USPTO Rejects Trademark Registration for PORNO JESUS

USPTO Rejects PORNO JESUS for its Offensive Propensity

On March 19, 2015, the United States Patent & Trademark Office (USPTO) denied a request to trademark PORNO JESUS by a “Christian pornographer” who produced adult-themed films in line with Christian beliefs. After the USPTO Examiner denied the Applicant’s initial request pursuant to Section 2(a) of the Trademark Act, and his request for reconsideration, the Applicant filed an appeal with the USPTO’s Trademark Trial and Appeal Board (the Board). The Board affirmed the denial as decided by the Examiner and its decision carries the weight of precedent.

The Legal Standard

Section 2(a) of the Trademark Act prohibits the registration of a mark that disparages “persons,” “institutions,” or “beliefs.”[1] For a mark to be denied registration based on it being “disparaging” under Section 2(a), the USPTO must determine:

1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and

2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.[2]

The Evidence

The Examiner submitted definitions of the terms “porn,” “pornographic,” “Jesus,” and “Christianity.” The Board took judicial notice of a definition of “pornography” as: “obscene writings, drawings, photographs, or the like, especially those having little or no artistic merit.” The Examiner also submitted evidence from various faith-based websites that featured passages condemning pornography.

The Applicant submitted various definitions or, more accurately, descriptions of Jesus as viewed by different, non-Christian peoples across the world. The Applicant also submitted evidence showing a sub-culture of Christian pornographers who like him, produced adult films with “Christian sensibilities.” Finally, the Applicant submitted proof of other possibly scandalous trademarks that were registered with the USPTO. The list includes:

  • HOOKERS FOR JESUS – a charitable service that worked to help the homeless, particularly women
  • REDNECK JESUS – a humorous entertainment producer focused on religious content
  • JESUS FREAK – a clothing line
  • THE DAY JESUS SPOKE HIP-HOP – an online Christian music compendium
  • WHO WOULD JESUS SUE – a producer of faith-based advocacy items

The Decision

Under the Section 2(a) two-part test, the Board first had to determine what the “likely meaning” was of PORNO JESUS. Because the Applicant and the Examiner essentially agreed on the meaning of both “Jesus” (the central figure to the Christian faith) and “porno” (pornographic, sexual material), and based on the evidence submitted, the Board determined that PORNO JESUS could only mean “Jesus of Nazareth partaking of acts related to pornographic or sexually explicit materials.” The Board said that under any context, this would be the meaning of the mark, and specifically in relation to the types of goods Applicant produced (pornographic movies geared towards Christians).

Under the second part of the Section 2(a) test, the Board had to determine if the mark would be disparaging to a “substantial composite of the referenced group.” Because “Jesus” was part of the mark, and Jesus is the key figure in the Christian faith, the Board determined that Christian-Americans were the relevant “referenced group.” Based on the evidence submitted by the Examiner that illustrated a large amount of Christian opposition to pornography, the Board concluded that the mark would offend Christian-Americans.

The Applicant argued that “JESUS” was not a religious order or a group of people, and thus there was no group that would be disparaged. The Board, relying on precedent,[3] ruled that it was not necessary for the group in question to be included in the mark, and that “Jesus” in the mark would target Christians. The Applicant also argued that the Examiner did not meet his burden to show Jesus was only connected to Christians and pointed to his own submitted evidence of non-Christians around the world who studied Jesus’s teachings and followed his example. The Board explained that more than one connection to Jesus was acceptable, because the precise objection to the registration of the mark was based on disparagement of a group of people, and Christians would be likely disparaged. In fact, pointing out other groups that revere Jesus just added more groups of people to the list of those likely to be disparaged.

The Applicant also pointed to his evidence of other potentially disparaging marks that had already been registered by the Board. In response, the Board explained that it was not bound by grants or denials of past marks. The Applicant then pointed to his other submitted evidence that showed a sub-culture of Christian pornographers who would clearly not be offended by his mark. The Board acknowledged the evidence, but drew a different conclusion from it by arguing that the evidence just proved “normal” pornography must not conform with Christian beliefs if a sub-culture is required to pair the two properly.

[1] 15 U.S.C. § 1052(a).

[2] See In re Geller, 751 F.3d 1355, 1358, 110 USPQ2d 1867, 1869 (Fed. Cir. 2014).

[3] See In re Lebanese Arak Corp., 94 USPQ2d 1215, 1217 (TTAB 2010) (where the Board held that “KHORAN” as a mark for wine disparaged Muslims who followed the teachings of the Koran and who were forbidden by their faith to drink wine).

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