Advanced Armament Corp., LLC

Trademark Trial and Appeal Board

Nov 29, 2013

No. 77770899 (T.T.A.B. Nov. 29, 2013)

Mailed: Hearing:
November 29, 2013 February 7, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Advanced Armament Corp., LLC
________

Serial No. 77770899
_______

Glenn D. Bellamy of Wood Herron & Evans LLP for Advanced
Armament Corp., LLC.

Giselle M. Agosto-Hincapie, Trademark Examining Attorney,
Law Office 102 (Mitchell Front, Managing Attorney).
_______

Before Holtzman, Taylor, and Wellington,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Advanced Armament Corp., LLC seeks registration of the
following mark for “silencers for firearms”:

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77770899
2
In the application, the mark is described, in part, as
depicting “the upper torso of the Statue of Liberty holding
a pistol with a silencer overhead in place of the torch...”
The wording ARMAMENT CORP., SILENCERS, and MADE IN THE USA
has been disclaimed.
1

This appeal from the final refusal of registration of
the mark involves Section 2(a) of the Trademark Act of
1946, 15 U.S.C. § 1052(a), which precludes registration of
marks that comprise “immoral, deceptive, or scandalous
matter” or that “may disparage...persons, living or dead,
institutions, beliefs, or national symbols, or bring them
into contempt, or disrepute.” Specifically, the examining
attorney argues that the Statue of Liberty is “a
universally recognized symbol of peace and welcome” (Brief,
p. 4); that “[l]ike guns, silencers are polarizing objects,
illegal in many jurisdictions, and surrounded by a cloud of
controversy that they are perceived as contributors to
violence and crime” (Brief, p. 6); and that the “greeting
by the Statue of Liberty waving a pistol with an attached
silencer changes the symbolic context of the Statue of
Liberty from a welcoming beacon of light to a threatening
symbol...result[ing] in the image rising to the level of

1
The application was filed June 30, 2009, claiming first use,
and first use of the mark in commerce, as of March 31, 2008.
Serial No. 77770899
3
scandalous and offensive matter that is shocking to the
sense of decency and propriety” (Brief, p. 20). Put
succinctly, the examining attorney argues that the
“combination of the Statue of Liberty plus a silencer in
place of its torch, plus a banner displaying the word
SILENCERS is shocking, offensive and disparaging” to a
substantial composite of the population and should thus be
refused registration. Brief, p. 20.
After applicant filed its appeal, briefs were filed
and an oral hearing was held.
Post-Appeal Events and Recently Submitted Evidence
On October 3, 2012, this appeal was suspended and the
application file was remanded at the request of the
examining attorney to allow for issuance of an Office
action asserting an additional basis for refusing
registration.
2
The examining attorney then issued a refusal
under Section 2(d) of the Trademark Act based upon a
likelihood of confusion with the following then-registered
mark:

2
After the hearing, the application was reassigned to a new
examining attorney who requested the remand on behalf of the
Office and issued the subsequent Office action. However, the
application was later reassigned to the original and current
examining attorney (identified in the caption of this decision).
Serial No. 77770899
4

for “retail store and on-line retail store services
featuring firearms, firearms accessories, firearms parts,
telescopic firearms sights and body armor” in International
Class 13. Applicant, in turn, successfully petitioned to
cancel the cited registration. Thus the Section 2(d) basis
for refusal was rendered moot and the appeal was ready for
resumption.
Then, on May 15, 2013, the examining attorney filed a
second request to remand the application “to allow for the
inclusion of new and relevant evidence that was not
previously available” and argued that “recent events
involving gun violence and the ensuing public expressions
of opinion on the issue” would impact public perception of
applicant’s mark. The Board ultimately granted the second
request for remand, thereby allowing certain evidence into
the record, and also allowed both applicant and the
examining attorney to file supplemental briefs. The
examining attorney and applicant both submitted additional
evidence with their respective briefs. As our primary
Serial No. 77770899
5
focus necessarily is on the sufficiency of the examining
attorney’s evidence, as discussed infra, we note that the
following materials proffered by the examining attorney
have been considered:
1. “Gunmakers and the NRA Bet Big on Silencers. What
Could Go Wrong?” obtained from Mother Jones
website(www.motherjones.com) and dated March 19, 2013;

