Friggin Barnyard

Trademark Trial and Appeal Board

Mar 30, 1999

No. 75033653 (T.T.A.B. Mar. 30, 1999)

Paper No. 11
GDH/gdh
THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB MARCH 30,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Friggin Barnyard
________
Serial No. 75/033,653
_______
Stephen H. Block of Kahn & Block LLP for Friggin Barnyard.
Andrew Lawrence, Trademark Examining Attorney, Law Office 108
(David E. Shallant, Managing Attorney).
_______
Before Quinn, Hohein and Wendel, Administrative Trademark Judges.
Opinion by Hohein, Administrative Trademark Judge:
An application has been filed by Friggin Barnyard to
register the mark "FRIGGIN" and design, as reproduced below,
for "decorative refrigerator magnets".1

1 Ser. No. 75/033,653, filed on December 18, 1995, which alleges a
bona fide intention to use the mark in commerce.
Ser. No. 75/033,653
2
Registration has been finally refused under Section
2(a) of the Trademark Act, 15 U.S.C. §1052(a), on the ground that
applicant's mark constitutes immoral or scandalous matter.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We reverse the refusal to
register.
Applicant, noting among other things that the excerpt
which it has made of record from The Compact Edition of the
Oxford English Dictionary (1987) at 1162 lists the entry "fridge,
frig" as meaning "[c]olloq. abbrev. of REFRIGERATOR," argues that
the Examining Attorney, in light of such definition, has failed
to meet his "burden to prove that an applicant's mark consists of
or comprises immoral or scandalous matter". In particular,
applicant maintains that inasmuch as there is an "alternative,
non-vulgar meaning of applicant's mark -- an extension of the
word 'frig' meaning refrigerator -- [which] 'makes sense' because
the goods for which the mark is sought are, in fact, refrigerator
magnets," the mark is not scandalous or immoral and hence is
registrable. Applicant also insists that, "[a]lthough some
archaic definitions of frig are vulgar, the primary meaning of
the term among the general public is refrigerator -- particularly
as understood in the context of refrigerator related goods," and
that, given such ambiguity in its mark, the Board should
interpret any reasonable ambiguity "in favor of the unoffensive
[sic] meaning."

Ser. No. 75/033,653
3
The Examining Attorney, relying upon various dictionary
definitions and two articles obtained from his search of the
"NEXIS" database, contends on the other hand that because
applicant’s mark "is an abbreviated spelling of the term
’frigging’ and is slang for ’fucking’ or ’masturbating,’" the
mark is accordingly immoral or scandalous.2 Specifically, in
support of his position, the Examining Attorney points out that:
(1) Sexual Slang (1993) mentions "frig
v" as signifying "1. masturbate .... 2.
fuck. This is a 19th-century euphemism";
(2) Webster’s Ninth New Collegiate
Dictionary (1990) defines "frig \’frig\ vi
frigged; frigÂging" as meaning "COPULATE-
usu. considered vulgar; sometimes used in
present participle as meaningless intensive";
(3) The Random House Unabridged
Dictionary (2d ed. 1993) lists "frig1 (frig),
v.t., v.i., frigged, frigÂging" as connoting
"[s]lang (vulgar). -v.t. 1. to copulate
with. 2. to take advantage of; victimize.
3. to masturbate. -v.i. 4. to copulate. 5.
to masturbate ...." and refers to "frig2
(frij), n." as signifying "Informal.
refrigerator"; and
(4) The Oxford English Dictionary (2d
ed. 1989) sets forth "frig (frig), v. Also
frigg" as meaning, inter alia, "3. Freq. used
with euphemistic force. a. trans. and intr. =
FUCK ... b. To masturbate ... c. fig. Also
used as a coarse expletive. Cf. FUCK" and
additionally lists "frig" by reference to
"see FRIDGE."

2 While the Examining Attorney "urges the Board to rule that the
applicant’s mark is immoral" as well as scandalous, it is clear from
his brief that in resting his argument on principles which he
"submits are moral in nature, [and which] proscribe the use of ...
vulgar sexual terminology," the Examining Attorney is actually
grounding his arguments solely on the basis that applicant’s mark is
scandalous. In view, thereof, we need only decide whether
applicant’s mark is scandalous as such term has been judicially
interpreted.
Ser. No. 75/033,653
4
The Examining Attorney also notes that a search of the "NEXIS"
database retrieved the following excerpts (emphasis added):3
"Order of Cooties members say Mrs.
Boozer has disrupted several meetings of both
the order and the VFW Women’s Auxiliary with
drunkenness and foul language. Several
members said she used the expression
’friggin’ bitches’ at the January meeting."
-- Wilmington Star-News, March 9, 1996; and
"A kindergartner stuck his or her tongue
out at a driver. A-third grader called a
driver a ’friggin’ witch.’ Another student
used a much more foul term." -- Allentown
Morning Call, (July 11, 1994).
In view of the above, the Examining Attorney maintains
that, while tribunals in other circumstances "have found that
non-vulgar meanings either might outweigh the vulgar meanings or
that their varied meanings pointed towards resolving any doubts
in an applicant’s favor," the present appeal involves a situation
in which the vulgar significance of applicant’s mark is "the only
meaningful one". Although conceding that the record shows that
"’frig’ alone, but not ’frigging,’ is an informal word for

