By Tamar Duvdevani

This past Monday October 29, the TTAB in a non-precedential decision allowed registration of NUT SACK DOUBLE BROWN ALE for “beer” in International Class 32.  As one might surmise, the Trademark Examining Attorney’s rationale in rejecting the application was the inclusion of immoral/scandalous matter, to wit, that the “term ‘Nut Sack’ is a term that is offensive to a substantial composite of the general public.”

In allowing registration, the TTAB explained that despite the vulgar connotation of “nut sack,” the word “nut” in connection with beer “will clearly describe a flavor or style of ale, rather than being an obvious reference to testicles.  This likely interpretation is reinforced by the final three words of the applied-for mark.”  The Board further stated that even if the term is “taboo in polite society,” it is not so shocking or offensive within the meaning of 15 U.S.C. § 1052(a) to be denied registration.

Also, throwing a bone to Applicant in a seemingly gratuitous paragraph, the Board defended the use of slang expressions, observing that “many slang terms come into the lexicon because the formally correct, clinical word for the thing itself is deemed uncomfortably potent,” and that with regard to “parts of the human body,” speakers adopt slang terms “precisely because they seem less intense, less indelicate, than the formally correct or technical terminology.”  Sex-ed teachers everywhere are groaning in consternation.

Here, Applicant tried to convince the Board that the selected term was an innocent reference to the nutty taste of its beer and the sack used during the brewing process.  Overall, this author agrees that the mark should be allowed registration, and applauds the TTAB for recognizing that the consumer of the product would, at worst, find the name to be an attempt at humor.  However, given Applicant’s representations as to the innocuous meaning of the term and the purpose behind its selection, one would venture a guess that it will not be seeking registration of its logo and slogan (shown above).

The decision is In re Engine 15 Brewing Co., LLC, Serial No. 86038803 (TTAB October 29, 2015).