'Middle Finger' Bottle Design is Scandalous

The Trademark Trial and Appeal Board (the "TTAB"), in a relatively rare decision that a trademark is "scandalous" has refused registration to a trademark for a bottle shaped like a hand with its middle finger extended upwards as pictured below.

A mark is considered scandalous if a substantial composite of the general public would consider the mark offensive and vulgar. In making the determination in this case, the TTAB looked to dictionary definitions of "the finger" and "finger (gesture)" which defined the act as an obscene hand gesture and articles explaining why the middle finger is considered offensive. The TTAB held that the definitions and magazine articles established that the mark is scandalous to a substantial composite of the general public. Further, the TTAB worried that since the since the application covered alcoholic and non-alcoholic beverages, which are general consumer products, the mark would be visible to children.