Remember a couple weeks ago when the Washington Redskins submitted a laundry list of registered trademarks that its counsel contended were offensive or disparaging? And remember when that same week the makers of “Nut Sack Double Brown Ale” beer were granted a federal trademark registration over similar objections? You should – I wrote it on the paper.
Now another beer maker has been granted what I will call a questionable trademark registration. One that I am sure would have been listed right at the top of the Washington Redskins’ bad name list. LEFT NUT BREWING COMPANY is now a federally registered trademark. Really. On November 13, 2015, the Trademark Trial and Appeal Board reversed the decision of the trademark examining attorney and granted the registration.
I am sure that Daniel Snyder is handling this news with calm, cool reflection. Or whatever the exact opposite of that is.
How did the brewing company acquire a trademark registration here? For they literally were not asked to give up their left nut to do so.
After filing an application seeking registration, the examining attorney refused the application under 15 U.S.C. § 1052(a) (also known as a Section 2(a) Refusal). The Patent and Trademark Office bears the burden of establishing that a mark is “vulgar.” According to the TTAB, this demonstration “must be made in the context of contemporary attitudes, in the context of the marketplace as applied to the goods described in the application, and from the standpoint of not necessarily a majority, but a substantial composite of the general public.”
Not surprisingly, the potentially “vulgar” part of this mark was the use of the words “left nut” and the examining attorney relied upon dictionary definitions, whereby the Merriam-Webster online dictionary listed as part of the definition for “NUT” that a “usually vulgar” interpretation is “TESTIS.” The conjoined term “left nut” is not found in any standard dictionaries. Apparently, the TTAB does not consider the Urban Dictionary to be a “standard dictionary” – but the examining attorney cited and referenced it nonetheless. What is interesting is that the Urban Dictionary’s definition of “LEFT NUT” almost makes this trademark merely descriptive:
a part of one’s anatomy that one would sacrifice to experience something exceptional
I’d give my friggin’ left nut to see that s–t!.
Nevertheless, after consideration of these “slang” dictionary sources, the TTAB first addressed the applicant’s argument that the examining attorney impermissibly shifted the burden of proof on the applicant as it relates to vulgarity under Section 2(a). This argument was rejected, however, because these citations to the Urban Dictionary and other internet sources may support the “general public” attitude towards the alleged vulgarity of the mark, thereby potentially rendering it scandalous.
Yet the key argument is this: the listing of potentially vulgar meanings on Urban Dictionary does not by itself demonstrate that the term “left nut” is inherently vulgar. According to the TTAB, there are a “number of different meanings and [it] is not always vulgar, even when sometimes referring to a testicle.” In fact, the TTAB cited to a former U.S. Senator’s use of the term as a “figure of speech” in support of this counter-argument. Accordingly, pursuant to prior registrations and the applicant’s arguments herein, the TTAB tells us the following:
“anatomical references alone are not vulgar.”
The balls on these guys…
 In re Fox, 7092 F.3d 633 (Fed. Cir. 2012); In re Star Belly Stitcher, Inc., 107 U.S.P.Q.2d 2059, 2060 (TTAB 2013).
 http://ttabvue.uspto.gov/ttabvue/v?pno=85935569&pty=EXA&eno=16 (citing In re Fox).
 “In one excerpt, former U.S. Senator Alan Simpson tells a reporter to ‘Grab Your Left Nut For Luck’.”