Red BullGmbH

Trademark Trial and Appeal Board

Feb 15, 2006

No. 75788830 (T.T.A.B. Feb. 15, 2006)

Mailed: February 15, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Red Bull GmbH
________

Serial No. 75788830
_______

Martin R. Greenstein of TechMark for Red Bull GmbH.

Esther Borsuk, Trademark Examining Attorney, Law Office 112
(Janice O’Lear, Managing Attorney).
_______

Before Hairston, Walters and Zervas, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

An application has been filed by Red Bull GmbH to
register on the Principal Register the mark BULLSHIT,1 in
standard character form, for the following goods and
services:

1 Serial No. 75788830, filed August 30, 1999, asserting ownership
of an Austrian Registration, No. 180322, under Section 44(e) of
the Trademark Act, and alleging a bona fide intention to use the
mark in commerce, under Section 1(b) of the Trademark Act.

THIS DECISION IS
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75788830
2
International Class 32: beer, mineral waters,
aerated waters, carbonated waters, flavored
waters and other non-alcoholic beverages, namely,
punches, soft drinks, smoothies and lemonades;
sports drinks; energy drinks; isotonic drinks,
hypertonic drinks and hypotonic drinks, for use
and/or as required by athletes and those engaged
in active or stressful sports and activities;
fruit juices and fruit drinks, vegetable juices
and vegetable drinks; syrups, powders,
concentrates and effervescent tablets for making
drinks and beverages; non-alcoholic cocktails and
drinks;

International Class 33: alcoholic beverages,
excluding beers, namely rum, vodka, gin, tequila,
whiskey, brandy spirits, distilled spirits and
wine; alcoholic hot and mixed beverages, namely,
alcoholic punches and energy drinks, mulled wine
and alcoholic ciders; wines, potable spirits and
liqueur; alcoholic beverage mixes, namely pre-
mixed cocktail bases, powders, syrups,
concentrates and effervescent tablets for making
alcoholic cocktails; cocktails and aperitifs
containing potable spirits or wine; wine cooler
beverages, alcoholic lemonades, fruit drinks and
smoothies, wine punches and wine cocktails; and

International Class 42: catering; accommodation
of guests, namely hotel and lodging services;
restaurant and bar services, namely operation of
bars, pubs, cafes, taverns and other permanent,
temporary, portable or mobile establishments
serving beer, wine and/or alcoholic or non-
alcoholic beverages; restaurant and bar services,
namely operation of snack bars, restaurants,
diners, cafes and other permanent, temporary,
portable or mobile establishments serving food,
beverages and/or snacks of all types; medical
services, namely, medical care; health care;
beauty salon services, namely beauty care and
personal grooming services; veterinary services;
scientific and research services; licensing of
intellectual property and consultation in the
field of intellectual property rights; technical
consultation and research services in the field
of food and beverages, restaurants and bar
Serial No. 75788830
3
services, health and fitness, sports, sports
training and physical performance; computer
programming, namely development, maintenance and
support of computer programs; providing
facilities for exhibitions and fairs.

The trademark examining attorney has issued a final
refusal to register under Section 2(a) of the Trademark Act
on the ground that the mark consists of or comprises
immoral or scandalous matter because it is offensive to a
substantial composite of the general public.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested. We affirm the refusal
to register.
Preliminary Evidentiary Issues
Neither of the two examining attorneys assigned to
this application submitted any evidence during examination
of the application. Instead, both the original and present
examining attorneys relied entirely on the 1981 decision of
the Board in In re Tinseltown, Inc., 212 USPQ 863, wherein
the Board found the mark BULLSHIT to be scandalous in
connection with handbags and personal accessories.
However, with her brief, the examining attorney submitted
several dictionary definitions of the term “bullshit” in
support of her position.
Applicant objects to the Board’s taking judicial
notice of the definitions submitted with the examining
Serial No. 75788830
4
attorney’s brief, arguing that the submissions are
untimely. Applicant’s other objections to this evidence
address the probative value thereof rather than its
admissibility and, thus, these objections are considered as
argument, as appropriate, in the analysis of the refusal,
supra.
The definitions of the term “bullshit” submitted by
the examining attorney with her brief are shown below:
1. Obscene. noun Abbr. B.S. Foolish, insolent
talk; nonsense. verb intransitive 1. To
speak foolishly or insolently. 2. To
engage in idle conversation. verb
transitive To attempt to mislead or deceive
by talking nonsense. interjection Used to
express extreme displeasure or exasperation.
The American Heritage Dictionary of the
English Language, 1992.

