Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA400194
`ESTTA Tracking number:
`03/28/2011
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`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`79055664
`Luxuria, s.r.o.
`DAVID L MAY
`NIXON PEABODY LLP
`401 9TH STREET NW, SUITE 900
`WASHINGTON, DC 20040-2128
`UNITED STATES
`dmay@nixonpeabody.com, was.managing.clerk@nixonpeabody.com,
`lgolden@nixonpeabody.com
`Applicant's Second Request to Suspend and Remand Appeal for Consideration
`of Additional Evidence with Good Cause
`Luxuria Motion.pdf ( 5 pages )(11952 bytes )
`Luxuria, Ex A, part 1.pdf ( 45 pages )(4079464 bytes )
`Luxuria, Ex A, part 2.pdf ( 45 pages )(9211002 bytes )
`Luxuria, Ex A, part 3.pdf ( 48 pages )(18131946 bytes )
`Laura D. Golden
`nptm@nixonpeabody.com, was.managing.clerk@nixonpeabody.com,
`dmay@nixonpeabody.com, lgolden@nixonpeabody.com
`/ldg5x/
`03/28/2011
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`Proceeding
`Applicant
`Correspondence
`Address
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`Submission
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`Attachments
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`Filer's Name
`Filer's e-mail
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`Signature
`Date
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Law Office: 112
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`Trademark Examining Attorney:
`Charisma Hampton
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`In re Trademark Application of
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`LUXURIA, s.r.o.
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`Serial No.: 79/055,664
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`Filed: March 12, 2008
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`Mark: Design Only
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`13403631.1
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`APPLICANT’S SECOND REQUEST TO SUSPEND AND REMAND APPEAL
`FOR CONSIDERATION OF ADDITIONAL EVIDENCE WITH GOOD CAUSE
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`David L. May
`Nixon Peabody LLP
`401 9th Street, N.W., Suite 900
`Washington D.C. 20040-2128
`Telephone: 202-585-8000
`Fax: 202-585-8080
`E-mail: nptm@nixonpeabody.com
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`TABLE OF AUTHORITIES
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`Page
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`Cases
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`In re Carvel Corp.,
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`223 U.S.P.Q. 65 (TTAB 1984) ............................................................................................3
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`In re Empower Technologies, Inc.,
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`2006 TTAB LEXIS 435 (TTAB 2006) ...............................................................................3
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`In re HerbalScience Group, LLC,.
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`96 U.S.P.Q.2D 1321 (TTAB 2010) ....................................................................................2
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`Trademark Trial and Appeal Board Manual of Procedure Provisions
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`Section 1207.02................................................................................................................................2
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`13403631.1
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`Applicant LUXURIA, s.r.o. (“Applicant”) respectfully re-requests suspension of the
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`current appeal proceedings relative to U.S. Trademark Serial No. 79/055,664, and remand of the
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`same to the Examining Attorney to consider additional evidence, pursuant to § 1207.02 of the
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`Trademark Trial and Appeal Board Manual of Procedure (TBMP). Applicant had previously
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`made the same request in Applicant’s Request to Suspend and Remand Appeal for Consideration
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`of Additional Evidence, filed March 2, 2011, and attached hereto as Exhibit A. The Trademark
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`Trial and Appeal Board (“TTAB”) issued an order denying this request on March 8, 2011. In
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`that Order, the gave Applicant 20 days to either file a reply brief or to submit an additional
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`request for remand with a showing of good cause. Applicant herein again requests for remand
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`and presents its additional arguments regarding good cause. Applicant also re-submits the
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`evidence and arguments set forth in its previous submission.
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`First, Applicant submits that while the evidence is not new evidence, per se, this
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`information has just come to Applicant’s attention and is germane to the case. Applicant notes
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`that there are an indefinite number of resources where evidence is available, and parties can
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`search for evidence with great diligence before actually being able to locate a particular piece of
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`evidence. Such is the case here, where this evidence has only just come to Applicant’s attention
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`after repeated searches.
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`Second, Applicant submits that its request is made early in the proceedings. As set forth
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`in TBMP § 1207.02, one of the relevant factors in a finding of good cause is the stage in the
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`appeal process. In the present case, the Board has not yet begun to consider the briefs of the
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`respective parties or the merits of the case. Indeed, as noted in In re HerbalScience Group, LLC,
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`the Board does not read appeal briefs prior to a final decision. 96 U.S.P.Q.2D 1321, *6 (TTAB
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`2010). As such, there has not been undue delay or any wasted use of the Board’s resources.
