WYHA? Precedential No. 8: TTAB Affirms Section 2(a) Disparagement Refusal of PORNO JESUS
Not surprisingly, the Board affirmed a Section 2(a) disparagement refusal of PORNO JESUS for DVDs and video recordings "featuring music videos, adult themed content, glamour photography, and adult entertainment." The Board found it clear that the applied-for mark would have the "likely meaning" of Jesus Christ being associated with pornography, a meaning that may be disparaging to a substantial composite of Christian-Americans. In re Matthew Beck, 114 USPQ2d 1048 (TTAB 2015) [precedential].
Section 2(a) of the Lanham Act prohibits registration of a mark consisting of matter which may disparage, inter alia, “persons,” “institutions,” or “beliefs.” The Board applies the following two-part test to determine whether a mark is disparaging:
1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and
2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.
Examining Attorney John M. Gartner relied on numerous dictionary definitions and encyclopedia entries regarding the terms comprising the mark, as well as on Internet materials providing membership statistics for various Christian denominations in this country, and materials discussing the views of certain denominations toward pornography. [They don't like it - ed.].
Applicant Beck submitted articles from various Internet sources discussing shifting views among Christians on issues involving pornography, including material from a website disseminating and supporting Christian pornography, as well as several third-party registrations for marks containing the word "Jesus:" HOOKERS FOR JESUS for charitable services, REDNECK JESUS for entertainment and informational services, JESUS FREAK for clothing, THE DAY JESUS SPOKE HIP HOP for entertainment services featuring Christian music, and WHO WOULD JESUS SUE? for printed publications in the field of faith-based advocacy.
There was no dispute that "Jesus" in the applied-for mark refers to Jesus of Nazareth, upon whom the Christian faith is based, and there was agreement that "porno" means - you know what. Thus the Board found that the likely meaning of PORNO JESUS is "Jesus of Nazareth partaking of acts related to pornographic or sexually explicit materials."
Although the Board opined that PORNO JESUS would be "potentially disparaging regardless of applicant's goods or services, actual use or intent," it proceeded to consider the manner of use of the mark. Because applicant Beck's goods feature "adult-themed content," which applicant acknowledged includes pornographic films, it was clear that PORNO JESUS would have the "likely meaning" of "Jesus Christ associated with pornographic acts and sexually explicit materials."
Next the Board considered whether the meaning of the mark would disparage a substantial component of the referenced group, which the Board found to be Christian-Americans. The examining attorney's evidence from the websites of several Christian denominations indicated that these denominations oppose pornography, believing it to be harmful and not in conformance with the tenets of Christianity.
With regard to the third-party registrations cited by Applicant Beck, the Board once again observed that it is not bound by the determinations of examining attorneys in other cases, but must apply the statute to the fact record before it. In any case, none of the third-party registrations associated Jesus Christ with pornography and none involved adult-themed materials.
The existence of a sub-genre of Christian-themed pornographic movies (featuring married couples portraying married couples engaged in sex acts intended to be instructional and reflecting the beliefs of some Christians) suggests that the larger body of pornography does not reflect Christian beliefs. Moreover, Mr. Beck's identification of goods was not restricted to a type of pornography that may theoretically be acceptable to certain Christians. In any case, the examining attorney is not required to show that all members of the referenced group would find the mark disparaging.
Finally, the Board noted that in meeting its burden of proof, the PTO may, in the absence of direct evidence, extrapolate from the evidence of record to show that a substantial composite of Christian-Americans find the mark PORNO JESUS for the identified goods to be disparaging.
And so the Board affirmed the refusal to register.
Read comments and post your comment here
TTABlog note: Well, would you have appealed?
