The mark 'ShitBegone' (trade name for bathroom tissue) was ...



The mark "SHITBEGONE" (trade name for bathroom tissue) was refused by the examining attorney (hereafter EA) on the grounds that the mark "consists of or comprises immoral or scandalous matter." The applicant objects and asserts that in the context of a trade name for bathroom tissue, the complete mark "SHITBEGONE" falls short of being "immoral or scandalous matter."

In support of registration the applicant submits the following four arguments, each one of which is sufficient to show that the mark "SHITBEGONE" is neither immoral nor scandalous.

1. ADDITIONAL DEFINITIONS OF THE TERM "SHIT."

In her office action EA bases the finding of "immoral or scandalous" on a single, partial definition of the word "shit." Below appear two more definitions of "shit" as found in the American Heritage Dictionary of the English Language (as accessed online at ) and the Merriam-Webster Online Dictionary (accessed at ).

From American Heritage:

shit

VERB:

Inflected forms: shit also shat (   sh t) shit·ting ,shits

INTRANSITIVE VERB:

Vulgar Slang To defecate.

TRANSITIVE VERB:

1. To defecate in. 2. To tease or try to deceive.

NOUN:

1. Excrement.

From the Merriam-Webster Online Dictionary:

Main Entry: 1shit

Function: noun

Etymology: (assumed) Middle English, from Old English scite; akin to Old English -scItan to defecate

Date: circa 1585

1usually vulgar :EXCREMENT

Both of these definitions suggest the possibility of non-vulgar usages, particularly of the noun form of "shit" as used in the mark "SHITBEGONE." In the definition from American Heritage, the designation "vulgar slang" appears next to the intransitive verb form of "shit", however no such designation appears next to the noun form. And in the Merriam-Webster definition, the word "usually" is used to qualify the designation of "vulgar" ("usually vulgar"), indicating an acknowledgement of unspecified non-vulgar usages.

Even if the word "shit" were always (not just "usually") vulgar, vulgarity alone would not be sufficient to show that all uses of "shit" are scandalous or immoral. In origin and in a significant portion of contemporary usages, "vulgar" means simply "common" or "ordinary." Of the 13 senses of "vulgar" given by the Oxford English Dictionary (), only the last has any negative connotation at all, and even it suggests that vulgarity is more a matter of questionable taste, than of some more extreme "scandal" or "immorality":

"vulgar"

1. Employed in common or ordinary reckoning of time, distance, etc.; esp., in later use, vulgar era , the ordinary Christian era.

2. In common or general use; common, customary, or ordinary, as a matter of use or practice.

3. Of language or speech: Commonly or customarily used by the people of a country; ordinary, vernacular.

4. Written or spoken in, translated into, the usual language of a country.

5. Common or customary in respect of the use or understanding of language, words, or ideas.

6. Commonly current or prevalent, generally or widely disseminated, as a matter of knowledge, assertion, or opinion.

7. Of common occurrence; not rare.

8. Of or pertaining to the common people.

9. Of persons: Belonging to the ordinary or common class in the community; not distinguished or marked off from this in any way; plebeian.

10. Of the common or usual kind; of an ordinary commonplace character; exhibiting no special or distinguishing quality.

11. Of an ordinary unartificial type; not refined or advanced beyond the common.

12. Common in respect of use or association.

13. Having a common and offensively mean character; coarsely commonplace; lacking in refinement or good taste; uncultured, ill-bred.

Even well-established "vulgarity," then, would not in itself be sufficient for something to be judged immoral or scandalous.

Other dictionaries use other words to designate the potentially offensive nature of "shit"; one that is particularly interesting is "taboo." From the Cambridge Dictionary of American English (*1+0&dict=A):

shit (WASTE MATTER)

noun [U]

TABOO SLANG

solid waste that is excreted from the bowels

Like "vulgar," however, simply being "taboo" does not necessarily make something "immoral or scandalous." There are ample cases in which subjects may be taboo without being "immoral or scandalous." Asking a new acquaintance his income or net worth would be taboo in most contexts, but this does not mean money is immoral or scandalous. Vigorous political expression or discussion of sensitive family issues may be taboo in many contexts, but this does not make politics or family matters immoral or scandalous. For that matter, discussions of many other bodily functions — such as belching, vomiting, menstruating, perspiring, or passing gas — are taboo in public discourse. This does not make these functions, or all discussion thereof, inherently immoral or scandalous.

All of the various other phrases used by dictionaries to denote potentially offensive language — for instance "offensive," "obscene," or "not now in decent use" — are ultimately no more useful in objectively determining what is "immoral or scandalous", as all ultimately rely on unsubstantiated suppositions about the responses of a broad range of individuals in a broad range of contexts. Offensive or indecent to whom, in what context, what percentage of the time? For that matter, immoral or scandalous to whom, in what context, what percentage of the time? This is a larger problem which I will address in section 3 below.

