Mark David Frankel

Trademark Trial and Appeal Board

Mar 29, 2002

No. 75702011 (T.T.A.B. Mar. 29, 2002)

3/29/02
Paper No.
PTH

U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Mark David Frankel
________

Serial Nos. 75/702,008; 75/702,010; and 75/702,011
_______

Jeffrey L. Costellia of Nixon Peabody LLP for applicant.

Inga Ervin, Trademark Examining Attorney, Law Office 111
(Craig Taylor, Managing Attorney).
_______

Before Hohein, Hairston and Bucher, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Applications have been filed by Mark David Frankel to
register the marks set forth below:
GRANDMA SCHITTHED’S OUTHOUSE BROWN for beer and
ale;1

1 Serial No. 75/702,008, filed May 10, 1999, alleging a bona fide
intention to use the mark in commerce. The word “BROWN” has been
disclaimed apart from the mark as shown. The application
includes a statement that “GRANDMA SCHITTHED” does not identify a
living individual.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
2
GRANDPA SCHITTHED’S INKY STINKY PALE ALE for
beer and ale;2 and

SCHITTHED’S for beer and ale; restaurant and
bar services; mugs; and T-shirts and hats.3

The Trademark Examining Attorney has finally refused
registration under Section 2(a) of the Trademark Act on the
ground that each of the marks consists of or comprises
immoral or scandalous matter. The Examining Attorney
maintains that the term “SCHITTHED” is the phonetic
equivalent of “shithead,” a term which is offensive to a
substantial composite of the general public.
Applicant, in each instance, has appealed. Briefs
have been filed, but an oral hearing was not requested.
Because the issue in each case is essentially the same, the
appeals have been treated in a single opinion. We affirm
the refusals to register.
Registration of a mark which consists of or comprises
immoral or scandalous matter is prohibited under Section
2(a) of the Trademark Act. The Court of Appeals for the
Federal Circuit, in In re Mavety Group, Ltd., 33 F.3d 1367,
31 USPQ2d 1923 (Fed. Cir. 1994), reviewed the law regarding

2 Serial No. 75/702,010, filed May 10, 1999, alleging a bona fide
intention to use the mark in commerce. The words “PALE ALE” have
been disclaimed apart from the mark as shown. The application
includes a statement that “GRANDPA SCHITTHED” does not identify a
living individual.
3 Serial No. 75/702,011, filed May 10, 1999, alleging a bona fide
intention to use the mark in commerce.
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
3
scandalous or immoral matter. The court noted that the
burden of proving that a mark is scandalous rests with the
United States Patent and Trademark Office. The Examining
Attorney must demonstrate that the mark is “‘shocking to
the sense of truth, decency, or propriety; disgraceful;
offensive; disreputable; . . . giving offense to the
conscience or moral feelings; . . . [or] calling out [for]
condemnation.’” In re Mavety, 31 USPQ2d at 1925, citing In
re Riverbank Canning Co., 95 F.2d 327, 37 USPQ 268 (CCPA
1938). The mark is to be considered in the context of the
marketplace as applied to only the goods or services in the
application for registration. Whether the mark consists of
or comprises scandalous matter is to be determined from the
standpoint of not necessarily a majority, but a substantial
composite of the general public, and in the context of
contemporary attitudes.
In support of her position that the term “SCHITTHED”
is likely to be pronounced as “shit head,” the Examining
Attorney submitted a copy of page 1044 from Merriam
Webster’s Collegiate Dictionary (date unknown) which shows
that there are several words where “sch” is pronounced as
“sh.”4 Further, in support of her position that the term

4 Examples are “schick test,” “schiller,” “schist,” “schistose,”
“schistosome,” and “schistosomiasis.”
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
4
“shit head” is offensive, the Examining Attorney made of
record evidence from the NEXIS database of stories
published in newspapers and magazines. Specifically, the
Examining Attorney has relied upon excerpts from 40 stories
in which the term “shit head” or “shithead” appears. A
review of these story excerpts reveals that many of them
appear to be from foreign publications. In the absence of
evidence establishing substantial circulation of the
foreign publications in the United States, they are not
competent to show the significance of the term “shit head”
or “shithead” to the general American public. However, at
least 24 of the excerpts are from United States
publications.5 Representative samples of these excerpts are
quoted below (with the term “shithead” or “shit head”
emphasized):
Raucous sexual and scatological content is
typically encountered in Quinn’s work; his
“Shit Paintings” and Shit Head of 1997, as well
as Incarnate of 1996, a boiled sausage filled
with the artist’s blood, are primary examples.
(Art in America, November 1998);

. . . picture may have bombed, but at least
I won’t go down in history as a spoiled,
neurotic shit-head who got a tragic
comeuppance!”
(Film Comment, September 1, 1998);

5 We should point out that the Examining Attorney submitted the
identical NEXIS evidence in each application.
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
5
It’s easier now, when they’re down. Wolfe
did it when they were up; he realized that
this worshipping of rich shit-heads had
gone too far.
(Washington Monthly, March 1988);

Kushner can’t write straight or gay
relationships without being smug. Roy
Cohn’s death by AIDS, after a public career
as [an] archconservative shithead and a
simultaneous secret life with men, still
holds interest . . .
(SF Weekly, January 24, 1001);

The effect is jarring: Jovial cartoons
suddenly face the screen and call you a
shithead.
(Slate Magazine, April 19, 2001);

. . . Schutze, in a New Times Story last
fall, admitted, “The more I looked at this
stuff, the more I thought there’s no
mystery here. These kids are little
shitheads, and they have no excuses.”
He also described the way Hollywood insisted
on giving the characters excuses for their
actions . . .
(New Times Broward-Palm Beach, July 19, 2001);

. . . reply to “Mr.” Donaldson’s letter
(February 3), it is ignorant creeps like you
who are the problem! Only a true shithead
like you would think that [of] a desert filed
with cactus, lizards and other of God’s flora
and fauna as a “shithole wasteland.”
(Phoenix New Times, February 10, 2000); and

. . . make him artist of the year-—quite a
contrast to Dr. Dre, who edges Marilyn
Manson and Celine Dion for shithead of the
decade even if his grayboy Eminem has a lot
better chance of turning Beastie than Limp
Bizkit do . . .
(The Village Voice, February 22, 2000).