2. Noun: 1. Vulgar Slang Foolish, deceitful, or
boastful language. 2. Something worthless,
deceptive, or insincere. 3. Insolent talk
or behavior. [additional forms same as above
definition]
The American Heritage Dictionary of the
English Language, 2000 (www.bartleby.com,
May 16, 2005).

3. Noun, usually vulgar: NONSENSE:
especially: foolish insolent talk.
Merriam-Webster Dictionary Online (www.m-
w.com, May 16, 2005).

4. Noun. A taboo term for talk or writing
dismissed as foolish or inaccurate (slang
taboo). Transitive and intransitive verb.
1. a taboo term meaning to say things that
are completely untrue or very foolish 2. a
taboo term meaning to try to intimidate,
Serial No. 75788830
5
deceive, or persuade somebody with deceitful
or foolish talk.
Encarta Dictionary, 2005 (www.msn.com, May
16, 2005).2

5. n. nonsense, lies, or exaggeration. v.t.
to lie or exaggerate to. v.i. to speak
lies or nonsense. interj. Slang (vulgar)
(used esp. to express disagreement)
Random House Unabridged Dictionary, 1997
(www.infoplease.com, May 16, 2005).

6. Noun, exclamation, RUDE SLANG – a lie or
nonsense. Verb, RUDE SLANG – to tell lies
to (someone), esp. with the intention of
persuading them of something.
Cambridge Dictionary of American English
(www.dictionary.cambridge.org, May 16,
2005).

7. Noun – 1. (vulgar slang) lies,
exaggerations, boasts, or the like.
Transitive verb – 1. to lie, exaggerate, or
boast to. Intransitive verb – 1. to speak
lies or boast; 2. to talk idly.
Interjection – 1. used to express disbelief,
disgust, or the like.
(www.wordsmyth.net, May 16, 2005).

As a general rule, the Board may take judicial notice
of dictionary evidence. University of Notre Dame du Lac v.
J. C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982),
aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). See
also TBMP §704.12. The Board has a long history of taking
judicial notice of definitions excerpted from print
dictionaries and submitted after appeal.

2 Additionally, this excerpt included the following statement
entitled “Language Advisory: The dictionary entry you requested
contains language that may be considered offensive.”

Serial No. 75788830
6
Thus, we readily take judicial notice of definition
no. 1 listed above, which is from the print version of the
noted dictionary. Applicant further objects to this
definition, which is recited at pp. 3-4 of the examining
attorney’s brief, arguing that it is available only
electronically after purchase of a license and, thus,
cannot be accessed by applicant. We deny the objection on
this ground because, as noted, this definition is from the
1992 print edition of The American Heritage Dictionary of
the English Language (noted supra).
Considering applicant’s objection to the additional
definitions obtained via the Internet, we find the Board’s
decisions in In re Total Quality Group Inc., 51 USPQ2d 1474
(TTAB 1999) and In re Cyberfinancial.net, Inc., 65 USPQ2d
1789 (TTAB 2002), to be particularly relevant.3 In Total
Quality Group, the Board stated its reluctance to take
judicial notice of an online dictionary definition that the
examining attorney specifically acknowledged did not exist
in printed format and which was not submitted until after
commencement of the appeal. In Cyberfinancial.net, the