Text Copyright John L. Welch 2015.
posted by John L. Welch @ 3/23/2015
5 comments
5 Comments:
John, your readers will laugh at my ignorance here. In reviewing the decision, the big take-away question I had was “Is this field so crowded with competitors for the applied-for mark that Federal registration was considered necessary?” As the Board rightly points out, applicant is free to use the applied-for mark absent Federal registration. So…did they need a Federal registration to stop all those infringers at the border? Did they want to fast-track all those foreign filings? My presumption (maybe it’s more of a hope) is that the applicant pretty much has this market to itself!
With the Redskins and Slants cases being so big right now, it’s easy to forget that the statute prohibits not only disparaging a group of people but also their beliefs. And that’s where I thought the Board was going with this opinion. But it focuses instead on how the mark disparages Christians as a group rather than their beliefs. How does PORNO JESUS make Christians as a group look bad? How does it disparage them? It might, but the opinion doesn’t mention how.
Instead, the opinion emphasizes how offensive the mark would be to Christians. It reads just like a scandalousness opinion, but the “substantial composite of the public” gets to be narrowed down to Christians rather than focusing more broadly on the general public because it's disparagement instead. Tricky.
I understand the distinction between disparaging and beliefs, but in either event, this fails the test. The first poster had it right in that if you are selling something like this, why do you need to get a federal registration? To enforce against whom using what?
I'm not sure if there are really that many more people today (than in the Stone Age) who are appealing refusals of plain vulgar terms and/or ones that clearly associate something with a dirty term - like this one, or there are so many lawyers in need of something to do that they convince their client to appeal such stuff. Some of these cases clearly have an argument on either side of the issue. Many of them, such as this one, do not, nor do the advance the jurisprudence.
Has the Board adopted blasphemy as a basis for refusal? How else can you distinguish PORNO JESEUS from PORNO JIM (Reg No. 4426700)? While both marks contain a popular first name (the phone books are full of them), only one mark contains the name of God's son. (Although last week CNN reported that Jesus may have had a brother, James). Do we really want the Federal Government drawing religious based distinctions of this sort?
Would I have appealed? Nope!
I agree with E.K. Meltzer and joe dreitler in questioning why this mark was registered in the first place. I suppose some business person had heard about trademark protection and decided to go for it because I can’t imagine any lawyer hearing a proposal for the mark “Porno Jesus” and not immediately expressing a disparagement concern.
The two-part test is applied properly here. In the first step, the Examiner determines what is the likely meaning in question as a whole including the nature of the goods or services. The composition of “Porno” and “Jesus” connotes porn that includes the use of the religious symbol (particularly since the parties didn’t even try to stipulate that maybe it was the name of a Hispanic fella). Many of the other marks that Beck refers to here (“Redneck Jesus” “Hookers for Jesus”) have less potentially offensive uses, whereas “Porno Jesus” is used in exactly the manner that the mark suggests, Porn. Therefore, the Board’s determination that “’Porno Jesus’ had a ‘likely meaning’ of Jesus Christ associated with pornographic acts and sexually explicit materials” was on point.
The second step looks at the potentially disparaged groups that are affected by the mark. Christianity, as a major international religion, the group that is potentially disparaged by this mark is quite large. The Examiner’s discovery of a fairly pervasive negative Christian view against pornography is backed up with general common knowledge. And although Beck may argue that unlike Lebanese Arak, Christians are not prohibited from consuming pornography and therefore the offensiveness may not be limited to Christians, the Board applies a Justice Stewart-like “I know it when I see it” to determine that pornography is distasteful to populations that may include non-Christians as well. And the fact that non-Christians may be offended does not preclude a determination that the offensiveness to Christians is disparagement enough for a refusal to register the mark.
I think Beck’s best argument is that of Christian evolving views towards sexuality and other related acts creating a barrier to the finding of disparagement. Unfortunately, the Board does NOT buy this argument, finding that the Examiner met the substantial evidence burden. Based on the evidence and considering the likelihood of any participating justice’s Christian faith, this argument was unlikely to succeed.
This registration was doomed from the beginning – an appeal was a waste of energy and dollars.
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