Seeing Red… US PTO Refuse to Register Scandalous Matter as Trademark

In re Red Bull GmbH (Serial Number 75788830), the United States Trademark Trial and Appeal Board ruled that in holding matter to be immoral or scandalous within the meaning of Section 2(a), the burden is on the examiner to demonstrate that the applicant’s mark is "shocking to the sense of truth, decency or propriety" of contemporary attitudes in "the context of the marketplace as applied to the identified goods.." It is sufficient if a substantial composite of the general public consider the mark to comprise scandalous matter, although a majority is not required. In this instance, applicant sought to register BULLS__T for a variety of alcoholic and non-alcoholic beverages and hospitality services. The examining attorney refused the application relying on the prior 1981 decision In re Tinseltown, Inc 212 USPQ 863, wherein the identical mark was refused for handbags and on six definitions taken from on-line dictionaries, of which the Board took judicial notice because the sources were clearly identified and were readily verifiable and reliable. Applicant’s rebuttal evidence illustrating contemporary use of the term in popular culture was insufficient to overcome examining attorney’s prima facie showing that the mark was immoral or scandalous.