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 awarded.
      • 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.