3 Raccioppi v. Apogee Inc., 47 USPQ2d 1368 (TTAB 1998) [in
connection with a motion for summary judgment, printouts of
articles downloaded from the Internet may be authenticated and
introduced as evidence by means of a declaration of the person
who downloaded the information] is a Board decision discussing
authentication in an inter partes proceeding of certain evidence
obtained via the Internet.
Serial No. 75788830
7
Board took judicial notice of definitions attached to the
examining attorney’s appeal brief, expressly acknowledging
that one of the definitions was from an online resource and
noting that “as indicated in the Web page printout, the
Cambridge International Dictionary of English is available
in book form.”
Considering applicant’s objections to the definitions
obtained electronically and submitted by the examining
attorney with her brief, we deny applicant’s objection to
definition nos. 2 - 6 (above) and take judicial notice
thereof because the sources of the definitions are clearly
identified even though the excerpts were downloaded from
the noted Internet websites.4 As in Cyberfinancial.net, the
sources of definition nos. 2, 3, 5 and 6 are readily
verifiable and reliable, widely-available print
publications. The source of definition no. 4 is the
Encarta Dictionary and, while it may not be available as a
print publication, it is a widely-known reference that is
readily available in specifically denoted editions via the
Internet and CD-Rom. Thus, it is the electronic equivalent
of a print publication and applicant may easily verify the
excerpt. For this reason, we find it is acceptable
Serial No. 75788830
8
material for judicial notice even though the excerpt was
submitted with the examining attorney’s appeal brief.
We do not, however, take judicial notice of definition
no. 7, which is excerpted from www.wordsmyth.net. The
source of the definition quoted at the website is not
identified on the submitted website excerpt or by the
examining attorney and, thus, we can not verify it or
determine its reliability. See In re Total Quality Group
Inc., supra.
Arguments

The examining attorney summarized her argument against
registration as follows (brief pp. 3-4):
In re Tinseltown, Inc., 212 USPQ 863 (TTAB 1981)
is directly on point. The Trademark Trial and
Appeal Board found that the word BULLSHIT is
scandalous and denied registration. It stated
that “the fact that profane words may be uttered
more freely in contemporary American society than
was done in the past does not render such words
any less profane.” [id.] (BULLSHIT found
scandalous for "accessories of a personal nature,
and wearing apparel, namely: attaché cases,
handbags, purses, belts, and wallets.")
. . .
Despite applicant’s contention that the term is
no longer offensive, these dictionary definitions
[submitted with the brief] clearly indicate that
the term is still considered scandalous in
today’s society. Therefore, In re Tinseltown is
still pertinent.

4 The preferable procedure would have been, of course, for the
definitions and arguments in connection therewith to have been
submitted during examination.

Serial No. 75788830
9
In support of its position, applicant submitted the
following definition of “bullshit” from WordNet 1.6
(Princeton University 1997)5 prior to appeal:
n: a ludicrously false statement [syn: bull,
Irish bull, horseshit, shit, crap, bunk, bunkum,
guff, rot, hogwash, dogshit] v: talk through
one’s hat [syn: waffle, bull, fake].

To supplement and clarify the above-quoted evidence
submitted by applicant, we also take judicial notice of the
definition of “bullshit” from the current edition (2.0) of
Wordnet, available at www.wordnet.princeton.edu (January 3,
2006):
(n) bullshit, bull, Irish bull, horseshit, shit,
crap, dogshit (obscene words for unacceptable
behavior) "I put up with a lot of bullshit from
that jerk"; "what he said was mostly bull"
(v) bullshit, bull, fake (talk through one's hat)
"The politician was not well prepared for the
debate and faked it."

Additionally, applicant submitted a copy of an essay
entitled “On Bullshit” by Harry Frankfurt, a professor of
philosophy at Princeton University.6 The essay is
essentially a philosophical discourse, with often humorous

5 Because it was submitted prior to appeal, we have considered
this dictionary evidence that is available both for viewing and
for download only online.

6 Applicant states the essay is published at pp. 117-133 in a
book by the same author entitled The Importance of What We Care
About (Cambridge University Press 1989).

Serial No. 75788830
10
intent, on certain aspects of human communication and the
connotation of the term “bullshit.”7 Applicant contends
that “a fair and objective reading of Professor Frankfurt’s
essay recognizes that ‘bullshit’ cannot be seen, at least
under today’s community standards, as an immoral or
scandalous term”; that the essay by Dr. Frankfurt
demonstrates that “bullshit” is “a subject worthy of
scholarly examination”; and that the essay is “not in any
sense intended to be scandalous or an affront to community
standards” (brief, p. 7).
Applicant submitted, with its request for remand,
evidence regarding a Showtime cable network television show
entitled “Penn & Teller: Bullshit!.” The evidence
includes press releases from Showtime’s own website
announcing in 2003 a new series of thirteen programs. The
remaining evidence consists of excerpts from the year 2003
from various websites (e.g., valleyadvocate.com,
azreporter.com, Fredericksburg.com, lasvegasweekly.com, and
newhavenadvocate.com) reviewing the “Penn & Teller:
Bullshit!” program series. The following are several
examples:

7 Applicant requests that we take judicial notice of “scholarly
reviews” at several websites of Dr. Frankfurt’s essay. This is
not common factual information of the type that the Board will
judicially notice and, thus, applicant’s request is denied.

