gregh  2007-09-27 22:06  frogs  Law_School  trademark   

In my earlier post, I apparently overlooked some TTAB gold. Sure, the note in the casebook suggests that, "[r]eported decisions on alleged scandalous marks provide a source of comic relief for trademark lawyers and students," and provides a list we may wish to consider during a "study break." But who was I to believe that I'd want to go look up a decision for a so-called study break? Well, after the professor started in on this thing during class, I had to go check it out. The casebook parenthetical says merely, "Registrability of logo of frog making obscene gesture for beer." It is better than that.

First, the Examining Attorney has failed to prove that in viewing either of applicant's two marks by themselves, consumers would perceive the frog as flipping the bird. Second, even assuming for the sake of argument that consumers viewing applicant's marks by themselves would perceive the frog as flipping the bird, the Examining Attorney has failed to establish that said gesture - when done by a realistic looking animal (and not a human) and when directed to no particular person or group - would be perceived as scandalous and immoral.

But then it gets good.

In viewing the right front leg of applicant's frog . . ., the digits of the leg are positioned such that they bear . . . only a very remote similarity to the gesture of flipping the bird or giving the finger. The Examining Attorney has made of record literally dozens of pictures of humans flipping the bird. In each of these pictures, there are no gaps whatsoever between the middle or “flicker finger” and the fingers on either side of the middle finger. In striking' contrast, the right front leg of applicant's frog is depicted with wide gaps between the highest digit (which the Examining Attorney contends is the flicker finger) and the digits on either side of it.
. . .
[T]he Examining Attorney's own evidence demonstrates that it is not unusual for humans to give the finger in a downward position. See, for example, the February 1997 issue of GQ made of record by the Examining Attorney.
. . .
[W]e note in passing that the Examining Attorney's own evidence shows that even when humans give the finger to a particular individual or group, that, depending upon the circumstances, said gesture may be acceptable. The Examining Attorney places a great deal of reliance on a lengthy article by Bruce Anderson entitled “The Illustrated History of Flipping the Bird” which appeared in the February 1997 issue of GQ (Gentlemen's Quarterly).
. . .
As for the Examining Attorney's argument that professional athletes and television commentators have been fined or suspended for giving the finger to fans and viewers, we simply note that when one offends fans and viewers (i.e. customers), team owners and station managers will take action. For example, if a television commentator called his viewing audience “nincompoops” or “chuckleheads,” he no doubt would be reprimanded in some manner. However, such reprimands do not prove that these terms or “the finger” are scandalous or immoral as contemplated by Section 2(a) of the Lanham Trademark Act.

I guess someone has to address these weighty issues.