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Trademarks Can Be a Bitch

Posted in First Amendment, Trademarks, TTAB, USPTO

And I mean that literally.

We’ve laid down a lot of digital ink in the past about pejorative marks – lately in reference to the Redskins (at least here, here, and here) and  The Slants (here and here), both of which have been deemed disparaging enough to deny them a federal trademark registration.  We’ve even addressed some sexism in branding.  And I’m about to lay down a little more such ink.

I once saw a sign at my high school, which is attached to a convent, that said basically “tweet and post as if you were talking to one of the Sisters,” so I’m going to do my best to adhere to that with the topic at hand.

The topic is the word “bitch” in trademarks.

It’s a word that, by long-standing definition, refers to a female dog.  It also, of course, has been used as a pejorative term against women.   However, it also can characterize a strong, assertive woman.

In March, Flying Dog Brewery of Virginia won a long and hard fought First Amendment battle over the trademark RAGING BITCH in the state of Michigan.  The state of Michigan’s liquor commission had banned their beer labeled RAGING BITCH on the basis that the name was sexist and offensive, and Flying Dog tried to recoup lost profits because of the ban.  The Sixth Circuit ruled that the liquor commission had violated Flying Dog’s First Amendment rights and that the liquor commission should have been on notice that “banning a beer label for vulgarity violates the First Amendment” based on Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998) and remanded it to the district court (the parties then settled).

raging-bitch-label

The imagery clearly refers to a female dog.

The interesting part about this case is that Flying Dog owns an active federal trademark registration for the mark RAGING BITCH for beer (and incidentally, I’ve tried it and it’s quite a good beer).  For those unfamiliar with the nuances of brewery law, if a brewery wishes to sell their product in another state, they have to obtain a COLA (certificate of label approval) from the federal government’s TTB.  In addition, they often undergo specific licensing procedures within the relevant state, which is where the Michigan Liquor Control Commission balked at sales of the product due to the name.  Here, although they had an approved federal trademark registration which requires use in interstate commerce (and  a COLA license), they were impeded by the local authority in one state.

Section 2(a) prohibits the registration of a mark that consists of or comprises matter that may disparage, or bring into contempt or disrepute, persons, institutions, beliefs or national symbols. TMEP 1203.03(c).  To be disparaging, it must be shown (1) that the communication reasonably would be understood as referring to the plaintiff; and (2) that the communication is disparaging, that is, would be considered offensive or objectionable by a reasonable person of ordinary sensibilities. Id.

During some Wild-Blackhawks playoff intermissions, a question was posed to me:  why is Blackhawks OK but the Fighting Illini are not?  One refers to a revered leader of the Sauk and Fox Indians while the other to a made-up chief, Chief Illiniwek.  Seemingly, it’s a matter of connotation – a Redskin with a potato mascot may be acceptable under Section 2(a) if it is not understood to be referring to an Indian tribe plaintiff.

And in general, is society too offensive or too easily offended?  Or, even in such a politically correct society, are we not offended often enough?