3 Although asserting that such evidence "demonstrates that the word
’FRIGGIN’ is vulgar and is not a reference to a household appliance,"
the Examining Attorney explains in his brief that "there is limited
evidence from the Nexis database ... since this database is comprised
in large part of news articles for wide circulation and ... vulgar
terms are not likely to make it past the editors of the journals and
then into the database." It would seem, however, that a more
credible reason as to why only a few references to the term "friggin"
or "frigging" were located is the fact that the Examining Attorney
used the exceedingly restrictive search request "(FRIGGIN OR
FRIGGING) W/15 (OFFENSIVE! OR SCANDAL! OR FOUL OR SWEAR)". Moreover,
even though such search found 12 stories, the Examining Attorney
elected to submit only the above two for the record. We recognize,
of course, that while the Examining Attorney was trying to establish
the offensiveness of the term "FRIGGIN" in applicant’s mark, a
broader search (e.g., "FRIGGIN OR FRIGGING") would undoubtedly have
been more meaningful in this case since it would have revealed the
frequency and context in which such term is currently used in the
mass media.
Ser. No. 75/033,653
5
’refrigerator,’" the Examining Attorney argues that the record
"confirm[s] that ’frigging’ is nothing more than a form of the
word ’frig’ and that the latter is itself a vulgar term." Since
the literal element of applicant’s mark, "FRIGGIN," is merely a
shortened form of the term "frigging,"4 the Examining Attorney
insists that the mark is scandalous, asserting that:
It almost goes without saying that
despite changes in the morals of Americans,
there are still terms that are deemed
indecent, disgraceful, offensive or
disreputable. Not every term or saying that,
in bygone days, would be used only in limited
circles and then uttered quietly or with
great hesitation, is freely accepted by every
person. While some people may use the word
"frigging," or other highly offensive terms,
intending to provide humor, such usage does
not negate the fact that a substantial
composite of the general public would find
the mark to be scandalous. As the Board has
stated in a similar situation, "the fact that
profane words may be uttered more freely does
not render them any the less profane." In re
Tinseltown, Inc., 212 USPQ 863, 868 (TTAB
1981) (considering the registration of the
term "bullshit"). ....
Furthermore, as to the contention that, when used in
connection with decorative refrigerator magnets, the term
"FRIGGIN" in applicant’s mark "will be seen as a reference to
’refrigerator,’ a reference which the applicant identifies as
’refrigeratoresque’" and, hence, a double entendre, the Examining
Attorney states that "he has examined several dictionaries and

4 In addition to noting that the oval design in applicant’s mark "has
no effect on the meaning of the ... mark and [that] the applicant has
never argued that it did," the Examining Attorney points out "that
[t]he spelling ’-in’ at the end of a word is a common and well
understood misspelling of ’-ing’ representing the situation where the
"g" sound at the end is de-emphasized in actual pronunciation."
Applicant, we observe, does not contend to the contrary.
Ser. No. 75/033,653
6
can find no evidence that there is any such word as
’refrigeratoring.’" Thus, according to the Examining Attorney
(footnote omitted):
This leads to the conclusion that if
"figging" means anything at all, its meaning
is associated with and derived from the other
meaning of "frig." That meaning, with which
the applicant has not disagreed, is "fucking"
or "masturbating"." There is no indication
that these meanings are obscure or archaic.
....
....
[T]he evidence ... demonstrates that the
applicant’s mark is only a vulgar term. It
is just as vulgar when used on a refrigerator
magnet as it is anywhere else because it has
only a vulgar meaning. .... The applicant’s
suggestion that the mark is a reference to
... "refrigerator" is made less persuasive by
the pronunciation of "frigging" and "frig".
The use attributed to [the meaning of] a
refrigerator ends in a soft "g" sound like
the letter "j." The vulgar meaning of
"frig," and the meaning of "FRIGGIN," have a
hard "g" sound as in the word "frog." As a
result, anyone seeing the applicant’s mark,
on a magnet or otherwise, would be directed
to the vulgar meaning by its very
pronunciation. ....
We agree with the Examining Attorney’s reasoning that,
even when viewed in the context of applicant’s goods, the
assertion that the term "’FRIGGIN’ means or is a reference to
’refrigerator’ is strained and fails to take full consideration
of the evidence". Nevertheless, we are constrained to agree with
applicant that the Examining Attorney has failed to satisfy his
burden of proof. As the Board pointed out in In re Wilcher
Corp., 40 USPQ2d 1929, 1930 (TTAB 1996) (footnotes omitted):