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`13403631.1
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`Under these circumstances, the requirements for a showing of good cause is less burdensome
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`than it might otherwise be.
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`Furthermore, there will not be prejudice to either of the parties in the event that the
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`remand is granted. The Examining Attorney will have the opportunity to review the new
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`evidence and reply to the same, if appropriate. However, if the remand is not granted, Applicant
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`will be prejudiced by a failure to consider all available relevant evidence.
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`Finally, Applicant believes that this evidence is very strong and potentially sufficient to
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`overcome the Examining Attorney’s refusal to register the mark. As such, the Board’s resources
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`should not be used in this situation, where they could be avoided by the Examining Attorney’s
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`consideration of the relevant evidence.
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`A request for remand for introduction additional evidence is timely where it is made prior
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`to consideration and final decision of the appeal. In re Carvel Corp., 223 U.S.P.Q. 65, *4
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`(TTAB 1984), citing Trademark Rule 2.142(g). Indeed, the Board is able to suspend an appeal
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`and remand a refused application to the Examining Attorney, and will generally do so in certain
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`situations, “no matter how late the state of the appeal.” In re Empower Technologies, Inc., 2006
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`TTAB LEXIS 435, *6 (TTAB 2006). In light of the foregoing, Applicant respectfully submits
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`that it has shown good cause for the pending appeal proceedings to be suspended and review of
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`the new evidence and arguments in Exhibit A to be remanded to the Examining Attorney for
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`consideration.
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`CONCLUSION
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`For the reasons set forth above, Applicant requests that the pending appeal be suspended
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`and remanded to the Examining Attorney for consideration of the additional evidence showing
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`13403631.1
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`that Applicant’s Mark is not “immoral or scandalous” with the meaning of Section 2(a) of the
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`Trademark Act. In the event that the Board is not inclined to grant this request, Applicant
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`respectfully requests additional time to file its Reply Brief.
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`Respectfully submitted,
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`__/david l. may/____________
`David L. May
`Attorney, DC Bar Member
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`Nixon Peabody LLP
`401 9th Street, N.W. Suite 900
`Washington D.C. 20040-2128
`Telephone: 202-585-8000
`Fax: 202-585-8080
`E-mail: nptm@nixonpeabody.com
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`Dated: 28 March 2011
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`13403631.1
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`EXHIBIT A
`EXHIBIT A
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`In re Trademark Application of
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`LUXURIA, s.r.o.
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`Serial No.: 79/055,664
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`Filed: March 12, 2008
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`Mark: Design Only
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`\_#\-u.-l\_/\u.-"-u.-i\-.-"-.-i\—-J\_/
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`Law Office: 112
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`Trademark Examining Attorney:
`Charisma Hampton
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`APPLICANT’S REQUEST TO SUSPEND
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`AND REMAND APPEAL
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`FOR CONSIDERATION OF ADDITIONAL EVIDENCE
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`David L. May
`Nixon Peabody LLP
`401 9”‘ Street, N.W., Suite 900
`Washington D.C. 20040-2128
`Telephone: 202-585-8000
`Fax: 202-585-8080
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`E-mail:
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`11 tm nixon eabod .com
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`133'."-’38T"S.l
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`TABLE OF AUTHORITIES
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`Cases
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`Page
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`Boswell and Clement v. Mavety Media Group Ltd,
`1999 TTAB LEXIS 360 (TTAB 1999) ............................................................................. ..7
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`Bromberg v. Carmel SelfService, Inc.,
`198 USPQ 176 (TTAB 1978) ........................................................................................... ..7
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`Harjo v. Pro Football Inc. ,
`50 USPQ2d 1705 (TTAB 1999) ....................................................................................... ..7
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`In re BadFrog Brewery, Inc.
`1999 TTAB LEXIS 86 (TTAB 1999) ................................................................................ ..4
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`In re The Gracious Lady Service, Inc.,
`175 USPQ 380 (TTAB 1972).