Serial No. 75788830
11
October 20, 2003 – SHOWTIME has renewed its
multiple Emmy®-nominated series PENN & TELLER:
BULLSHIT!, from the Wolper Organization, for a
second season, …. The controversial series,
featuring master showmen Penn & Teller, initially
premiered on SHOWTIME in January 2003. It offers
viewers an aggressive, irreverent exposé of taboo
topics using the duo’s trademark humor, knowledge
of carnival tricks and con-artistry, as well as
hidden cameras and blatant confrontation.
[Showtime.com]

Penn & Teller have made a successful career out
of trickery, which makes the new vaudeville
magicians unlikely candidates for the roles of
consumer activists. Yet that’s the role they
play as the hosts, writers and producers of
Bullshit, an inventive investigative series that
challenges chicanery in its many forms. In half-
hour semi-documentary bursts of bravado, they
look at everything from birth to death, exploring
how you can get hoodwinked and screwed over every
step of the way by psychics, spiritual healers,
the medical profession, environmentalists and
purveyors of New Age Hokum. The difference
between Penn & Teller’s brand of illusion-based
entertainment and trickery, they counsel, is they
tell you they’re lying. [valleyadvocate.com]

While the title may give pause to viewers and
advertisers, its been carefully chosen because,
as Penn explains, while it’s profanity, it’s also
legal. Accusing performance artists of outright
fraud isn’t. So to avoid lawsuits, expletives
are used as (sic) rather than more socially
acceptable words. [azreporter.com]

In a silly, needless moment, [Penn] Jillette says
they’ll use lots of swearing and curse words to
describe folks who take advantage of the public.
“If we say they’re lying or cheating, we could
get sued,” said Jillette. “If we call them
expletive deleted, we make the same point and
stay out of court.” …
That doesn’t add a lot of credibility to the
series, nor does the general lack of direct
Serial No. 75788830
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questions to those Penn & Teller accuse of
perpetuating “Bullshit!” on the American public.
… Though I could do without the obscenities and
some of the series silliness, which pulls some of
the punches, it does shine a light on the
gullibility of people. [Fredericksburg.com]

Penn’s advice, by the way, for protecting
yourself against the various purveyors of
bullshit in the world is to stay open-minded.
[lasvegasweekly.com]

