When Nancy Friedman, who writes about sweary brand names for Strong Language, discovered a California audio-equipment company called Schiit and a Norwegian travel-bag company called Douchebags, she couldn’t keep the story to herself. She emailed trademark lawyer Anne Gilson LaLonde, who’s written for Strong Language about “scandalous” and “offensive” marks, and asked: WTF? What follows is their online conversation, condensed and edited for clarity. Style note: We’re following the convention in trademark law to use all capital letters for trademarks. When referring to the business itself, we capitalize only the first letter of the name.
Nancy: So here we have SCHIIT, a name that sounds exactly like shit, for a company that makes high-quality audio equipment. And DOUCHEBAGS, which is at least slightly offensive—maybe even prurient, if you consider the association of douche with vagina—for a company that sells, well, bags. As of April 2018, SCHIIT is a registered trademark for audio equipment. Douchebags, on the other hand, filed for trademark protection in 2011 and was rejected in 2014 because of the name’s “scandalousness.” Now it’s trying again, and just last month got preliminary approval from the US Patent and Trademark Office.
What’s your take?
Anne: From a trademark-law perspective, there’s so much inconsistency when it comes to scandalous marks, and these in particular. SCHIIT was registered over a year before the June 2019 Supreme Court opinion in Iancu v. Brunetti—the famous FUCT case—that removed the scandalousness bar to registration. There wasn’t even an Office Action (OA) from the examining attorney for SCHIIT—it sailed right through!
Whereas DOUCHEBAG—well, good for them for trying again after Brunetti. It’s sort of a soft vulgarity, no? I feel like it was used on some sitcom multiple times.
Nancy: The character Andy Sipowicz used douchebag frequently on “NYPD Blue,” which aired on network TV way back in the 1990s, although not during prime time. By the way, I was thrilled to discover a 1993 article in Adweek about “NYPD Blue”’s “graphic” language. The reporter was one Eric Schmuckle. It’s his actual name. But I digress.
Anne: There are only 15 trademark applications with the word douchebag. Most DOUCHEBAG formatives received rejections based on scandalousness and never followed up, which is what usually happened with scandalous marks before Brunetti. The dead applications include DOUCHEBAG MOTORSPORTS (for apparel), abandoned in 2008; DOUCHEBAG AWARD (for trophies), which received two OAs for scandalousness and was abandoned in 2011; and VON DOUCHEBAG ORIGINALS (for apparel), which received an OA for scandalousness and was abandoned in 2004. But there’s inconsistency here too! AMERICA’S #1 CAPITALIST DOUCHEBAG was rejected on other grounds—not scandalousness—and the application is still pending. And DOUCHEBAG REHAB EVEN YOU CAN CHANGE was actually registered in 2016! It’s for retail store services featuring funny things, essentially.
Nancy: What’s the record with SHIT trademarks, however they’re spelled?
Anne: Lots of shitty marks have been kept out of the trademark register without having to have actual SHIT in them. These were refused in 2002: GRANDMA SCHITTHED’S OUTHOUSE BROWN for beer and ale, GRANDPA SCHITTHED’S INKY STINKY PALE ALE for beer and ale, and SCHITTHED’S for beer and ale, restaurant and bar services, mugs, T-shirts and hats. Also SCHITBAG for handbags, 2011; THE SCHITT INDUSTRIES for apparel, 2015.
But some shitty marks did not receive a refusal from the trademark office: THE SCHITT FAMILY for apparel, abandoned for lack of use 2010; or THE SCHITT INC. for apparel, same in 2010.
Which brings me back to my theme — so much inconsistency with the refusals. The idea floated at the Supreme Court’s oral argument by two justices that the USPTO could just ban a list of a few Bad Words could never work. Because what do you do with SCHIT? SHITT? SCHITTHED??? There’s no rule to cover all these variations.
Nancy: Both SCHIIT and DOUCHEBAGS treat the profanity in their respective brand-name stories. On its home page, Schiit plays it for stoner laughs:
Yes, that is our name. Shih-tah. It’s a proud German name, host to a long line of audio engineers who slaved away in crumbling Teutonic fortresses as lightning lashed the dark lands outside, working to perfect the best amplification devices in the world…
Or, well, no. Yep, Schiit is our name, and it’s pronounced, well, like “hey man, that’s some really good Schiit!” And now that we have your attention…
For the complete story, we turn to the 160,000-word book Schiit founder Jason Stoddard self-published about his company, in which he credits his wife with coming up with the name. He quotes her in his Chapter 4 title: “You Always Say You Have Schiit to Do, Why Don’t You Just Call It That?”
