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Red Sox v. Sex Rod

By Curt Anderson
June 29, 2021 3:52 pm
Category: Law

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In a 2008 complaint filed with the United States Patent and Trademark Office, Trademark Trial and Appeal Board, the Red Sox expressed their displeasure with the entrepreneurial intentions of one Brad Francis Sherman who wanted to sell clothes under the trade mark “Sex Rod”. Sex Rod is an anagram for Red Sox. The images below show that both Red Sox and Sex Rod seem to use a similar stylized font.


Red Sox file their opposition
The Boston Red Sox Baseball Team (the Opposer) filed an opposition to the Sex Rod trademark application: "Opposer has pleaded ownership of 16 registrations for marks consisting of or comprising the term RED SOX or a "RED SOX" image for a variety of goods and services. Opposer alleges that as a result of extensive sales and promotion opposer has built up highly valuable goodwill in the marks. Opposer further alleges that applicant's mark, displayed in the particular stylized font, is intended and will be understood to refer to the "Boston Red Sox Major League Baseball" club.

As its original grounds for opposition, opposer alleged priority and likelihood of confusion under Section 2(d) of the Trademark Act; and three grounds under Section 2(a) of the Act: (1) that the mark consists of immoral and scandalous matter; (2) that the mark disparages opposer and/or brings it into contempt or disrepute; and (3) that the mark falsely suggests a connection with opposer. Opposer subsequently amended the opposition to additionally allege that applicant did not have a bona fide intention to use the mark at the time of filing the application."

Sex Rod appeals
In defense, the applicant, Brad Francis Sherman, argued that the Sex Rod mark “represented the at once clever yet sophomoric sense of humor that prevails in those venues in which apparel bearing the SEX ROD stylized mark would likely be worn, e.g., ball parks, sports bars and university
campuses.”

Sherman described his mark "SEX ROD" as a parody of the RED SOX stylized mark, applicant argues that his mark is "an elegant and symmetrical transposition" of RED SOX; that it is a subtle play on words which "enhances the humor"; and that "the elegance of the execution mitigates any perceived vulgarity of the resulting turn of the phrase."

The USPTO decided for the Red Sox and against Sex Rod
Decision: The opposition is sustained on the grounds that the mark is scandalous and disparaging under Section 2(a) of the Trademark Act. The opposition is also sustained based on applicant's lack of bona fide intent to use the mark in commerce. The opposition is dismissed on the ground of likelihood of Opposition No. 91172268 33 confusion under Section 2(d) of the Act and on the ground that the mark falsely suggests a connection with opposer under Section 2(a) of the Act.



Cited and related links:

  1. ttabvue.uspto.gov
  2. ttabvue.uspto.gov

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