When thinking about brands comprising religious matter, I think of EZEKIEL 4:9.

The EZEKIEL 4:9 brand has been registered as a trademark for bread since 1990.

The brand owner had to clear some chaff from the Principal Register to do so, threshing this EZEKIEL as abandoned, and gaining this EZEKIEL by assignment.

It presently owns five federal registrations for depictions of the EZEKIEL 4:9 mark.

The above EZEKIEL 4:9 packaging explains the meaning behind the brand name:

“AS DESCRIBED IN THE HOLY SCRIPTURE VERSE: ‘Take also unto thee wheat, and barley, and beans, and lentils, and millet, and spelt, and put them in one vessel, and make bread of it …’ Ezekiel 4:9″ (emphasis added)

Despite use of the dreaded D-word on packaging, all five registrations issued without descriptiveness refusals or the need to show acquired distinctiveness.

So given that easy-button background at the USPTO, one might expect that a brand new application by the brand owner for EZEKIEL 4:9, expanding coverage to include nutritional supplement bars and beverages would be, well, easy.

You’d be wrong, because the USPTO issued an informational/incapable refusal, claiming after “further examination” EZEKIEL 4:9 is incapable as a trademark:

“Registration is refused because the applied-for mark is merely informational and constitutes a citation from a religious text that is used in the marketplace; it does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.”

The good news for this brand owner is the USPTO withdrew the refusal and approved the mark for publication, but only after a weighty 41-page response.

So, what if the Examining Attorney had held firm and required an appeal?

As I’ve hinted before, since disparaging and scandalous marks cannot be denied USPTO registration on First Amendment grounds, what about religious matter?

Would the USPTO be able to defend the constitutionality of denying trademark registration as comprising some forbidden fruit or matter from religious texts?

After all the First Amendment protects not only free speech, but free exercise of religion too, so the federal government cannot prefer non-religion over religion.