Scandalousness and internet evidence

The TTABlog reports that the TTAB affirmed the refusal of PUSSY NATURAL ENERGY for various beverages, including energy drinks, on scandalousness grounds. As John Welch notes, the decision is well worth reading, in part for illustrating how the internet has changed PTO practice: when looking for information about whether the term “pussy” is scandalous to a substantial composite of the public—in this case, the TTAB concluded, women—the examiner was able to rely on a number of casual online discussions, which might have occurred offline but would never have been accessible to other people without casual public posting. These discussions turned out to be useful evidence for a purpose that the original participants never anticipated; they thought they were talking among themselves. This is just one of the ways in which the internet/search engines have created new kinds of serendipity.

Also of note is the extent to which the TTAB’s opinion engages, or declines to engage, with the applicant’s argument that “pussy” might mean a lot of things. The real answer to that is: Come on! But translating that answer into legal reasoning can be difficult; the TTAB proceeds by pointing out that reporting on the company talks about its “provocative” name, indicating that the press isn’t thinking about pussy willows, pus-filled wounds (really, applicant? That’s what you contend people might think of ? Did you even want to be taken seriously?), or even weak boys/men (the TTAB does not connect that meaning with the scandalous meaning; there’s a probably correct implicit assumption here that calling a guy a pussy isn’t as scandalous as using the term to refer to sex with a woman). But the TTAB ultimately finesses the question of whether PUSSY, as applied to an energy drink, is scandalous—every reason given why people would understand the scandalous meaning would apply to almost every good or service I could think of, though perhaps some pet-related businesses could get off the hook as double entendres.