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`.......................................................................................... ..6
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`In re A/Iavety Media Group Ltd,
`33 F.3d 1367, 31 USPQ2d 1923 (Fed. Cir. 1994) .................................................... .. 2, 6, 7
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`In re Merrill Lynch, Pierce, Fenner and Smith, Inc.,
`828 F.2d 1567 (Fed. Cir. 1987) ......................................................................................... ..6
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`In re Over Our Heads Inc.,
`16 USPQ2d 1653 (TTAB 1990) ........................................................................................ ..6
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`Ritchie v. Simpson,
`170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999) .......................................................... ..7
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`Statutes
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`Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a) .................................................. ..1, 2, 6, 7
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`Other References
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`Martha Irvine, Is the Middle Finger Losing Its Shock Value ?, COLUMBIAN, Feb. 26, 2003. ..2, 3, S
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`Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403,
`1407-08 (2008) ...................................................................................................................... .. 3, 4-5
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`Darren Aronofsky ’s Middle Finger A ‘Digit OfInterest ’ In FCC ’s Golden Globes Indecency
`Inquest, Ian. 16, 2009, http:llwww.defa.mer.co1n.aul2009l0 lldarren aronofslgs middle
`finger_a_digit_of_interest in fees golden globes indece11cy_inquest-2l................................... ..5
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`133'."-’38T"S.l
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`Applicant LUXURIA, s.r.o. (“Applicant”) respectfully requests suspension of the current
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`appeal proceedings relative to US. Trademark Serial No. 79/055,664, and remand of the same to
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`the Examining Attorney to consider additional evidence, pursuant to § 1207.02 of the Trademark
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`Trial and Appeal Board Manual of Procedure. Applicant requests this suspension and remand on
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`the grounds that additional evidence has just recently come to Applicant’s attention.
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`Attached as new evidence, not previously submitted, are the following:
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`I Martha Irvine’ 5 article, Is the Middle Finger Losing Its Shock Value?
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`I
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`0
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`Ira P. Robbins’ article, Digitus Impudicus: The Imddle Finger and the Law
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`Images showing altemative interpretations of the middle finger gesture
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`0 The Defamer article, Darren Aronofsky ’s A/fiddle Finger A ‘Digit OfInterest ’ In
`FCC ’s Golden Globes Indecency Inquest
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`This evidence is in support of Applicant’s appeal from the Final Office Action dated May
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`27, 2009 in which the Trademark Examining Attorney made final the refiisal to register the
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`trademark shown in U.S. Trademark Serial No. ’}'9t'055,664 under Section 2(a) of the Trademark
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`Act, 15 U.S.C. § l052(a), on the grounds that Applicant’s Mark “consists of or comprises
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`immoral or scandalous matter. ” Applicant filed its Appeal Brief on November 12, 2010 and the
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`Examining Attorney filed her Appeal Brief on January 13, 2011. Applicant filed a request to
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`extend the deadline for filing a Reply Brief on January 26, 2011, and this request was
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`subsequently granted on January 31, 2011. Applicant herein submits additional evidence
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`supporting its position that the Trademark Examining Attomey’s refusal was in error, and should
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`be reversed.
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`133'."-’38T"S.l
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`ARGUl\IENT
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`To be considered “scandalous,” the Trademark Examining Attorney must prove that the
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`mark is “shocking to the sense of truth, decency or propriety; disgraceful; offensive;
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`disreputable; .
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`. giving offense to the conscience or moral feelings; .
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`. [or] calling out [for]
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`condemnation” in the context of the marketplace as applied to goods and/or services describ ed in
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`the application. In re Mavetj/Media Group Ltd, 33 F.3d 1367, 1371, 31 USPQ2d 1923, 1925
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`(Fed. Cir. 1994) (citation omitted). Scandalous is to be determined from “the standpoint of not
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`necessarily a majority, but a substantial composite of the general public, .
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`. and in the context of
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`contemporary attitudes” (id, at 1371, 31 USPQ2d at 1925 (citation omitted)), while being
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`“mindful of ever-changing social attitudes and sensitivities” Id.
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`I
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`THE TRADEMARK EXALIINING FAILED TO CONSIDER
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`CONTEMPORARY ATTITUDES CONCERNING THE GESTURE
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`DEPICTED IN APPLICANT’S MARK
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`The Trademark Examining Attorney has failed to consider contemporary attitudes
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`concerning the gesture depicted in App1icant’s Mark, namely, “giving the finger,” as well as
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`alternative possible meanings for the gesture, which are influenced by the shift in attitude. Based
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`on these changes, Applicant submits that the evidence of record shows that contemporary
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`attitudes concerning “giving the finger” have changed, such that the gesture — when appearing in
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`a vacuum, such that it is not directed to a particular individual or group — is not immoral or
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`scandalous within the meaning of Section 2(a) of the Trademark Act.