2. PRECEDENT OF AMBIGUOUS TERMS USED IN APPROVED AND REGISTERED MARKS.

From the definitions above it can be seen that the term "shit" is ambiguous: it can take on various meanings or shades of meaning, any of which may be more or less offensive to a particular individual in a particular situation. Similar ambiguities apply to other commonly offensive terms found in trademarks which have been allowed and subsequently registered. In all of the following cases, terms generally designated "vulgar" or "obscene" (that is, terms which have the potential to offend) form parts of marks which have been allowed and registered. Each case is thus a precedent for "vulgar" or "obscene" terms falling below the threshold of "immoral or scandalous matter" when viewed in the context of a particular mark.

In each example, the mark is preceded by its registration number and followed by its declared use in "Goods and Services".

MARKS WITH "DICK"

The term "dick," when used in the common sense of "penis," is probably more offensive to the average American than the word "shit". The Merriam Webster dictionary calls it "Usually Vulgar," and Cambridge American English calls it "Taboo Slang." These are the same designations as for the word "shit." American Heritage (this time quite unambiguously) states that the noun form "dick" is "vulgar."

registered mark 2570308 "COWBOY DICK" (clothing)

The examining attorney in this case may have felt that the "dick" in "COWBOY DICK" could conceivably refer only to a cowboy named Richard, rather than to cowboys' penises. In actuality, a brief Internet search (predictably) reveals the phrase in use on T-shirts imprinted with "Girls Love Cowboy Dick."

registered mark 2560443 "DICKSOAP" (personal hygiene products)

Again, the examining attorney may have felt that this could be a soap named for or made by a man named Richard, or perhaps even a soap specifically intended for detectives. But again rather predictably, it turns out that actual use is on a bar of soap molded in the shape of a penis.

registered mark 2638591 "MOBY DICK" (condoms)

This approved mark is a closer parallel to the case of "SHITBEGONE." The applicant stated clearly that the mark was to be used on condoms and the mark was approved even though, in the context of condoms, "dick" will unquestionably be read as "penis" and not as "Richard" or "detective". The reference to Herman Melville's novel "Moby Dick", far from confusing the (possibly offensive) meaning of "dick", only confirms and heightens its offensiveness (if in fact penises are offensive): according to the book's narrator Ishmael, Moby Dick is "a Sperm Whale of uncommon magnitude."

2b. Mark with "anal"

registered mark 2698644 ANAL INTENSIVE (pre-recorded video tapes and digital video discs (DVDs) in the field of adult entertainment)

Although the word "anal" has many quite inoffensive uses, in the context of this mark it clearly refers to anal sex. Anal sex is a crime (sodomy) punishable by imprisonment in many states— yet somehow referring to it in a trademark still fell short of "immoral or scandalous" in this case.

2c. Mark with "crap"

The word "crap" is according to Merriam Webster "Usually Vulgar;" to Cambridge American it is "Taboo Slang." These are the exact same designations as for "shit."

registered mark 2646544 COWBOY TOILET PAPER! ROUGH AND TOUGH AND DON'T TAKE CRAP OFF NOTHING! 10 GAL HAT OUTHOUSE (novelty toilet paper)

Registration of this mark sets a clear precedent for registration of SHITBEGONE. The mark is used on a brand of novelty toilet paper. Note that "crap" in the context of this toilet paper, like "shit" in SHITBEGONE, clearly refers to fecal matter remaining on the anus after defecation, not to both words' alternate (and possibly less offensive) meaning of "stuff." Both terms and both marks must be judged according to the clear contextual meaning of human excrement to be wiped, and not to alternate (offensive or not) meanings or usages of the respective terms. If human excrement in need of removal is not judged "immoral or scandalous" in one case, then it should not be judged so in the other case.

2d. Marks with "fart"

The term "fart" (noun, an expulsion of intestinal gas through the anus, often accompanied by noise) is designated "Rude Slang" by Cambridge, "Vulgar Slang" by American Heritage, and "Often Vulgar" by Merriam-Webster.

registered mark 2622376 "OLD FART BAKED BEAN CO." (mix for making baked beans)

Beans are commonly known or believed to cause intestinal gas. "Fart" as used in this registered mark thus clearly conjures a (possibly offensive) image of passing gas. It seems questionable at best to assert that the expulsion of solid fecal matter is immoral or scandalous, while its gaseous equivalent is not.

registered mark 2319218 "FART BOMB" (inflatable toys)

This toy is also known as a Whoopee Cushion. When inflated and then squeezed, it replicates the sound of a particularly loud fart.

registered mark 2162992 "FART EXTINGUISHER" (novelty air freshener)

Much like "MOBY DICK" and "SHITBEGONE", all three "fart" marks not only include a potentially offensive word, but make direct and unambiguous reference to exactly that particular meaning of the word which is often found offensive. Yet by the very specificity of their usage in these contexts, these trademarks transcend "vulgarity" or potential to offend.

