages, including natural energy drinks, the
public would view the term PUSSY as conveying a double
meaning. This case is distinguishable from the Hershey
case where the Board found a credible double entendre in
the BIG PECKER mark based on the display of a chicken with
a beak along with the BIG PECKER word mark in the specimen
of record. In re Hershey, 6 USPQ2d at 1470, 1472 (TTAB
1988).
In this case Applicant posits that his PUSSY NATURAL
ENERGY mark, when used on an energy drink, on the one hand
would suggest either a cat, a weak or cowardly man or boy,
a catkin of the pussy willow, or a pussy wound, and
simultaneously on the other hand, might suggest PUSSY in
the vulgar sense.
We do not find this proposition credible, nor has
Applicant provided any support for the proposition. We see
no double entendre in this context. We conclude so whether
we view the term PUSSY alone or as part of Applicant’s full
mark. Furthermore, there is nothing in the display of the
mark or the additional wording, “natural energy” which
affects the perception of the term PUSSY. Accordingly, we
reject Applicant’s double-entendre argument.
Serial No. 78690531
23
With his evidence Applicant has also submitted copies
of excerpts from trade journals which discuss the product
Applicant offers under the PUSSY NATURAL ENERGY mark in the
United Kingdom. Those excerpts include the following
statements regarding the product:
Pussy launched in the UK earlier in the summer,
and offers the drink market a unique product
whose name guarantees a certain playful element
drinkers will have fun with while also grabbing
the attention wherever it is sold. (HRM Drinks
News);
PUSSY POWER - … Jonnie Shearer, CEO and Founder
of Pussy Drinks said, “I knew I had a good
product. The challenge is to make people aware
of it. That is where our unique name comes in.”
(Class);
PUSSY DRINKS – As energy drinks go, Pussy is
definitely a cut above the rest. Aside from the
provocative name, which serves as a clever
marketing tool, two years of intense research and
100% natural ingredients have gone into making
this drink an exclusively posh energy drink.
(source not identified).
Attachments to Applicant’s Response of February 11, 2008.
This evidence reflects Applicant’s introduction of his
product and mark in the United Kingdom. Although these
excerpts often refer the reader to Applicant’s site at
pussydrinks.com, Applicant has not provided material
directly from that site.
Thus Applicant’s own evidence points to a single
meaning for PUSSY in this context, rather than any double
Serial No. 78690531
24
entendre. That single meaning is the one which is
attention grabbing, unique and provocative, the meaning
related to female genitalia and sexual intercourse, the
meaning which is both vulgar and scandalous in the United
States.
The Examining Attorney has provided additional
evidence which not only confirms that the term PUSSY is
vulgar, but evidence that the attention-grabbing meaning is
the only reasonable meaning to conclude the relevant public
would perceive in this context. An excerpt from
factexpert.com discusses the highly competitive marketing
of energy drinks, stating:
Energy drink packaging is more often flashy and
bright than subtle and understated. The primary
consumer group of energy drinks includes extreme
sports enthusiasts, young adults and teenagers,
and the hip-hop crowd. … Because this group is a
group excited by speed, energy, flash and instant
thrill, most energy drink packaging appeals to
these tastes.
Attachment to Final Office Action of May 5, 2008. In this
context, it is not reasonable to conclude that the relevant
public will perceive PUSSY as referring to a cat, a weak or
cowardly man or boy, a catkin of the pussy willow or a
pussy wound. The offensive, vulgar meaning is the only one
which makes sense in this context. Cf. In re Red Bull
GmbH, 78 USPQ2d 1375 (TTAB 2006) (BULLSHIT for various
Serial No. 78690531
25
alcoholic and nonalcoholic beverages, including energy
drinks, and related services held scandalous).
Applicant has also argued that he now offers his
products in high-end establishments without complaint.
Those establishments are all located in the United Kingdom.
Even if we assume that Applicant’s mark is not offensive in
that setting, this fact would have no bearing on our
determination here. We must consider the perception of
Applicant’s mark in the United States. Therefore, we
reject Applicant’s arguments based on the alleged
perception of his mark in other countries.
Applicant has also submitted four third-party U.S.
trademark registrations, two active and two canceled, for
marks consisting of the term PUSSY alone or with another
term. Applicant argues that these registrations indicate
that the term PUSSY is not scandalous. First, canceled
registrations have no probative value as evidence. Cf.
Temporary Services Inc. v. Labor Force Inc., 870 F.2d 1563,
10 USPQ2d 1307, 1309 (Fed. Cir. 1989). More importantly,
we must decide each case on the merits and on the record
before us. In Boulevard Entertainment, in disposing of
similar arguments based on prior registrations, the Court
stated, “In any event, the PTO must decide each application
on its own merits, and decisions regarding other
Serial No. 78690531
26
registrations do not bind either the agency or this court.
In re Nett Designs, 236 F.3d 1339, 1342 [57 USPQ2d 1564]
(Fed. Cir. 2001).” Boulevard Entertainment, 67 USPQ2d at
1480. Accordingly, we reject Applicant’s arguments based
on the third-party registrations.
In sum, we have considered all of the evidence offered
by Applicant and find it insufficient to overcome the
Examining Attorney’s evidence that the PUSSY NATURAL ENERGY
mark is scandalous. Contrary to Applicant’s argument, we
harbor no doubt in reaching this conclusion.
Conclusion
Finally, after considering all of the arguments and
evidence, including arguments and evidence we have not
specifically discussed here, we conclude that Applicant’s
PUSSY NATURAL ENERGY mark is offensive when viewed in the
context of the goods identified in the application from the
standpoint of a substantial composite of the general public
according to contemporary attitudes. Mavety, 31 USPQ2d at
1925-1926. The record, taken as a whole, shows that, in
the view of a substantial composite of the public, in
particular women, the term PUSSY currently has a vulgar,
offensive sexual meaning and that the offensive meaning is
the meaning which the relevant public will perceive as
Serial No. 78690531
27
applied to the beverage products identified in the
application, including energy drinks.
Decision: We affirm the refusal under Trademark Act
Section 2(a).