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`Indeed, there is ample evidence that both the meaning and the public perception of the
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`middle finger gesture has changed in recent years. As explained by one author, to one
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`133'."-’38T"S.l
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`interviewee, it’s a “more general symbol of ‘ Shut up’ or ‘You’re an idiot.” Martha Irvine, Is the
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`Mfiddle Finger Losing Its Shock Value .7, COLUMBIAN, Feb. 26, 2003. This article is appended as
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`Exhibit A. In the same article, a father recounts a story in which his six year old son gives the
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`finger to another child who had stuck out his tongue; the father explains that he isn’t worried:
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`“The kid who poked out his tongue at my son was just delivering the kiddies version of the
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`finger anyway. [. . .] So he probably deserved to get the real McCoy fired back at him.” Id. This
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`subject is a good indicator of modern perception of the middle finger and acceptance of
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`alternative meanings for the same.
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`Today’s public acknowledges that there are multiple situations in which the middle finger
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`may be used, and that it may be taken to have just as many meanings. In discussing a number of
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`news articles and case law citations, Ira P. Robbins notes, “As these stories illustrate, the middle
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`finger gesture serves as a nonverbal expression of anger, rage, frustration, disdain, protest,
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`defiance, comfort, or even excitement at finding a perfect pair of shoes.” Ira P. Robbins, Digitus
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`Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1407-08 (2008)
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`(internal citations omitted). This article is attached hereto as Exhibit B. Additional evidence
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`shows that the gesture is often used in a cheeky and full manner, between friends. Attached as
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`Exhibit C are images of various individuals “giving the bird.” These images come from a
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`number of different web sites that include images of “the bird,” including
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`<www.themiddlefinger.com>. These images include publicity shots, pictures on concert states,
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`smiling poses, and wide variety of other indicators that the gesture is not always meant
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`offensively and is often now used in a good-natured way. Indeed, some of the photos are tagged
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`with the “humor” caption on these web sites. These images capture a modern perception of what
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`133'."-’38T"S.l
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`it means to “flip the bird” and make it clear that the gesture is not scandalous or ob scene, but
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`commonly accepted.
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`This perception is strengthened by the image attached as Exhibit D, which is a copy of
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`the Notice of Acceptance of §§8 & 15 Declaration issued by the USPTO in support ofIn re Bad
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`Frog Brewery’s U.S. Trademark Registration No. 2278594. The Examining Attorney has made
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`much of the fact that the decision in In re Bad Frog Brewery, 1999 TTAB LEXIS 86 (TTAB
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`1999) would not have applied to a situation involving a humanized hand. In response to this,
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`Applicant reiterates that the specimen of use submitted in that very case shows a woman
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`“flipping the bird” while wearing Bad Frog Brewery’s apparel. Not only does this specimen
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`shows a humanized hand raising the middle finger, but the USPTO’s acceptance of the specimen
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`unequivocally supports the fact that the USPTO did not find the gesture to be scandalous or
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`offensive. This decision accords with the Board’s decision that “even when humans give the
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`finger to a particular individual or a group, that. . . said gesture may be acceptable” and supports
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`registration of the current mark. Id at *6.
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`Applicant in the present case plans to market its beverages under the REVOLT! trade
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`name, and intends its visual imagery to be associated with a message of defiance or revolt. This
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`interpretation of its bottle shape is consistent with modern, altemative meanings for the gesture,
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`supported even by the USPTO’s acceptance of the specimen in In re Bad Frog Brewery, and the
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`mark is therefore entitled to registration.
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`Even to the extent that the gesture is meant as a gesture for “F--- You,” as contended by
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`the Examining Attorney, it is not true that the general public finds its use offensive. Robbins
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`notes in his article:
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`The gesture has appeared on streets and highways, in schools, shopping malls, concert
`venues, stadiums, courts, and execution chambers, in advertisements and on magazine
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`133'."-’38T"S.l
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`covers, and even on the hallowed fioors of legislatures. Although its meaning
`has remained relatively constant over time, the middle finger gesture — like the f-
`word — has become part ofthe American vernacular and, in the process, shed its
`“taboo status.” One newspaper reporter recently complained that the excessive use ofme
`gesture is causing it to lose its offensive impact, lamenting that “[o]ur most precious
`ob scene gesture is being overused, abused, and ultimately ruined”; another lamented,
`“Sad to say, the bird just doesn’t do the trick anymore.”