Ser. No. 75/033,653
7
In the recent case of In re Mavety Media
Group Ltd., 33 F.3d 1367, 31 USPQ2d 1923
(Fed. Cir. 1994), our primary reviewing
court, the Court of Appeals for the Federal
Circuit, recounted certain principles
governing a refusal to register, under
Section 2(a) of the Act, on the ground that
the applicant’s mark consists of or comprises
immoral or scandalous matter. Specifically,
the Court noted that (1) the Patent and
Trademark Office ("PTO") has the burden of
proving that a mark consists of or comprises
immoral or scandalous matter; (2) that in
order to meet this burden of proof, 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" (quoting from In re Riverbank
Canning Co., 95 F.2d 327, 328, 37 USPQ 268,
269 (CCPA 1938)); (3) that the question of
whether a mark is immoral or scandalous must
be determined by considering the mark in the
context of the marketplace as applied to the
goods specified in the applicant’s
application; and (4) that whether a mark,
including innuendo, comprises scandalous
matter is to be ascertained from "the
standpoint of not necessarily a majority, but
a substantial composite of the general
public," (quoting from In re McGinley, 660
F.2d 481, 485, 211 USPQ 668, 673 (CCPA 1981))
and "in the context of contemporary
attitudes" (quoting from In re Old Glory
Condom Corp., 26 USPQ2d 1216, 1219 (TTAB
1993)).
The Board in Wilcher, supra, further noted that, as stated by the
Federal Circuit in Mavety:
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. ....
31 USPQ2d at 1926.
Ser. No. 75/033,653
8
While, in the present case, some of the definitions
indicate that the terms "frig" and, in particular, "frigging" are
regarded as vulgar slang (or are usually considered so), another
definition of record states that such terms are "19th-century
euphemisms". As to the current meaning of such terms to a
substantial composite of the general public, which would
constitute the principal purchasers of applicant’s goods, we take
judicial notice that:5
(1) The Oxford Dictionary & Thesaurus
(1996) sets forth "frig1 /frig/ v. & n.
coarse slang  v. (frigged, frigging)" as
meaning, among other things, "1 a tr. & intr.
Have sexual intercourse (with). b masturbate.
2. tr. (usu. as an exclamation) = FUCK" and
also lists "frig2 /frij/ n. colloq." as
signifying "REFRIGERATOR. [abbr.]";
(2) NTC’s Dictionary of American Slang &
Colloquial Expressions (2d ed. 1995) defines
"frigging" as specifically meaning "1. mod.
Damnable. (A euphemism for fucking.) U Who
made this frigging mess? U I smashed up my
frigging car! 2. mod. Damnably. U What a
frigging stupid thing to do! U That is a
dumb frigging thing to do!";
(3) The Random House Historical
Dictionary of American Slang (1994) lists
"frig n." as connoting, inter alia, "2. an
act of copulation.--usu. considered vulgar.
.... 3. a damn; FUCK, n., 3.a.--usu.
considered vulgar. .... 4. (a euphem. for)
the fuck ...."; "frig v." as referring to,
among other things, "2.a. to copulate;
(trans.) to copulate with.--usu. considered

