January 2009 Issue

TTAB Cases

In re Heeb Media, LLC,
App. No. 78558043 (TTAB Nov. 26, 2008)


ABSTRACT
The Examining Attorney refused to register the mark HEEB for clothing and entertainment services on the ground that it is disparaging to a substantial composite of the Jewish people.  Based on dictionary evidence that HEEB is a derogatory term for Jewish people and evidence that a substantial composite of Jewish people continue to believe HEEB has a derogatory connotation, the TTAB affirmed the refusal to register.

CASE SUMMARY

FACTS
Heeb Media, LLC (“Applicant”) filed an application for the mark HEEB for “clothing, namely, jackets, jerseys, sweat pants, sweat shirts, track suits, t-shirts, tank tops and pants; headwear,” in Class 25, and “entertainment, namely, conducting parties” in Class 41.  Applicant included a claim of ownership of its trademark registration for the mark HEEB for “publication of magazines” in Class 41.  The Examining Attorney refused registration under Section 2(a) on the ground that Applicant’s HEEB mark is disparaging to a substantial composite of the referenced group, namely, Jewish people.  Applicant appealed the Examining Attorney’s decision.

On appeal, the Examining Attorney contended that the word HEEB is a highly disparaging reference to Jewish people, that it retains that meaning when used in connection with Applicant’s goods and services, and that a substantial composite of the referenced group finds it to be disparaging.  In support of her position, the Examining Attorney submitted dictionary definitions indicating that “Hebe” and “Heeb” are derogatory or offensive terms for Jewish people, excerpts retrieved from the NEXIS database discussing the derogatory or offensive nature of the term HEEB (including in connection with Applicant’s HEEB magazine), and evidence of Applicant’s acknowledgement that some Jewish people have been offended by the use of the HEEB mark in connection with its magazine.

In support of its position that the HEEB mark is not disparaging, Applicant submitted letters from various individuals representing prominent Jewish organizations, or in their individual capacity, discussing Applicant’s use of HEEB, as well as advertisements in Applicant’s HEEB magazine allegedly showing the acceptance of the term by a wide range of Jewish organizations, and a list of Jewish organizations that support Applicant’s publication.  Applicant also noted that the 1998 edition of the Cassel Dictionary of Slang defines “heeb” as “ a derog. term for a Jew,” but the 2005 second edition includes the additional entry “[1920’s+] Jewish,” suggesting a change in the perception of the term in recent years.

ANALYSIS
To determine whether the HEEB mark is disparaging, the TTAB applied a two-part test:

(1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and (2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.

With respect to the first prong, the TTAB found that there was no dispute that HEEB means a Jewish person and that it had no other meaning pertinent to clothing or entertainment services.  Regarding the second prong, the TTAB found that the dictionary definitions unanimously underscored the derogatory nature of the HEEB mark. 

Further, although Applicant submitted evidence showing that certain organizations and individuals did not believe the HEEB mark was disparaging, the TTAB noted that there was also substantial evidence that other members of the Jewish population did consider the mark to be derogatory.  The TTAB explained that its consideration of whether the term is disparaging is not restricted to the perception of Applicant’s magazine subscribers who have no objection to HEEB as the title of Applicant’s magazine, but rather takes into account the views of the entire referenced group who may encounter Applicant’s clothing and advertising for its entertainment services in any ordinary course of trade for the identified goods and services.  The TTAB also relied on an article in which Applicant’s founder acknowledged that certain prominent members of the Jewish community were offended by the name of its HEEB magazine.  Based on this and other evidence, the TTAB found that, among the older generation of Jews, the term retained its negative meaning, and that the postcollege-age Jewish population constituted “a substantial composite” of the Jewish population.  The TTAB rejected Applicant’s argument that a minority opinion should not veto registration of a particular mark, noting that while there is no fixed number or percentage, it is well established that a “substantial composite” is not necessarily a majority.  Finally, the TTAB made clear that evidence that Applicant had good intentions with its use of the HEEB mark did not obviate the fact that a substantial composite of the referenced group found the term objectionable.  The TTAB affirmed the refusal to register.

CONCLUSION
Although an applicant may intend to transform the meaning of a mark, if that mark continues to be viewed as disparaging by a substantial component of the referenced group, it will be barred registration under Section 2(a).