Ser Nos. 75/702,008; 75/702,010; and 75/702,011
6
The NEXIS excerpts made of record by the Examining Attorney
suggest that in the United States, the term “shithead” is
used as a derogatory insult. In addition, we take judicial
notice of the following definitions of “shithead” and
“shit” from Random House Webster’s Unabridged Dictionary
(2d 1998):
shithead: n. Slang (vulgar) a stupid, inept,
unlikable or contemptible person

shit: n. Vulgar. 6. Slang: a selfish, mean
or otherwise contemptible person.

Applicant maintains that the first portion of the term
SCHITTHED’S, i.e., “schitt,” is identical to a German
surname and commonly pronounced in both the United States
and Germany as “sheet” or “skit”. Thus, according to
applicant, a number of consumers encountering the term
SCHITTHED’S will pronounce it differently than “shitheads.”
However, we note that applicant has failed to offer any
evidence to support its contention with respect to “schitt”
being a German surname and the purported common
pronunciation thereof. Further, applicant argues that
among the words beginning with “sch” on the dictionary page
relied on by the Examining Attorney, there are more words
that are pronounced with the “ski” sound than with the “sh”
sound. As noted by the Examining Attorney, however, there
is no correct pronunciation of a trademark and it is just
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
7
as likely that the term “SCHITTHED” would be pronounced
“shithead.”
Citing In re Mavety, applicant argues that the term
“SCHITTHED” must be considered in the context of the
relevant marketplace, and that applicant’s beer and ale are
products that are marketed to adults. We note, however,
that unlike the situation in In re Mavety, which involved
adult-oriented magazines that are purchased by a narrow
segment of the United States adult population, beer and ale
are marketed to, and purchased by, a cross-section of the
United States adult population. In addition, beer and ale
are advertised on radio and network television, and are
displayed in grocery stores, convenience stores, and the
like in plain view of the general consuming public. This
is in contrast to the adult-oriented magazines in In re
Mavety that are generally sold in adult-oriented
bookstores, or when sold in general news or magazine
stands, are kept behind the counter or displayed in a
special section. Moreover, in the case of the SCHITTHED’S
mark, applicant intends to use this mark in connection with
not only beer and ale, but restaurant services, mugs,
t-shirts, and hats. Clearly, the market for these goods
and services is not limited to adults.
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
8
We note applicant’s reliance on In re Hershey, 6
USPQ2d 1470 (TTAB 1988), involving the mark BIG PECKER
BRAND for T-shirts. In holding that the mark BIG PECKER
BRAND does not offend morality or raise scandal, the Board
found that the primary meanings of the word “pecker” to the
general public are innocuous, rather than vulgar. In this
case, applicant has presented no evidence that “SCHITTHED”
has any particular meaning, and the NEXIS excerpts and
dictionary entries support the Examining Attorney’s
position that “shithead” is a derogatory insult. Even if,
as applicant argues, the purchasing public would be likely
to view the phrases GRANDMA SCHITTHED’S and GRANDPA
SCHITTHED’S as references to a fictional characters, the
phrases would nonetheless be offensive.
Applicant argues that the involved marks are not
scandalous to a substantial composite of the general
public. Applicant maintains that the fact that the term
“shit head” or “shithead” appears in the magazine and
newspaper excerpts submitted by the Examining Attorney is
evidence that the term is not scandalous. A close
examination of the story excerpts reveals that most, if not
all, of the stories are in the nature of social commentary
or art or film reviews. In other words, these stories do
not evidence use of the term “shithead” or “shit head” in
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
9
ordinary discourse. Also, most of the publications in
which the stories appear are somewhat specialized in
nature; they are not general interest publications read by
a cross-section of the American public. In short, we are
not convinced that these stories are of a nature that they
have been exposed to a large segment of the American
public. Thus, the fact that the term “shithead” or “shit
head” appears therein does not persuade us that the term is
not scandalous to a substantial composite of the American
public.
Finally, applicant argues that its involved marks are
no more scandalous or immoral than other third-party marks
which the Office has allowed to register. However, as has
often been stated, each case must be decided on its own set
of facts. We are not privy to the file records of those
third-party registrations.
In sum, we believe the evidence of record is
sufficient to establish prima facie that the term
“shithead” or “shit head” is offensive to the conscience of
a substantial composite of the general public,
notwithstanding the fact that contemporary attitudes toward
coarse language are more liberal than they were just a
generation ago. See In re Tinseltown, Inc., 212 USPQ 863
(TTAB 1981) [The mark “BULLSHIT” for attaché cases,
Ser Nos. 75/702,008; 75/702,010; and 75/702,011
10
handbags, purses, belts, and wallets is scandalous].
Because the term “SCHITTHED” in applicant’s marks has not
been shown to have any particular meaning, and may well be
pronounced as “shithead,” we find that applicant’s marks
consist of or comprise scandalous matter.
Decision: The refusals to register under Section 2(a)
of the Trademark Act are affirmed.