2. “U.S. has long recent history of mass shooting”
obtained from the New York Daily News
website(www.nydailynews.com) and dated December 14,
2012;

3. “U.S. Shooting Deaths Since Sandy Hook Top 100”
obtained from the Huffington Post website
(www.huffingtonpost.com) and dated December 21, 2012;
and

4. “What the Public Really Thinks About Guns” obtained
from the Center for American Progress website
(www.americanprogress.org) and dated March 27, 2013;

5. “Two new polls show rise in support for gun
control after Newtown, Conn., massacre” New York Daily
News (obtained from www.nydailynews.com), December 20,
2012;

6. “After Newtown – Public Opinion on Gun Policy and
Mental Illness” The New England Journal of Medicine
(obtained from www.nejm.org), March 21, 2013;

7. “About High-Capacity Ammunition Magazines” Progressive
Majority Action Fund (obtained from
www.progressivemajorityaction.org), no date provided
indicating when material was made available;

8. “Silencers: The NRA’s latest big lie” Salon News
(obtained from www.salon.com), December 30, 2012;

9. “Gun control and the school shooting in Newtown (17
letters)” Denver Post (obtained from
www.denverpost.com), December 15, 2012;

Serial No. 77770899
6
10. “From sonic boom to light whisper: Texas
legalizes silencers for hunting” News-Journal
Longview, Texas (obtained from www.news-journal.com),
May 15, 2012;

11. “...with silencers also added into the mix” Fort
Wayne, IN Journal Gazette (obtained from
www.journalgazette.net), January 16, 2013;

12. Press Releases from U.S. Attorney’s Office for
the Eastern District of California, April 23, 2013 and
Northern District of Georgia, May 23, 2013;

13. News releases from Federal Bureau of
Investigation (FBI) San Diego Division (February 13,
2013), New Haven Division (April 9, 2012), Atlanta
Division (August 2, 2012);

14. “Gemtech” listing of state laws “concerning
ownership and hunting with use of [silencers or
suppressors]” as of January 2013;

15. “Time Warner bans some gun ads” UPI, January 19,
2013;

16. “Ad for rifle draws complaint, store owner
respects request” The Daily Gazette, December 19,
2012;

17. Google AdWords policy involving weapons;

18. “Connecticut Newspaper Extremely Sorry for Gun Ad
Next to Sandy Hook Story” New York News & Features,
January 3, 2013;

19. “Comcast bans gun, ammo ads” USA Today, March 22,
2013;

20. “Little Red Riding Hood and AR-15’s? New Ads
Contrast School Bans and Gun Regulations” Yahoo!
(obtained from www.yahoo.com), April 15, 2013;

21. “Madonna on MDNA tour with AK-47 rifle, pistol;
ignores Colorado shooting victims” The Examiner
(www.examiner.com), July 22, 2012;

Serial No. 77770899
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22. Analysis of immigration-theme cartoons (obtained
from www.newiesthirteen.wordpress.com)

23. Comments on image of Statue of Liberty holding a
handgun (obtained from www.pinterest.com);

24. Comments on “Graphic Advertisement (PSA) – Gun
Control” posted on website www.tjmorano.com, February
12, 2013; and

25. “Snellville Duo Stop Man Suspected of Planning
Terrorist Attack in Gwinnett” Snellville Patch,
February 26, 2013.

Section 2(a) and the Ground for Refusal
Throughout prosecution, the examining attorney has
articulated the refusal of registration under Section 2(a)
of the Act by describing the mark both as “scandalous” and
as “disparaging” of the Statue of Liberty.
3

As previously noted, Section 2(a) precludes
registration of a mark that, inter alia, “[c]onsists of or
comprises immoral, deceptive, or scandalous matter; or
matter which may disparage or falsely suggest a connection
with persons, living or dead, institutions, beliefs, or
national symbols, or bring them into contempt, or
disrepute.” These two provisions of Section 2(a),
separated by a semi-colon, technically may be asserted as
separate bases for refusing registration depending on the