Applicant contends that the Tinseltown decision is
inapposite because it is more than twenty years old and
“community standards” of what constitutes immoral or
scandalous matter change over time; that “‘bullshit’ is
generally not viewed as a ‘curse’ of scandalous proportion,
and is not generally used as a term of scatological import
and significance” (brief, p. 6); and that the examining
attorney has not met her burden of proving that the term
“bullshit” is scandalous.
Applicant contends, further, that other registrations
owned by applicant contain the word “bull” (e.g., LORD
BULL, FUNKY BULL, RED BULL, BULLIONAIRE AND BULLERO) and,
like the mark herein, are merely different “plays” on the
word “bull.” We find this argument unpersuasive. Applicant
failed to submit acceptable copies of the registrations for
the noted marks; rather, the marks and registration numbers
are merely listed in applicant’s supplemental response of
November 10, 2003. While we have considered the listed
Serial No. 75788830
13
marks, this evidence is of minimal value, not only because
of the form of the submission, but because these other
marks owned by applicant, none of which contain the term
“bullshit,” are not probative of the alleged scandalousness
of the particular term at issue in this case.
Applicant also contends that the registered third-
party marks listed in its response of May 17, 2002,
containing the term “ass” are examples of changes in
“community standards” with respect to what constitutes
vulgar terminology since the Tinseltown decision. Again,
aside from the improper format in which these third-party
registrations were submitted, the Board does not find this
evidence to be probative of the alleged scandalousness, or
lack thereof, of the term “bullshit.” Thus, we also find
this argument unpersuasive. In re Nett Designs, Inc., 236
F.2d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001). For the same
reasons, applicant’s mention of two pending applications,
now abandoned, for marks including the term “bullshit” are
of no probative value.
Finally, applicant argues that its mark “is an obvious
play on the expression BULLS HIT, where a ‘Hit’ is a drink
or, in some parlance, an inhale or ingestion of some
substance – in this case one or more ‘Red Bulls’” (brief,
p. 12). The mark for which registration is sought is an
Serial No. 75788830
14
actual word and the examining attorney and applicant agree
on the definition of the term. Applicant has provided
absolutely no evidence supporting its statement that the
term would be perceived by anyone as BULLS HIT rather than
BULLSHIT; or that, if such was the case, that the phrase
BULLS HIT would carry the connotation proposed by
applicant. This argument is entirely unpersuasive.
Analysis
Registration of a mark which consists of or comprises
immoral or scandalous matter is prohibited under Section
2(a) of the Trademark Act. The Court of Appeals for the
Federal Circuit, in In re Mavety Group, Ltd., 33 F.3d 1367,
31 USPQ2d 1923 (Fed. Cir. 1994), reviewed the law regarding
scandalous or immoral matter. The court noted that the
burden of proving that a mark is scandalous rests with the
PTO. The examining attorney 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 Mavety, 31 USPQ2d at 1925,
citing In re Riverbank Canning Co., 95 F.2d 327, 37 USPQ
268 (CCPA 1938). The examining attorney must consider
applicant’s mark in the context of the marketplace as
applied to the identified goods and/or services in the
Serial No. 75788830
15
application for registration. Whether the mark consists of
or comprises scandalous matter is to be determined from the
standpoint of not necessarily a majority, but a substantial
composite of the general public, and in the context of
contemporary attitudes.
The examining attorney contends that the finding in
Tinseltown, supra, that BULLSHIT is scandalous is
sufficient to warrant the same finding in this case.
However, we must look at the facts underlying that decision
to determine, first, if it has any relevance to the case
before us; and, if so, we must determine whether that 1981
finding is equally applicable today.
Neither applicant nor the examining attorney disagrees
about the definition of the term “bullshit,” which is
defined in this record, essentially, as “ludicrously false
statements, lies, exaggerations, boasts, nonsense, foolish
deceitful language.” This is consistent with the
definition of the same term in 1981 in Tinseltown, supra;
and the mere fact that for some time the term has not been
defined in dictionaries specifically as “bull excrement”
does not render the term innocuous. Nor does this record
show that the term BULLSHIT has any other clearly innocuous
definition that could be the connotation of the term in the
context of these goods. See, e.g., In re Mavety Media
Serial No. 75788830
16
Group, Ltd., 33 F.3d 1367, 31 USPQ2d 1923 (Fed. Cir. 1994)
(BLACK TAIL for an adult entertainment magazine not
scandalous based only on dictionary definitions that
included both a vulgar and a non-vulgar definition of the
term “tail,” both of which were equally applicable in the
context of the goods).
In Tinseltown, supra, the Board found that, in the
context of the marketplace as applied to "accessories of a
personal nature, and wearing apparel, namely: attaché
cases, handbags, purses, belts, and wallets," the mark
BULLSHIT was offensive to a substantial composite of the
general public in the context of attitudes in 1981 and
therefore, under Section 2(a), scandalous. It is clearly
the profane connotation of the term per se, rather than a
particular meaning of the term when considered in
connection with goods of this nature (handbags and personal
accessories), that led the Board to conclude that the term
would be perceived by a substantial majority of the public
as profane and, thus, the term was scandalous. Cf. In re
Riverbank Canning Co., 37 USPQ 268 (CCPA 1938) (MADONNA
held scandalous as applied to wine); and In re Old Glory
Condom Corp., 26 USPQ2d 1216 (TTAB 1993) (flag design mark
in connection with condoms found not scandalous due to
Serial No. 75788830
17
seriousness of purpose surrounding the use of applicant's
mark as a campaign to prevent AIDS).
As in Tinseltown, there is nothing about the nature of
the goods and services identified in this application, and
there is no evidence of use, that gives the term a
different meaning from the meaning noted above, nor does
applicant contend otherwise.
In the case of In re Boulevard Entertainment, Inc.,
334 F.3d 1336, 67 USPQ2d 1475 (Fed. Cir. 2003), the court
concluded that dictionary evidence alone can be sufficient
to establish scandalousness of a term that, as defined, has
no other non-scandalous pertinent meaning. The court
stated the following (at 1478):
While it is true that the personal opinion of the
examining attorney cannot be the basis for a
determination that a mark is scandalous,
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.