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`Supra, 1408-10 (internal citations omitted). As explained by another interviewee in the Irvine
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`article, “It’s part of the shift from ‘Have a nice day’ to ‘Make my day.’” Irvine, supra.
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`As evidence of the public perception of the mark, the Examining Attorney points to two
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`articles regarding the Federal Communications Commission’s (FCC) reactions to the middle
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`finger on television. However, these articles are not dispositive, as the Examiner implies. First,
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`the FCC has not made any sort of blanket determination as to the use of the middle finger on
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`television and as the articles imply, this question is context specific and there is a place for these
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`gestures in the public dialogue. Secondly, the FCC’s decision is not at all indicative of the
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`general public perception of the gesture. Indeed, it is clear from the articles that the FCC
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`decision was made in response to eighteen complaints, out of the millions of viewers. This
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`number of scandalized viewers does not constitute “the substantial composite of the general
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`public” necessary to find a mark scandalous. In response to the FCC’s decision to review the
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`matter, an online article noted, “it’s going to take something a lot worse than a middle finger to
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`shock more than 18 Americans these days.” Darren Aronofsky ’s Middle Finger A ‘Digit Of
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`Interest ’ In FCC '5 Golden Globes Indecency Inquest, Jan. 16, 2009, hfip://www.defamer.com.
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`au/2009/01/darren_aronofskys_middle_finger_a_digit_of_interest_in_fccs_golden_globes_indec
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`ency_inquest-2/. This article is attached as Exhibit E.
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`Based on the evidence as to public perception of alternative meanings of the middle
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`finger gesture, as well as public perception of the gesture used as the Examining Attorney
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`narrowly defines it, it is clear that a bottle shaped like a hand with an extended middle finger
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`does not rise to the level of “scandalous or immor
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`” necessary to deny registration of the mark
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`under Section 2(a) of the Trademark Act. In light of the foregoing, Applicant requests that this
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`refusal be reconsidered and withdrawn.
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`II
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`ANY DOUBT AS TO THE IMIVIORAL OR SCANDALOUS
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`NATURE OF APPLICANT’S MARK MUST BE RESOLVED
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`IN FAVOR OR PUBLICATION
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`As previously noted, in this case, there is a clear difference of opinion between Applicant
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`and the Trademark Examining Attorney as to whether Applicant’ s Mark is “immoral or
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`scandalous.” In another case involving Section 2(a), the Board stated that “the guidelines for
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`determining whether a mark is scandalous .
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`.
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`. are somewhat vague and the determination [of
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`whether] a mark is scandalous .
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`.
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`. is necessarily a highly subjective one.” In re Over Our Heads
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`Ir:c., 16 USPQ2d 1653, 1654, n.l (TTAB 1990) (citation omitted). Therefore, the Board
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`continued, “we are inclined to resolve doubts on the issue of whether a mark is scandalous .
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`.
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`. in
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`favor of applicant and pass the mark for publication with the knowledge that if a group does find
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`the mark to be scandalous .
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`.
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`.
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`, an opposition proceeding can be brought and a more complete
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`record can be established.” Id. Thus, Applicant respectfully submits that this practice, which
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`has been commended by the Court of Appeals for the Federal Circuit, see Mavezy Media Group,
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`33 F.3d at 1374, 31 USPQ2d at 1928, should be applied here. The same rationale has been used
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`to support publication of a mark in trademark cases where a subjective test leads to doubt as to
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`whether a mark should be denied on the grounds of descriptiveness. See, e.g., In re Merrill
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`Lynch, Pierce, Fenner and Smith, Inc, 828 F.2d 1567 (Fed. Cir. 1987); In re The Gracious Laafv
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`Service, Inc., 175 USPQ 380 (TTAB 1972).
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`133'."-’38T"S.l
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`This reasoning has also been strengthened by case law upholding the right of members of
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`the general public to oppose registration of an alleged “scandalous” trademark on the basis that
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`the mark caused injury to one’s personal beliefs. Notably, one of these cases followed the
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`Federal Circuit’s decision in Mavety Media Group, discussed above. Boswell and Clement v.
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`Mavety Media Group Ltd., 1999 TTAB LEXIS 360 (TTAB 1999) (“As a member of the group
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`which is asserted to be disparaged or brought into contempt or disrepute by the mark BLACK
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`TAJL, she has clearly demonstrated her standing in this proceeding,” citing Ritchie v. Simpson,
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`170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Harjo v. Pro Footbaiii’nc., 50 USPQ2d 1705
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`(TTAB 1999); Bromberg v. Carmel Set)’Service, Inc., 198 USPQ 176 (TTAB 1978).) In light of
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`this line of precedent, there is ample evidence that third parties can, and do, oppose registration
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`of scandalous trademarks, if there is sufficient public need for the same.
