TWATTY GIRL not immoral based on British English use

In In re Ava Watkins, the US Patent and Trademark Office's Trademark Trial and Appeal Board (TTAB) has reversed a refusal to register the mark TWATTY GIRL, finding it not immoral or scandalous.

Ava Watkins, an individual, applied to register TWATTY GIRL for "cartoon strips, cartoon prints and newspaper cartoons". Registration was refused when the examining attorney determined that the mark constituted immoral or scandalous matter under Section 2(a) of the Lanham Act. The examining attorney reasoned that the general public would consider the term 'twatty' to be the adjectival form of the word 'twat', a vulgar reference to a woman's genital area. Supporting the conclusion were several dictionary definitions, pages from websites, and excerpts of articles from the NEXIS database showing use of the term in a manner consistent with the examining attorney's interpretation. Moreover, the examining attorney found that the additional term 'girl' only enhanced the scandalous connotation of the mark.

Watkins appealed the refusal, arguing that the examining attorney had incorrectly viewed the mark that was the subject of her application since the subject mark included the term 'twatty', not merely 'twat'. She introduced evidence of British English definitions for both 'twatty', meaning daft, and 'twat', meaning idiot. Watkins also relied on Google searches of the two terms, showing use of the term 'twatty' in the British English context, and the term 'twat' as an acronym for such things as the 'Texas Women Anglers Tournament' and 'The War Against Tobacco'. Thus, Watkins contended, the mark did not constitute "immoral or scandalous matter" because it was not a vulgar word; it did not consistently connote a vulgar meaning and it carried an alternative, non-vulgar meaning.

The TTAB agreed with Watkins. Noting that the mark included the term 'twatty', not 'twat', it found that the words were different in sound and meaning. Moreover, the TTAB agreed that the subject term carried a non-vulgar meaning in British English, and held that although the analysis as to whether something is immoral or scandalous must be "made from the standpoint of a substantial composite of the general public in the United States", there is a "sizeable segment" of the US public that is familiar with British English or has access to internet websites of British origin. Accordingly, the TTAB gave probative weight to the non-vulgar meaning in British English, and found doubt as to the immoral or scandalous nature of the mark. Since doubt in such a case must be resolved in favour of the applicant, the examining attorney's refusal to register was reversed.

Timothy J Kelly and Jenning Kohlberger, Fitzpatrick Cella Harper & Scinto, New York