The dictionary excerpts submitted by the examining attorney
include the following notations by the editors:
1992 American Heritage Dictionary of the English Language –
“obscene”; 2000 American Heritage Dictionary of the English
Language – “vulgar slang”; 2005 Merriam-Webster Online
Dictionary – “usually vulgar”; 2005 Encarta – “taboo term”
Serial No. 75788830
18
and a “Language Advisory”; 1997 Random House English
Language Dictionary – “vulgar”; and 2005 Cambridge
Dictionary of American English – “Rude Slang.”
As in Boulevard, applicant herein contends that the
dictionary evidence does not reflect current standards as
to whether the mark would be regarded as vulgar, i.e., that
the conclusion in Tinseltown is no longer applicable to
contemporary society. In this regard, the court in
Boulevard stated the following (at 1478-1479):
By their nature, sources of evidence of community
standards are typically based on an assessment
made at a particular point in time and therefore
are inherently subject to objection for being
outdated as time passes.
. . .
In order to mount a convincing challenge to a
dictionary on the ground that it is outdated and
therefore does not reflect current community
standards, the opponent of the evidence should be
expected either to present another authoritative
dictionary from a later date that takes a
different view of the meaning or acceptability of
a word, or to make a persuasive showing through
other evidence that the dictionary
characterization of the term in question no
longer accurately reflects commonly held views.

Applicant did not indicate whether its quoted definition
from WordNet 1.6 (1997) included an editorial notation;
however, the definition of the term in WordNet 2.0 (2006)
labeled the term “bullshit” and several synonyms as
“obscene words for unacceptable behavior.” We conclude
that applicant’s dictionary excerpts and those which we
Serial No. 75788830
19
have judicially noticed may be considered contemporary and
probative. We do not agree with applicant that the labels
noted in several of the more recent dictionaries (such as
“usually vulgar” or “rude slang”), suggest that the term
has lost its essentially vulgar connotation. Thus, these
dictionary definitions support the conclusion that the term
“bullshit” is as vulgar today as it was at the time of the
Tinseltown decision.
Similarly, we are not persuaded that applicant’s
evidence of uses of the term is sufficient to overcome the
prima facie case established by the various dictionary
excerpts and the Tinseltown decision. Regarding the Penn
and Teller program on the Showtime cable television
network, the excerpt from the Showtime website refers to
the subject matter of the show as “taboo”; and the majority
of the articles8 submitted by applicant about the show
contain discussions essentially characterizing the title of
the show as a profanity.
A close reading of the article by Professor Frankfurt
reveals that it is in the nature of social commentary that
is, at least at times, tongue-in-cheek. Further, the

8 We note, moreover, that the quoted articles are from several
websites and there is no indication of the extent of exposure the
public has had to these publications.

Serial No. 75788830
20
article itself acknowledges that the term is considered a
profanity. Moreover, applicant has provided no evidence of
the extent of exposure of the American public to either the
Penn and Teller program or the Professor Frankfurt essay.
Thus, the fact that the term “bullshit” appears therein
does not rebut the case established by the examining
attorney.
We note applicant’s reliance on In re Hershey, 6
USPQ2d 1470 (TTAB 1988), which found the mark BIG PECKER
BRAND for T-shirts to be not scandalous. The Hershey case
may be distinguished from this case on its facts. In
holding that the mark BIG PECKER BRAND does not offend
morality or raise scandal, unlike the case before us, the
Board found that the primary meanings of the word “pecker”
to the general public are innocuous, rather than vulgar.
In sum, the evidence of record is sufficient to
establish prima facie that the term “bullshit” is offensive
to the conscience of a substantial composite of the general
public and applicant’s evidence does not overcome the
examining attorney’s prima facie showing. Therefore, we
find that applicant’s mark consists of or comprises
scandalous matter.
Decision: The refusal to register under Section 2(a)
of the Trademark Act is affirmed.
Serial No. 75788830
21