Sexism, Trademarks

The Best Legal Analysis Of 'Poontang' Ever Briefed

Trademark cases can make for some goofy briefs.

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Intellectual property lawyers have all the fun. Sure, there’s a lot of quibbling over pharmaceutical formulae, but when you get into the fun world of “soft” IP, there’s all manner of exciting briefing to be had about vulgarity, offense, and evolving social mores. The clash of free enterprise, free speech, and the tyranny of the majority! These are the lawyers who assert high-profile, “sexy” legal arguments — for example, that the word “Redskins” cannot possibly give offense (best argument: Alfred Morris’s rushing stats) or failing that, that the U.S. government should not intervene to protect the sensibilities of Native Americans from speech in such matters (since it didn’t intervene to save their lives for the last couple centuries… why start worrying now?). Weighty issues.

Yet for all the heavy issues, a lot of the time, litigating these marks makes for some goofy-sounding briefs. Behold the lawyers who spent more billable hours researching poontang than the Peeping Tom lawyer.

Of course, there’s nothing goofy about the underlying dispute: an all-female Colorado band/comedy performance that goes by the name “Harpoontang.” Here’s the band singing about their hymens. Actually, is “hymen” a mass noun like “moose” or “fish”? Can we get a plurality ruling here?

In any event, Harpoontang found their trademark application rejected by the USPTO as offensive for including the word “poontang.” And there’s where the briefing becomes — by the nature of the trademark process — a little goofy, because when lawyers devote 46 pages of legalese to the historical evolution of the term “poontang” and its proper contextual role in the music scene, one can’t help but chuckle that the government is forcing legal professionals to spend time on a college linguistics thesis.

HARPOONTANG is a composite word combining two distinct words, “harpoon” and “tang,” and telescoping two words, “harpoon” and “poontang.” TMEP 1213.05(a)(i). As such, it is considered unitary. Id. It is incorrect to separate out any single word comprising a telescoped word, whether it is “harp,” “harpoon,” “poon,” “tang,” or “poontang.” The mark HARPOONTANG is to be considered for registration as a single unitary word, and not dissected in search of scandalous meanings. Under the anti- dissection rule, a composite mark is tested for its validity and distinctiveness by looking at it as a whole, rather than dissecting it into its component parts.

Now, analyzing the word as a whole does point toward at least one vulgar definition: a cooption of the proud tradition of the daring whalers of the Eastern seaboard for the purpose of scamming on overweight women. Well… yeah, that seems to make some contextual sense. But the term was also used by the creators of South Park in their film Orgazmo for turning a dildo into a harpoon, which isn’t as derogatory. Given that Harpoontang comes out of South Park’s home base of Colorado, it’s much more likely the women were opting for this definition.

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Even if the term can be offensive, that doesn’t mean it is for the purposes of trademark protection. The precedent in this area is damning. Citing the Gray decision:

While the Examining Attorney has shown that the term “cum” has been used in connection with sexually graphic activities, he has not established that the term itself is vulgar or offensive.”

That’s right up there with Marbury v. Madison, isn’t it?

But even more important than the etymology of ‘tang is the fact that the mark should be judged in its proper marketplace and a group of women singing ironic songs in a club doesn’t feel like a market that will get its proverbial panties in a bunch over this name:

Accordingly, Applicant’s use of the term “poontang” within Applicant’s mark HARPOONTANG must be judged in the entire context of the mark’s use – not merely as described in archaic slang books and dictionaries that no longer represent commonly held views and does not reflect a substantial composite of the relevant market.

Applicant Laura Goldhamer is a woman. Applicant’s musical group, Harpoontang, comprises four women (Genny, Sarah, Esme and Laura). [Denial of Request for Reconsideration, p. 5] As the Board will see from the interview evidence of certain band members provided by the examining attorney and discussed further in Part C below, these women are satiric, ironic, sharp, droll, funny, and sassy.

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And yet, despite all this, the USPTO is still spending our tax dollars fighting Harpoontang by labeling the band’s proposed mark “scandalous.”

Jesus, the USPTO must hate Pussy Riot more than Vladimir Putin.

(Check out the whole brief on the second page.)

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