World Intellectual Property Review reports that the U.S. Patent and Trademark Office (USPTO) has issued a final refusal to register COMFYBALLS as a trademark for a line of men’s and women’s underwear. The applicant, Norway-based Tonic Brands AS, filed U.S. Application Serial No. 85952474 on June 6, 2013, claiming priority to an equivalent European Community Trademark registration for the COMFYBALLS mark. As its sole basis for refusal, the USPTO contends that “the applied-for mark consists of or includes immoral or scandalous matter” under § 2(a) of the Trademark Act, 15 U.S.C. § 1052(a).
The USPTO explains in its refusal that, “[f]or a mark to be ‘scandalous,’ the evidence must show that the mark would be considered shocking to the sense of decency or propriety, giving offense to the conscience or moral feelings, or calling out for condemnation,” and further states that “[e]vidence that a mark is vulgar is sufficient to establish that the mark is scandalous or immoral within the meaning of Trademark Act Section 2(a).” Because the term “balls” is considered to be a “vulgar” slang term for a particular part of a man’s undercarriage, and because Tonic Brands admitted that its own use of the term was in reference to said part of said undercarriage, the USPTO ruled that “registration is denied because the mark includes a vulgar term which is immoral or scandalous, particularly in the context in which the applicant intends to use the term.” Even if the USPTO had been willing to sacrifice the delicate sensibilities of the American people on the altar of commerce, registration on the Principal Register may still have been a long shot—if the underwear lives up to its name, the COMFYBALLS mark is practically begging for a refusal based on descriptiveness. Read the full article here, and shock your own sense of decency and propriety with the COMFYBALLS application here.
Reposted from World Intellectual Property Review.