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TTB’s gonna wash your mouth out with soap….

January 26, 2016

Great article by attorney Tom Dietrich from Arizona titled “NSFW beer trademarks are coming – will the TTB stand aside?”

“Jack Mormon. The Real Shit. Nut Sack Double Brown Ale. Each were applications for beer-related trademarks the USPTO rejected as disparaging or scandalous. But no more. Last week the Federal Circuit held the rule barring registration of marks deemed disparaging violates the First Amendment right to free speech. Will this pave the way for protectable rights in NSFW beer marks and labeling?

[T]he denial of trademark benefits ‘creates a serious disincentive to adopt a mark which the government may deem offensive or disparaging.’ The result, the court explained, is that ‘the government’s ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.’

Similar to the Lanham Act, the TTB’s COLA regulations, 27 C.F.R. § 7.29, prohibit labels containing ‘any statement that is disparaging of a competitor’s products’ or ‘any statement, design, device, or representation which is obscene or indecent.’ Labels are also banned if they contain any name, statement or design relating to the American flag or the U.S. armed forces. The TTB regularly puts the kibosh on labels under these regulations for everything from depicting a cartoon deemed an attractant to kids to a picture of a pot leaf to using a ‘nonaccepted term’ to describe a beer. Labels are reviewed by a TTB officer with complete discretion over how the rules are applied. Like a trademark examiner, the TTB officer has the ability to prevent a brewery’s chosen mark from ever seeing the market.

The Federal Circuit’s ruling doesn’t directly apply to the TTB, but the ruling — that a government ban on expressive content with a particular message is unconstitutional if the ban deprives an applicant of a substantial benefit — could be the death knell for certain TTB prohibitions.”

Read more here: NSFW beer trademarks article by Tome Dietrich

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