In Brief: The USPTO refused to register “Assholes Live Forever” as a trademark.
Here’s What Happened:
Kirill's Big Brain, LLC operates the Linda Feingold website
(https://www.lindafinegold.com/) which specializes in merchandise that displays such slogans as “Drug Money”, “All I Need is Sex, Booze & Weed” and “Walk of Shame Bag”. By far, its most prevalent merchandise slogan is “Assholes Live Forever.”
Kirill’s filed an application to register “Assholes Live Forever” as a trademark in no less than 14 separate classes of goods and services, including air fragrance preparations, jewelry, clothing, and bath mats. Kirill’s probably hoped to capitalize on the recent decisions that allowed the registration of scandalous and immoral trademarks.
In refusing to register the trademark, the Examining Attorney was able to show "wide-spread third-party use of the proposed mark generally as an expression and in an ornamental manner on goods the same as and similar to those identified in the involved application." The Examining Attorney found 30 examples of third-parties using the words on all sorts of items. The Examining Attorney determined that the slogan didn’t function as a trademark.
Kirill’s appealed to the Trademark Trial and Appeal Board. The Board affirmed the refusal. The Board held that informational matter and common terms or phrases, like “Assholes Live Forever” do not function as trademarks. Consumers are accustomed to seeing slogans as concepts or sentiments and they don’t see them as source or product identifiers. Substantively, the Board characterized Kirill’s goods as prominently displaying the sentiment as adornment on the goods rather than as a source or product identifier.
Why You Should Know This: The operative issue is that Kirill’s slogan was used as decoration on merchandise. Kirill’s may have had a good argument that the mark falls squarely within the First Amendment rights enjoyed by other scandalous and offensive registered trademarks like “The Slants” for an Asian-American musical group or “FUCTS” for clothing and hats. However, widespread third-party use of the slogan was hard to overcome.
The Linda Feingold website states that they sold the brand to an unnamed Large Mall Retailer for a number that is purported to be in the 8 figures range. Linda Feingold is closing out its “Assholes Live Forever” merchandise. Kirill’s has filed an application to register “Alphas Live Forever”.
Case Information: In re Kirill's Big Brain, LLC, Serial No. 90033810 (January 6, 2023) (not precedential).