August 23, 2012
Luxuria, s.r.o. has been trying since 2008 to trademark their “BOTTLE IN THE SHAPE OF A HAND WITH MIDDLE FINGER EXTENDED UPWARDS,” but the U.S. Trademark Trial and Appeal Board (TTAB) has repeatedly ruled against them. (via: The TTABlog®)
The Fakeer brand is caught in an interesting catch-22: wanting to capitalize on an edgy and irreverent marketing idea, and yet seeking the regulatory protections of civilized society.
I remember in the early 1960s my father having a carved wooden hand on his dresser like the one on the right. (via) It was supposedly a ring holder, but my brothers and I were fascinated by it because we knew that it was not just a ring holder, it was an obscene gesture.
For Fakeer to prevail they would need to convince two separate constituencies that two opposite things were true: bottle says “f— you” and bottle does not say “f— you.”
In a press release from the bottle maker, P.E.T. Engineering srl, the gesture is framed, not in terms of obscenity, but “uncompromising” freedom and choice:
Certainly, no one had never thought on an energy drink like this before.
In the context of energy drinks who are made in the image of beasts like bulls, sharks and invincible creatures, Fakeer gives voice to a different thought, more linked to human needs: live fully and without any compromises like a mold-breaker.
From all this came the idea of a drink and a bottle that do not compromise at all, neither in the choice of ingredients, natural and with no added chemicals or preservatives, nor in the shape, which expresses, clearly and without any fear, the power of choices made holding your head up high, beyond popular belief.
In their documents denying Fakeer’s bottle a U.S. trademark, the TTAB effectively gives them the finger, by citing Wikipedia’s definition of the raised middle finger gesture and other sources as proof of obscenity:
Therefore, because the mark, consisting of a bottle in the shape of a hand with the middle finger extending upwards in the “f— you” gesture, consists of and comprises immoral or scandalous matter and a substantial composite of the general public encountering the mark in its normal retail channels for the goods would consider it immoral or scandalous, the Examining Attorney respectfully requests that the refusal to register the proposed mark on the basis of Trademark Act Section 2(a), 15 U.S.C. § 1052(a), be affirmed.
Not that it can’t be sold in all the normal retail channels. It just won’t be protected by a trademark. Other competing energy drinks could also be packaged in similarly shaped “f— you” bottles.