“Nobody would ever forget it,” I replied, finally.
“It would cut down your marketing costs,” Lisa agreed.
“And we could say we make some really good Schiit.”
Lisa laughed. “Why not? Go ape Schiit.”
“And Schiit happens,” I agreed.”
“If you don’t have our stuff, you’re up Schiit creek,” Lisa added.
I nodded and sat back. Suddenly it didn’t seem so crazy. Hell, the word was meaningless for, what, 80% of the world that didn’t speak English? And if you spelled it funny, it could sound vaguely German.
He goes on to say that “the Teutonic connection opened up all sorts of stuff, including all the old Norse mythology,” which he mysteriously calls “an endless source of non-alphanumerical names.” I have no idea what that means—Stoddard didn’t respond to my email—but in fact Schiit does turn to Norse mythology for its product names, which include Asgard, Jotunheim, Hel, Valhalla, Yggdrasil, Freya, and Loki. That’s good brand extension!
On the other hand, using your brand name as a verb—as in “Are You Schiitn Me?” on the splash page—skirts uncomfortably close to using it as a generic term. Strictly speaking, a trademark should always be used as an adjective (“Schiit audio components”) and not as a noun or a verb–as brands like Kleenex and Xerox have repeatedly reminded us.
The founders of Douchebags, who are both Norwegian, are a lot more succinct:
The name “Douchebags” was conceived and dismissed in an early brainstorming session. Then Jon asked his audience what the company should be called, and “Douchebags” came up again and again. They liked that it was irreverent and brought a playfulness to their otherwise polished branding. With one chance to succeed, they knew they needed to be memorable. After much debate they finally decided: Douchebags it is.
It’s memorable, all right. Maybe even distinctive—a paramount goal of brand naming. What do you say, Anne—do Schiit and Douchebags pass the distinctiveness test?
Anne: I would say that those are both absolutely distinctive terms as used for those goods.
SCHIIT would be either arbitrary or fanciful for amplifiers, cables and record players (that’s what the mark is registered for). Arbitrary marks have a meaning unrelated to the goods or services, like DOMINO’S pizza or BEEFEATER gin. If consumers would see it just as a misspelling of SHIT, then it would be arbitrary because it’s unrelated to audio equipment. Fanciful marks are coined terms that only function as a trademark and not as a dictionary term, like PEPSI cola or CLOROX bleach or ADIDAS sportswear. If consumers would see it as a coined term, then it would be fanciful.
I would lean toward arbitrary because I think most U.S. consumers would look at that word and see SHIT, but either way it’s a conceptually strong mark.
Because DOUCHEBAG has BAG in it, it would probably be considered suggestive of the goods. Suggestive marks imply something about the goods or services but don’t explicitly describe them. DOUCHEBAG doesn’t describe a quality or function of the bags. It requires some imagination to link it with bags. Maybe you could argue it was arbitrary because it’s an insult unrelated to the goods, but the existence of BAG in the compound word I think makes it suggestive. Suggestive marks are a bit weaker in theory than arbitrary or suggestive but they’re inherently distinctive and would be automatically protectable.
Nancy: I asked a native speaker of Norwegian about douche. He told me that dusj—pronounced, approximately, douche—is the Norwegian word for “shower.” Of course, douche is the French word for “shower,” and in the mid-18th century, English speakers used “douche” in this innocent sense. It wasn’t until the 1830s that “douche” came to mean “vaginal cleansing” for speakers of English. Now that’s its only association.
Anne: I’ve read that people have much less difficulty swearing in their second language than in their first. That it has less shock value and emotional content in the second language. I couldn’t find the article but I did find Grace Irwin’s masters thesis, “Swearing in a Second Language,” from April 2019—see Page 13!—and “Second Language as an Exemptor from Sociocultural Norms,” by Gawinkowska et al., from 2013.
As a native English speaker, I would personally not use DOUCHEBAGS as a trademark, no matter how edgy, because it’s sort of a yucky term. But if you’re Norwegian and it’s in your second language maybe it isn’t so unpleasant a word.
Nancy: On the other hand, if you want to advertise Schiit or Douchebags on the public airwaves to an English-speaking audience, you’ll probably run into roadblocks. When “Schitt’s Creek” debuted in the U.S., in 2015, I wrote a Strong Language post about the contortions radio announcers went through in talking about it. Many Emmy nominations later, broadcasters aren’t quite so prim. But good luck getting NPR’s Scott Simon or “The View” ladies to talk about Schiit headphones or Douchebags backpacks.