3
No refusal was made under Section 2(b) of the Act, which
proscribes registration of marks consisting or comprising
insignia of the United States. See TMEP § 1204.02(c) (statues,
such as the Statue of Liberty, are not government “insignia”
within the meaning of Section 2(b)).
Serial No. 77770899
8
mark in issue. Whether a mark comprises “immoral” or
“scandalous” matter is viewed from the standpoint of a
substantial composite of the general public, whereas the
question whether a mark “may disparage” – as applied to
“persons” or “beliefs” – is viewed from the perspective of
the referenced persons or group, e.g., an ethnic or
religious group. See In re Lebanese Arak Corp., 94 USPQ2d
1215 (TTAB 2010) for discussion concerning the distinction
between the two subsections.
4
Where the object of purported
disparagement is, as here, a statue that is viewed as a
symbol of America and its people, we believe we must view
the issue from the perspective of the American public as a
whole, and not a particular subset thereof. In addition,
the examining attorney, in refusing registration, has
essentially provided the same rationale for scandalousness
and disparagement. Specifically, the examining attorney
argues that applicant’s mark fundamentally alters the
essence of the symbol in such a way that a substantial
composite of the public would consider the mark to present
a shocking or offensive juxtaposition. Thus, in this case,
a conclusion that the mark is scandalous would mean that

4
As the Lebanese Arak decision explained, in cases involving
asserted offense to the sensibilities of an ethnic or religious
group, the proper refusal is disparagement, not that the mark is
scandalous, and alternative refusals would not be appropriate.

Serial No. 77770899
9
the mark is disparaging as well. See, In re Old Glory
Condom Corp., 26 USPQ2d 1216, fn. 4 (TTAB 1993)(Board found
applicant’s mark depicting an American flag in the shape of
a condom not to be scandalous and this also “subsumes a
finding that the mark is not disparaging” because the
scandalous refusal “was based, in large part, on [a]
finding that the mark disparages the flag.”). And we
further point out that, in most cases involving an
assertedly offensive adaptation of a national symbol, the
preferred refusal to be made is that the mark is
scandalous. See id.
5
Accordingly, we make our findings
from the perspective of the general public and look to
whether a substantial composite thereof would perceive
applicant’s mark to be a scandalous adaptation of the
Statue of Liberty.
The U.S. Patent and Trademark Office bears the burden
of proving that a trademark falls within any of the
prohibitions of Section 2(a). In re Mavety Media Group

5
To be clear, and as noted in Old Glory, “scandalous” and
“disparaging of a national symbol” remain viable, separate
grounds for refusing registration of a mark. Indeed, in
circumstances different from those in this case, a mark may be
found to be disparaging of a national symbol without any
scandalous or shocking qualities being argued or attributed to
the mark. See, e.g., In re Anti-Communist World Freedom
Congress, Inc., 161 USPQ 304 (TTAB 1969) (mark consisting of
hammer and sickle with a cross drawn thereon found disparaging of
a national symbol).

Serial No. 77770899
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Ltd., 33 F.3d 1367, 31 USPQ2d 1923, 1925 (Fed. Cir. 1994).
See also In re Standard Electrik Lorenz A.G., 371 F.2d 870,
152 USPQ 563, 566 (CCPA 1967).
For purposes of deciding whether applicant’s mark
comprises “scandalous” matter within the meaning of Section
2(a), we find the Board’s decision in Old Glory instructive
because the circumstances in that case are similar to those
in this appeal.
6
In Old Glory, the Board considered whether
a mark comprising, in part, an image presenting the
American flag in the shape of a condom “can be
characterized as ‘[g]iving offense to the conscience or
moral feelings’ or ‘shocking to the sense of decency or
propriety.’” In re Old Glory, 26 USPQ2d at 1220, citing In
re Riverbank Canning Co., 95 F.2d 327, 37 USPQ 268 (CCPA
1938). Similarly, in this case, we are faced with the
question of whether the Statue of Liberty holding a pistol
with a silencer will be considered by a substantial
composite of the American public – which is “not
necessarily a majority,” see, e.g., In re Fox, 702 F.3d
633, 105 USPQ2d 1247, 1248 (Fed. Cir. 2012) – as “giving