5 It is settled that the Board may properly take judicial notice of
dictionary definitions and information in technical reference works.
See, e.g., In re Hartop & Brandes, 311 F.2d 249, 135 USPQ 419, 423
(CCPA 1962); Hancock v. American Steel & Wire Co. of New Jersey, 203
F.2d 737, 97 USPQ 330, 332 (CCPA 1953); and University of Notre Dame
du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594, 596
(TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser. No. 75/033,653
9
vulgar. .... b. (used as an expletive);
SCREW; to damn; (hence) to disregard
utterly.--usu. considered vulgar. [Now
regarded as a partial euphem. for FUCK, v.,
3.a.] .... c. to cheat.--usu. considered
vulgar. [Regarded as a partial euphem. for
FUCK, v., 2.a.] .... 3. to trifle or fool
around.--in U.S. now constr. with with or
around.--usu. considered vulgar. [Now usu.
considered a euphem. for FUCK, v., 5]"; and
"frigging adj. & adv." as signifying
"contemptible or despicable; damned; (often
used with reduced force as a mere
intensifier).--usu. considered vulgar. Also
as infix. [Perh. orig. abstracted and
generalized from opprobrious literal
collocations such as frigging youngster,
frigging madman, etc.; now usu. regarded as a
euphem. for FUCKING, q.v.]";
(4) The Oxford Dictionary of Modern
Slang (1992) mentions "frig" as meaning,
inter alia, "mainly euphemistic. verb 1
trans. and intr. a = FUCK .... .... noun 3
= FUCK" and additionally lists "frigging" as
connoting "adjective and adverb mainly
euphemistic = FUCKING ....";
(5) Forbidden American English (1990)
defines "frig [frig]" as signifying "1. To
copulate [with] someone. (... see note 31.
More at frigging.)" and specifically defines
"frigging [’figin]" as meaning "damn;
damnable. (A euphemism for fucking. See note
31.) U Get your frigging feet off my chair!
U I’m tired of this frigging job! I quit!"
(with usage "note 31" indicating that such
terms are listed as "expressions in this
dictionary that are forbidden because of what
they refer to, not necessarily because the
particular words used in the expression are
taboo. That is, all the expressions ...
refer to forbidden topics or subjects"); and
(6) Thesaurus of American Slang (1989)
sets forth "frig" as one of many terms and
phrases meaning "fuck".
Inasmuch as some--although by no means all--of the
above definitions indicate that the word "frig," and especially
Ser. No. 75/033,653
10
the term "frigging," are often considered or understood in
contemporary society as euphemisms for certain words which, while
in common use, are clearly still regarded as vulgar or offensive
even under today’s more permissive standards, we have doubt as to
whether a substantial composite of the purchasing public for
applicant’s decorative refrigerator magnets would regard the mark
"FRIGGIN"--which plainly is short for the term "frigging"--as
scandalous. As was similarly the case in Mavety, there are
definitions of such term in which it is invariably considered to
be vulgar as well as definitions in which it is usually regarded
to be inoffensive.6 Clearly, in light thereof, it is at least
reasonably debatable--and certainly not definitive--as to whether
applicant’s mark would be acceptable, or at least inoffensive, to
most people, or whether to at least a substantial composite
thereof it would be shockingly indecent or disgraceful.
Moreover, what other limited evidence which we have in this
record, namely, two "NEXIS" excerpts of stories from family
newspapers (and not from so-called "adult" or sexually oriented
publications), suggests by the very fact that such articles

6 The Federal Circuit pointed out in Mavety that a lack of uniformity
in dictionary definitions "tellingly highlights the inherent
fallibility in defining the substantial composite of the general
public based solely on dictionary references" and that:
While a standard dictionary may indicate how the
substantial composite of the general public defines a
particular word, the accompanying editorial label of
vulgar usage is an arguably less accurate reflection of
whether the substantial composite considers the word
scandalous. Such labels are subject not only to
differences in opinion among the respective publication
staffs of particular dictionaries, but also to the
potential anachronism of those opinions.
31 USPQ2d at 1927.
Ser. No. 75/033,653
11
appeared therein that use of the term "friggin" is in general not
likely to be presently viewed as vulgar, highly indecent or
otherwise offensive.
Recognizing, therefore, the difficulties in accurately
discerning contemporary attitudes, our principal reviewing court
in Mavety commended "the practice adopted by the Board in another
case to resolve the issue whether a mark comprises scandalous
matter under § 1052(a) 'in favor of [the] applicant and pass the
mark for publication with the knowledge that if a group does find
the mark to be scandalous ..., an opposition proceeding can be
brought and a more complete record can be established," citing In
re In Over Our Heads Inc., 16 USPQ2d 1653, 1654-55 (TTAB 1990).
31 USPQ2d at 1928. And, although dicta, the Federal Circuit,
citing Mavety, recently affirmed such an approach, stating that:
By so doing, the PTO avoids the risk of pre-
judging public attitudes toward a proposed
registration based on ad hoc responses by
government officials, while at the same time
affording the affected public an opportunity
to effectively participate in the question of
whether the registration is proper. See id.
at 1374, 31 USPQ2d at 1928. Thus, the policy
behind the procedure for determining whether
a mark is scandalous encourages, if not
requires, participation by members of the
general public who seek to participate
through opposition proceedings.
Ritchie v. Simpson, No. 97-1371, slip op. at 3, 1999 U.S. App.
LEXIS 4153 *4, ___ F.3d ___, ___ (Fed. Cir. March 15, 1999).
Accordingly, since the dictionary definitions are not
uniform and the "NEXIS" evidence creates further doubt as to
whether a substantial composite of the purchasing public for
decorative refrigerator magnets would regard the term "friggin"
Ser. No. 75/033,653
12
as disgraceful, shockingly indecent or otherwise offensive, we
find that the Examining Attorney has failed to meet the burden of
showing that applicant’s "FRIGGIN" mark is scandalous.
Decision: The refusal under Section 2(a) is reversed.
T. J. Quinn
G. D. Hohein
H. R. Wendel
Administrative Trademark Judges,
Trademark Trial and Appeal Board