Words function by signifying things; in the case of nouns naming everyday objects, they call to mind a mental image of the object. Thus offensive words function (that is, they offend) by signifying and calling to mind offensive things. Yet in a situation where the offensive thing is always already present (in the case of a product for sale, where the offensive thing is always already signified by product-intrinsic qualities other than a name or trademark, such as acknowledged intended use), then words like "dick," "fart," or "shit," offensive in other contexts, can be no more offensive than their real-life referents which are already (symbolically) present. Their potential for vulgarity — the potential to bring to mind a potentially offensive thing — is eclipsed, because the potentially offensive thing is already present. No word, phrase, or trademark can be more offensive than the (imagined) act of using the product. In fact, if this act is offensive at all, it must be so even if the product remained nameless.

In the twentieth century, common marketing practice for this type of product was to cover over the potentially offensive nature of the product by using trademarks and marketing imagery which did anything other than actually describe the product's function. At our particular moment in history, the names under discussion here seem "funny" because they refuse to follow this tradition of obfuscation. Yet they are not bringing any "offensive" concept to the table which was not already there. Moby Dick's intended and acknowledged function is to inhibit the normal function of the penis (dick); Fart Extinguisher's function is to remove the offensive smell of farts from the air. In turn, ShitBegone's acknowledged and intended function is to remove residual excrement from the area around the anus after defecation. The principle in all three cases is the same. In other contexts, all of the terms "dick", "fart", and "shit" may be vulgar or obscene; yet in the context of these products they become merely everyday descriptions of the product's functions.

3. EVOLUTION OF LANGUAGE AND CULTURE TOWARD GREATER PERMISSIVENESS OF PREVIOUSLY TABOO TOPICS.

Standards of acceptable expression are never fixed in stone; they are re-evaluated constantly by all participants in a culture. In each of the eight trademarks referenced above, the registration date was 1998 or later; most of the marks were registered in 2001 or 2002. These eight trademarks represent and confirm a trend toward greater tolerance of explicit representations of bodily functions in American English usage, and in American culture generally. Two other examples may help illustrate this trend. The first, though narrow example, is extremely relevant to the present case: it is Kimberly-Clark's recent multimillion-dollar advertising campaign for Cottonelle Fresh Rollwipes. As reported on , the campaign included television commercials featuring prominent close-ups of attractive (clothed, but no doubt clean) backsides and slogans such as "feel truly fresh where it really counts." Other advertisements made explicit reference to "skid marks" (fecal staining of the undergarments caused by improper wiping), urging viewers to "keep you whites, um, their whitest." The symbolic workings of this multimillion-dollar ad campaign, presented through print, television, and outdoor signage, are exactly the same as for the name "SHITBEGONE". Rather than obscuring the acknowledged function of toilet tissue as offensive-in-itself, they celebrate that function as the removal of potentially offensive matter — matter which will always be there, no matter how this product is marketed.

While Cottonelle's high-profile commercials would specifically suggest widespread public tolerance for a name like "SHITBEGONE" on bathroom tissue, other evidence points to greater acceptability of the term "shit" in public discourse generally. "Shit" as well as other formerly taboo, four-letter terms are now heard routinely on prime-time broadcast television. FCC regulations prohibiting "indecent" material define it as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." The key here is "as measured by contemporary community standards," a phrase which specifically acknowledges that standards can change. As for how to judge those standards at any particular time, the FCC's common-sense approach is to investigate "offensive" broadcasts only when it receives complaints; that is, only when it is alerted to an actual, as opposed to potential, instance of offence being taken. Apparently, even as the amount of "profane" language on network television has grown steadily since the late 90s, the number of complaints have not, with the result that the FCC and television broadcasters have continued the trend toward tolerance of a level of profanity more in line with everyday language than the "sanitized" broadcasts of the late 20th century.

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4. PROVEN MARKET AND PUBLIC ACCEPTANCE OF "SHITBEGONE."

If we agree with the FCC that a scandalized public is, ultimately, the only valid measure by which to judge given material as "immoral or scandalous", then ShitBegone Toilet Paper does not come close. In three years of marketing ShitBegone, the manufacturer has received precisely two complaints which indicated that individuals had been "scandalized." Meanwhile, over 60,000 rolls of ShitBegone were sold to several thousand distinct end users, with millions more seeing and responding positively to images of the product. The paper was marketed both over the Internet and through over two dozen retail locations. Of the retail locations, nearly all were neighborhood grocery stores, selling general grocery products and patronized by a large and heterogeneous public. ShitBegone has been featured in at least one major national magazine, and in local and online publications too numerous to count. Millions of visits were registered to the ShitBegone Web site, and unsolicited, positive feedback (mostly decrying the lack of a local ShitBegone dealer) outpaced the (two) complaints by a factor of several hundred to one.

This concludes the evidence and arguments in support of registration. If registration is accepted the attached drawing may be substituted for the one previously submitted.

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