6
There are more recent precedents involving Section 2(a)
“scandalous” refusals; however, these cases involved marks that
contained sexually explicit terms or images requiring assessment
of whether the objectionable term or image would be considered
“vulgar” by a substantial composite of the public. See, e.g.,
Boston Red Sox Baseball Club Limited Partnership v. Sherman, 88
USPQ2d 1581 (TTAB 2008). The examining attorney does not argue
that applicant’s mark should be considered “vulgar.”
Serial No. 77770899
11
offense to the conscience or moral feelings” or “shocking
to the sense of decency or propriety.” Id. We assess the
mark as a whole in light of contemporary attitudes and in
the context of applicant’s goods, i.e., silencers. Id.
Finally, we note that, in cases under Section 2(a),
the Federal Circuit has approved an approach that allows
publication of marks where the Board may harbor doubt that
the record supports a finding of scandalousness or
disparagement. See In re Mavety Media Group Ltd., 33 F.3d
1367, 31 USPQ2d 1923, 1928 (Fed. Cir. 1994) (vacating the
Board’s affirmance of a refusal and noting its preference
for the approach taken by the Board in In re In Over Our
Heads Inc., 16 USPQ2d 1653, 1654-55 (TTAB 1990)).
Arguments
In her main appeal brief and in support of the
refusal, the examining attorney relies on various materials
submitted during the prosecution of the application,
including the following: printouts from applicant’s
website (“technical questions”); a printout from Western
Criminology Review titled “Criminal Use of Firearm
Silencers”; printouts from several third-party websites,
e.g., “Pyramyd Air Gun Mall” containing the article “Airgun
silencers: What’s the big deal?” (www.pyramydair.com); a
printout of an article “Defining ‘use’ of a firearm”
Serial No. 77770899
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(Journal of Criminal Law and Criminology, Spring 1997);
printouts from various websites containing photographs and
information regarding the Statue of Liberty; and printouts
from various websites, blogs, and articles involving the
use of guns and/or silencers (also referred to as
“suppressors”). The examining attorney specifically points
to the following submissions for purposes of “illustrating
that the depiction of guns with the Statue of Liberty is
offensive to a substantial composite of the general
public”:
Two excerpts from publications containing negative
reactions to a previously-published editorial cartoon
that purportedly shows (the actual image is not shown
in the excerpt) the Statue of Liberty holding a gun to
its head.
7

An article excerpt involving the unveiling of a
“Diallo Mural” artwork (actual image of the mural is
not shown). In the article, a person discussing the
mural states, “[i]t’s pretty good art, but he could
have avoided some of the negative stuff...Cops wearing
hoods? Not all cops are bad. And we don’t need the
kids seeing the Statue of Liberty holding a gun.”
8

An article printout concerning a Michigan woman who
petitioned Mattel Inc. in opposition to a “Road Wars
Liberty Base” toy that is described as featuring “a
battle-scarred Statue of Liberty with bomb holes,
graffiti, a missile launcher hidden behind her face
and gun mounts in her crown. A terrorist’s attack

7
From The Austin American-Statesman, Editorial (July 11, 2008)
and The Tulsa World (July 13, 2008). Excerpts attached to Office
action issued on May 26, 2010.

8
From Daily News (New York), April 25, 2001. Excerpt attached
to Office action issued on May 26, 2010.

Serial No. 77770899
13
helicopter also is included, which can set off fake
explosions at the statue’s base.”
9

A website printout describing a fictitious world in
which “the Statue of Liberty holding a rifle is one of
the symbols of [a resistance organization].”
10

Printouts from a blog site containing reactions to
graffiti purportedly (actual image cannot be viewed in
printouts) showing the Statue of Liberty with a rifle
in place of the torch.
11

A website review, apparently written in London,
England, of a t-shirt depicting the Statue of Liberty
holding a pistol into the air, instead of the torch.
The reviewer states, “[o]bviously, this isn't your
Grandma’s Statue of Liberty.” One response to the
review mentions “Good T-shirt and all the better for
not having a slogan or statement on it. Makes it more
open to different interpretations. However, maybe not
the shirt to wear when visiting the US Embassy.”
12

In her supplemental appeal brief and in conjunction
with her submission of the supplemental evidence, the
examining attorney argues that there has been a “shift in
public opinion after recent high-profile gun violence” and
that “new stricter laws against guns reflect negative
public perception” of firearms. Supp. Brief, at pp. 3 and

9
From The Argus Press (November 17, 1995). Printout attached to
Office action issued on May 26, 2010.

10
From NSWIKI website page “The Secular Resistance”
(www.nswiki.net). Printout attached to Office action issued on
December 15, 2010.

