We readily note that the issues involving the ownership of firearms and their use are frequently the subjects of debate amongst Americans and increasingly so in light of recent, high-profile shootings and Supreme Court decisions concerning the Second Amendment right to bear arms. Nevertheless, we are not convinced by the examining attorney’s evidence that any objections by some, or even perhaps many, to firearms in general necessarily equate to objections to silencers in particular; or unquestionably require us to conclude that applicant’s mark will rise to the level of “giving offense to the conscience or moral feelings” or be “shocking to the sense of decency or propriety” of a substantial composite of Americans.

The record is replete with evidence, and there is no real dispute, that the Statue of Liberty is perceived as a welcoming, national symbol of liberty and conjures many other positive feelings among Americans. The record also establishes that it is not uncommon for persons to adopt and/or register marks incorporating the Statue of Liberty holding an object, e.g., a cup of coffee or football, in place of the torch, thereby suggesting a connection with goods and/or services being offered for sale. Such marks utilize the Statue of Liberty because they are clearly intended to engender a sense of patriotism, Americana, or, perhaps of New York City, where the statue is located, for those who would use or purchase the associated goods or services. We acknowledge that most examples of such marks in the record involve fairly innocuous objects in place of the Statue’s torch and that a handgun with a silencer might not be viewed as innocuous by all. Moreover, the record does indeed show there is a negative image associated with silencers when discussed in connection with criminal activity. On the record before us, however, we cannot determine what fraction of those who associate silencers with criminal activity may nevertheless not view the mark as scandalous.

In this regard, we note that the mark does not depict the Statue of Liberty in a threatening pose or in any manner suggestive of criminal activity. Indeed, it may be viewed by many as suggestive of, and consistent with, the right to bear arms that is enshrined in the Constitution. The disclaimed wording MADE IN THE USA, appearing below the statue, would seem to reinforce such a view.

We disagree with the examining attorney’s suggestion that the mark is somehow more offensive than it would be if it only showed the Statue of Liberty holding a gun, because of the inclusion of the silencer and the banner design containing the term SILENCERS. See Brief, p. 9 (“the Statue of Liberty is not just holding a gun, but a gun with an attached silencer…. Furthermore, the statue is displayed enveloped by a banner that prominently reads in large letters SILENCERS.”). We do not believe that the record before us supports the examining attorney’s suggestion. Indeed, we note that the word SILENCERS and the depiction of the product may well be viewed as a descriptive or generic reference to the actual goods….

The evidence submitted by the examining attorney involving negative reactions to depictions of the Statue of Liberty with handguns or in connection with violent imagery does not dispel our doubt that applicant’s mark should be refused registration on the basis of scandalousness. The website and article excerpts [submitted by the examining attorney, and discussed in other parts of the opinion -EV] do not deal with the mark at hand and are few in number…. It is thus difficult, if not impossible, to fully understand the context of the reported negative reactions or whether such reactions would extend to the image in applicant’s mark….

The mixed record in this case leaves us with doubt about whether applicant’s mark gives “offense to the conscience or moral feelings” or is “shocking to the sense of decency or propriety” in the minds of a substantial composite of Americans. This leads us to the conclusion that it would be prudent, under the circumstances, to permit the mark to proceed to publication and, if a person, entity, or group “find[s] the mark to be scandalous …, an opposition proceeding can be brought and a more complete record can be established.”