## Facts

- Old Glory Condom Corp. applied to register “OLD GLORY CONDOM CORP & design” on the Principal Register for “prophylactics (condoms).”
- The design depicted a condom decorated with stars and stripes suggestive of the U.S. flag; the imagery appeared on product packaging.
- The packaging included an “Old Glory Pledge” stating the product message was patriotic public-health advocacy (safer sex, AIDS prevention), and that a portion of profits would be donated to AIDS-related services.
- A USPTO Examining Attorney refused registration under Lanham Act § 2(a), asserting the mark comprised “immoral or scandalous matter” because it combined condom imagery with flag symbolism.
- The applicant appealed the refusal to the Trademark Trial and Appeal Board (TTAB).

## Issues

1. Whether, under Lanham Act § 2(a), the applied-for mark’s condom-and-flag imagery for condoms constitutes “immoral or scandalous matter” such that registration must be refused.
2. Whether the refusal could be sustained on the examining attorney’s assertions without concrete evidence that a substantial composite of the general public would view the mark as shocking or offensive.

## Decision

- The TTAB reversed the § 2(a) refusal and permitted registration.
- The Board held the mark was not “immoral or scandalous” when evaluated under contemporary attitudes and in the context of its use.
- The Board found the record lacked persuasive evidence that a substantial composite of the public would be offended by the mark.
- The Board treated the applicant’s public-health messaging and stated purpose as relevant context weighing against a finding of scandalousness.
- The Board considered the existence of other registrations involving sexual content and flag imagery as relevant to assessing the asserted offensiveness and the consistency of the refusal.

## Legal Principles

- A mark is “immoral or scandalous” under § 2(a) only if, in light of contemporary attitudes, it would be considered shocking to the sense of propriety by a substantial composite of the general public.
- Scandalousness must be assessed in the full context of the mark’s use and presentation, not by viewing the imagery in isolation.
- A § 2(a) refusal requires evidentiary support; an examining attorney’s personal view or generalized assertions of offense are insufficient without proof that a substantial composite of the public would be offended.
- Prior USPTO registrations involving comparable subject matter may be considered in evaluating the plausibility and consistency of a scandalousness refusal.

## Conclusion

The TTAB concluded that the combination of flag-themed imagery with a condom depiction, used in a packaging context communicating a serious public-health and patriotic message, was not shown on this record to be “immoral or scandalous” to a substantial composite of the public, and it reversed the refusal to register.


In re Old Glory Condom Corp., 26 U.S.P.Q.2d (BNA) 1216 (T.T.A.B. 1993)