11
From www.blogger.com, “Iowa City Graffiti (Statue of Liberty)”.
Printout attached to Office action issued on December 15, 2010.

12
“Liberty by Akomplice Clothing [review]” (www.robotroyalty.com)
attached to May 26, 2010 Office action.

Serial No. 77770899
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7, respectively. In support, she points to online articles
and other commentary as reflective of recent increased
public support for stricter gun ownership laws. She also
notes recent reactions to guns being used in advertisements
and other media and asserts that “if contemporary attitudes
reveal that people are offended by seeing a picture of a
gun in an ad, a substantial composite of the public is
likely to be shocked and offended upon seeing an image of a
gun with a silencer in the arms of the country’s symbol of
peace and welcome, i.e., the Statue of Liberty.” Id. at p.
10. Finally, the examining attorney references certain
materials with images depicting, in part, the Statue of
Liberty holding a gun and relies on a few of the posted
reactions to these images as showing that “public opinion
again sides with the negative connotation of an image of a
national symbol like the Statue of Liberty with a gun.”
Id. at p. 11.
Applicant is a licensed manufacturer and seller of
silencers, founded in 1994 by Mr. Kevin Brittingham.
According to Mr. Brittingham, silencers are “legally
purchased and used in a variety of applications, most
commonly for the purpose of hearing protection.”
Serial No. 77770899
15
Brittingham Dec., p. 4.
13
He further explains that other
hearing protection measures, e.g., in-ear plugs or over-
the-ear muffs, may be impractical or even unwanted because
“[w]hen a military or law enforcement unit enters an
enclosed area where gunfire may be necessary, it is
dangerous to impair their ability to hear sounds made by a
suspect being pursued.” Id. Approximately 50% of
applicant’s sales of silencers are made to military or
civilian law enforcement agencies. Id. The manufacture
and sale of suppressors or silencers in the United States
are regulated by the Federal government; however,
approximately 12 states and the District of Columbia
prohibit the sale thereof to private individuals.
In response to the refusal of registration of its
mark, applicant argues that “the image of the Statue of
Liberty in Applicant’s mark respectfully depicts the
statue’s serene face, is in no sense vulgar, and does not
disparage or ridicule this national symbol of freedom.”
Response to Office action (March 12, 2010), p. 5.
Applicant explains that when it commissioned development of
the artwork comprising the applied-for mark in 2008, it
“chose the elements of the applied-for design with care,

13
Submitted with March 12, 2010 response to Office action.

Serial No. 77770899
16
and with the intention of creating a decidedly patriotic
impression,” id., p. 8.
14

In addition to the declaration of its president,
applicant submitted three signed declarations from third-
party licensed sellers of firearms and silencers, including
applicant’s goods; various other materials concerning the
legal use of silencers; copies of trademark applications
and registrations for marks comprised, in part, of the
Statue of Liberty for various goods and services; and other
materials that applicant argues are relevant to the
public’s perception of its mark.
Applicant argues that the supplemental evidence
submitted by the examining attorney on remand does not
support the scandalous refusal because “the mark must be
considered in the context of the marketplace and as applied
to only the goods or services described in the application
for registration.” Supp. Brief at p. 3. (Emphasis supplied
in applicant’s brief). Applicant asserts that the evidence
showing “deeply divided public sentiment on gun rights or
gun control in general says little to nothing about public
opinion regarding silencers nor, more specifically, about

