In re Old Glory Condom Corp.
26 U.S.P.Q.2d 1216 (1993)
Old Glory manufactured condoms with the American flag on
the package. They attempted to get a trademark. The US Patent and
Trademark Office (USPTO) denied the trademark.
USPTO felt that the trademark was "immoral or
scandalous" and could not be trademarked as per 15 U.S.C. §1052.
The examiner felt that the condoms would "offend as
substantial composite of the general public."
Old Glory argued that their condoms were designed to
fight AIDS patriotically.
The Court of Customs and Patent Appeals reversed and
registered the trademark.
The Court found that, when viewed in light of the legal
precedent established by other trademarks the USPTO had recently
approved, the Old Glory Condom was not scandalous.
Many sexually suggestive trademarks had been awarded.
Many trademarks involving the American flag had been
The USPTO had failed to establish that anyone other than
the examiner was actually offended by the Old Glory Condom.
The Court found that examiners must look to the entire
context of the product. Old Glory was saying that preventing AIDS was
patriotic, they were not trying to offend.
If Old Glory had lost their case, their product would not
be banned. They could still market and sell their product exactly as
before. They just wouldn't have a right to stop other people from using
the same packaging.
Interestingly, Old glory would still have a common law
trademark, they just wouldn't have a registered trademark. So
far, no court has ruled that they would not protect a common law
trademark on the basis of it being scandalous.