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An application to register the mark KHORAN for wine has been refused by a divided, augmented five-judge panel of the Trademark Trial and Appeal Board. The mark was held to be disparaging to Muslims.

KHORAN was an Armenian word that was translated into English as ALTAR. The mark was the phonetic equivalent of “Koran,” the name of the sacred text of Islam. The Koran forbids the consumption of alcoholic beverages.

When considering whether a mark should be refused registration on the ground that it would offend the sensibilities of an ethnic or religious group, the issue was whether the mark was disparaging to the members of that group, rather than whether the mark was offensive or scandalous, the TTAB said. The “disparaging mark” analysis for purposes of Sec. 2(a) of the Lanham Act differed from the “scandalousness” provision of Sec. 2(a), which protected the public as a whole and involved examination of whether the mark offended a substantial composite of the general public. Determination of whether a mark was disparaging required application of a two-part test: (1) What is the likely meaning of the mark, taking into account the nature of the goods or services and the manner in which the mark is used? and (2) If that meaning refers to identifiable persons, institutions, beliefs, or national symbols, is that meaning disparaging to a substantial composite of the referenced group?

There was “no real dispute” that the Patent and Trademark Office had proved the second part of the test. The applicant unsuccessfully contended that the mark KHORAN did not refer to the Koran. In the TTAB’s view, Muslim Americans would regard the mark as referring to the holy text of Islam. The terms were phonetically identical, and there were variations in the spelling of “Koran” in common usage, including the spelling “Khoran.”

Dissent

Two members of the TTAB panel dissented, arguing that the majority had misapplied the Lanham Act’s disparagement test. In the dissenters’ view, the determination of the likely meaning of an allegedly disparaging mark should not be made from the perspective of the disparaged group, but from that of the general population of the United States.

According to the dissenting judges, the general public was likely to attach no particular meaning to the KHORAN mark when they saw or heard it used in connection with wine, and there was significant doubt as to whether or not they would equate the mark with the Islamic holy text. Any doubt should be resolved, the dissenters said, by allowing the mark to be published for opposition.