14
In the absence of evidence to the contrary, the Board presumes
a proper intent by an applicant. In the end, however, such
intent is irrelevant if the evidence supports a refusal of
registration. Cf. J & J Snack Foods Corp. v. McDonald’s Corp.,
932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991).
Serial No. 77770899
17
how the public views Applicant’s mark.” Id. at 6. As to
the three different images of the Statue of Liberty with a
gun made of record by the examining attorney, applicant
points out that several online posted reactions to one such
image were actually positive, e.g.: “Having the freedom to
protect our freedom, that is beautiful”; “You only have
Liberty as for long as you can defend it. Awesome image.”;
“we would never have become a country, if we had never
fought for it.” Applicant suggests that these
“interpretations would be at least as likely to apply to
Applicant’s mark as those ascribed by the Examining
Attorney.” Id. at 11. Applicant argues that the two
online publications depicting the Statue of Liberty with a
gun are being used in totally different contexts such as
immigration policy and advocating gun control and thus are
“inherently designed to be provocative and evoke an
emotional reaction.” Id. at p. 13. Finally, applicant
attacks several statements made by the examining attorney
in her supplemental brief as either unsubstantiated or
misconstruing the evidence. For example, applicant takes
issue with the examining attorney’s assertion that “the
association between silencers and criminal activities is
supported by the recent revamping of gun legislation”
(examining attorney’s Supp. Brief, p. 8) and argues that
Serial No. 77770899
18
“[t]here is absolutely no evidence in the record that any
recent legislation – proposed or enacted – relates in any
way to further restricting ownership of silencers or makes
any association between silencers and criminal activities.”
Id. at p. 9.
Holding
Based on our review of the entire record before us, we
are not “free of doubt” that applicant’s mark will be
perceived as scandalous by a substantial composite of
Americans. Rather, the record before us is mixed as to
whether a “substantial composite” of the American people
would view this mark as scandalous or, as applicant argues,
as a gesture of patriotism. We readily note that the
issues involving the ownership of firearms and their use
are frequently the subjects of debate amongst Americans and
increasingly so in light of recent, high-profile shootings
and Supreme Court decisions concerning the Second Amendment
right to bear arms. Nevertheless, we are not convinced by
the examining attorney’s evidence that any objections by
some, or even perhaps many, to firearms in general
necessarily equate to objections to silencers in
particular; or unquestionably require us to conclude that
applicant’s mark will rise to the level of “giving offense
to the conscience or moral feelings” or be “shocking to the
Serial No. 77770899
19
sense of decency or propriety” of a substantial composite
of Americans.
The record is replete with evidence, and there is no
real dispute, that the Statue of Liberty is perceived as a
welcoming, national symbol of liberty and conjures many
other positive feelings among Americans. The record also
establishes that it is not uncommon for persons to adopt
and/or register marks incorporating the Statue of Liberty
holding an object, e.g., a cup of coffee or football, in
place of the torch, thereby suggesting a connection with
goods and/or services being offered for sale. Such marks
utilize the Statue of Liberty because they are clearly
intended to engender a sense of patriotism, Americana, or,
perhaps of New York City, where the statue is located, for
those who would use or purchase the associated goods or
services. We acknowledge that most examples of such marks
in the record involve fairly innocuous objects in place of
the Statue’s torch and that a handgun with a silencer might
not be viewed as innocuous by all. Moreover, the record
does indeed show there is a negative image associated with
silencers when discussed in connection with criminal
activity. On the record before us, however, we cannot
determine what fraction of those who associate silencers
with criminal activity may nevertheless not view the mark
Serial No. 77770899
20
as scandalous. In this regard, we note that the mark does
not depict the Statue of Liberty in a threatening pose or
in any manner suggestive of criminal activity. Indeed, it
may be viewed by many as suggestive of, and consistent
with, the right to bear arms that is enshrined in the
Constitution. The disclaimed wording MADE IN THE USA,
appearing below the statue, would seem to reinforce such a
view.
We disagree with the examining attorney’s suggestion
that the mark is somehow more offensive than it would be if
it only showed the Statue of Liberty holding a gun, because
of the inclusion of the silencer and the banner design
containing the term SILENCERS. See Brief, p. 9 (“the
Statue of Liberty is not just holding a gun, but a gun with
an attached silencer.... Furthermore, the statue is
displayed enveloped by a banner that prominently reads in
large letters SILENCERS.”). We do not believe that the
record before us supports the examining attorney’s
suggestion. Indeed, we note that the word SILENCERS and
the depiction of the product may well be viewed as a
descriptive or generic reference to the actual goods.
Evidence of personal reactions to applicant’s mark is
limited to the declarations of applicant’s president, Mr.
Brittingham, and three third-party retailers of firearms
Serial No. 77770899
21
and silencers. While it is clear that our analysis must
not be limited to the views of purchasers of firearms or
those affiliated with the sale of silencers, firearms and
their accessories are available for purchase in the United
States, albeit through regulated purchasing regimes in the
various states, and we cannot ignore the declarations of
record by retailers of such goods. They do have probative
value. By way of these declarations, Mr. Brittingham and
the three third-party sellers of applicant’s silencers aver
that “the logo has been enthusiastically received in the
industry and by customers.” In addition, these third-party
sellers and applicant’s president have declared that they
are unaware of any negative reaction to applicant’s mark
being used in connection with silencers or otherwise. We
recognize that we cannot construe these conclusory
declarations as necessarily reflecting the perceptions of a
majority or even a substantial composite of Americans.
Nonetheless, the statements of Mr. Brittingham and the
retailers have some modicum of probative value. And we
remain cognizant of the fact that it is not applicant’s
burden to show that its mark is viewed positively by a
substantial composite of Americans, but it is the Office’s
burden to show the opposite.
Serial No. 77770899
22
The evidence submitted by the examining attorney
involving negative reactions to depictions of the Statue of
Liberty with handguns or in connection with violent imagery
does not dispel our doubt that applicant’s mark should be
refused registration on the basis of scandalousness. The
website and article excerpts do not deal with the mark at
hand and are few in number.
15
Indeed, several evidentiary
submissions, as noted in the description of the record, do
not even contain a visual depiction of the Statue of
Liberty being discussed. It is thus difficult, if not
impossible, to fully understand the context of the reported
negative reactions or whether such reactions would extend
to the image in applicant’s mark. Based on certain
descriptions provided in the articles, the Statue of
Liberty is being portrayed in these other instances in ways
that are very different from that in applicant’s mark. For
example, the Statue of Liberty cartoon is described as
showing the statue holding a gun to her own head. This
image obviously presents a disturbing message and is likely
to evoke a significantly different reaction than that of

15
The Board acknowledges that it is not always possible, and
perhaps may be difficult, for examining attorneys to find
evidence involving public reaction to the actual applied-for
mark. The Office’s evidentiary resources are limited and do not
include taking surveys of individuals for purposes of showing how
specific marks will be perceived.

Serial No. 77770899
23
applicant’s mark. We are unsure, however, how that image
informs the issue at hand. Similarly, the toy described as
“a battle-scarred Statue of Liberty with bomb holes,
graffiti, a missile launcher hidden behind her face and gun
mounts in her crown,” being attacked by a “terrorist”
helicopter, suggests a violent scene of the statue being
attacked; it cannot be compared to applicant’s mark for
purposes of attempting to gauge the reaction of the general
public. The supplemental evidence submitted by the
examining attorney on remand is no different. Applicant is
correct that these depictions of the Statue of Liberty
holding a gun are either significantly different from
applicant’s mark in context (and contain other inflammatory
matter) or that the negative reviews of one such image were
mixed with several being positive. We certainly concur
that the “immigration and undocumented workers” cartoon
cannot be fairly compared to applicant’s mark given the
additional matter in the cartoon and the context in which
it is being shown. Specifically, the description under the
cartoon provides: “the Statue of Liberty is shown holding
a gun and a flaming torch, about to light a pile of sticks
on fire. An illegal immigrant is tied to the top of the
stick pile…” A cartoon such as this, being used for
political purposes, and which openly depicts violence and
Serial No. 77770899
24
criminal activity, will clearly draw very different
reactions than applicant’s mark being used in connection
with the legal sale of silencers.
The mixed record in this case leaves us with doubt
about whether applicant’s mark gives “offense to the
conscience or moral feelings” or is “shocking to the sense
of decency or propriety” in the minds of a substantial
composite of Americans. This leads us to the conclusion
that it would be prudent, under the circumstances, to
permit the mark to proceed to publication and, if a person,
entity, or group “find[s] the mark to be scandalous . . . ,
an opposition proceeding can be brought and a more complete
record can be established.” See Mavety Media, 33 F.3d
1367, 31 USPQ2d at 1928.
Decision: The refusal to register is reversed.