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`To the extent that there is doubt as to the immoral or scandalous nature of the mark, as is
`
`the case here, that doubt must be resolved in favor of publication. See M'avety Media Group, 33
`
`F.3d at 1374. As such, Applicant requests that the Section 2(a) refusal be withdrawn and the
`
`mark be published for opposition.
`
`CONCLUSION
`
`For the reasons set forth above, Applicant requests that the pending appeal be suspended
`
`and remanded to the Examining Attorney for consideration of the additional evidence showing
`
`that Applicant’s Mark is not “immoral or scandalous” with the meaning of Section 2(a) of the
`
`Trademark Act. In the event that the Board is not inclined to grant this request, Applicant
`
`respectfully requests additional time to tile its Reply Brief.
`
`133'."-’38T"S.l
`
`

`
`Dated: 2 March 2011
`
`Respectfully submitted,
`
`_/david 1. may/
`David L. May
`Attorney, DC Bar Member
`
`Nixon Peabody LLP
`401 9”‘ Street, NW. Suite 900
`Waslfington D.C. 20040-2128
`Telephone: 202-585-8000
`Fax: 202-585-8080
`
`E-mail: nptm@,11ixonpeabody.com
`
`133'."-’38T"S.l
`
`

`
`EXHIBIT A
`
`

`
`Westlaw.
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`2f26f03 COLUMBIAWA 4
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`Ilewsfloom
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`Page 1
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`2f26f03 Columbian (Vancouver. WA} 4
`2003 WLNR 6826562
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`COLUMBIAN (VANCOUVER, WA}
`
`Copyright © 2004 ProQuest Information and Learning. All rights reserved.
`
`February 26, 2003
`
`Is middle finger losing its shock value?
`
`IRVINE, MARTHA
`
`Even more than a decade later. Laura Kremp is still a little shocked at the gesture her mom made when a man
`driving a big, ol' Cadillac cut them off in a mall parking lot. "She flipped the guy the bird!" Kremp says, laugh-
`
`ing at the childhood memory.
`
`Flashing the middle finger was the ultimate insult when Kremp was growing up, or at least with its vulgar,
`
`sexual connotation a very naughty thing to do. These days, "the bird" is flying everywhere and, in many in-
`stances, losing its taboo status, especially among the younger set.
`
`Celebrities use it. Star athletes all but flaunt it. Even small children occasionally raise a grumpy middle finger
`
`in a world where Ozzie and Harriet have been replaced by Ozzy and Sharon, the foul- mouthed, bird-flipping
`parents from the MTV reality show. "The Osboumes."
`
`Some say the finger's prevalence is a sign of j ust how desensitized we've all become to our own crassness.
`
`" It's just another example of the drift further and further into the culture of disrespect," says David Walsh, pres-
`
`ident of the National Institute on Media and the Family. a Minneapolis-based nonprofit that monitors popular
`
`media. "It's part of the shift from ‘Have a nice day‘ to ‘Make my day.'"
`
`Others, however, wish we'd all just loosen up. The middle finger doesn't always carry the same meaning to
`everyone. they say.
`
`Kremp now 24 and a creative director at a communications training firm in suburban Philadelphia still could
`
`never imagine her mother becoming a regular bird-flipper. for example.
`
`But she sees plenty of other people using it, to express displeasure at anything from a frozen computer screen
`to a referee's questionable call or that driver who's riding your tail on the highway.
`
`© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

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`2i'26a"03 COLUL/[BIAWA 4
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`Page 2
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`And, she says, its meaning isn't always negative: "It can be done out of excitement, joy or if you finally found
`the perfect pair of shoes to go with a new outfit."
`
`Often, the middle finger is used among friends, either to tease or express mild annoyance, says Matt Meyers, a
`
`23-year-old New Yorker who works as an administrative assistant at a bank.
`
`To him, it's "more general symbol of, ‘Shut up‘ or ‘You're an idiot.'"
`
`Matt Patterson, a Los Angeles writer who co-authored the tongue- in-cheek book "The Finger: A Comprehensive
`Guide to Flipping Off," agrees that today's middle finger has many nuances. But context still matters, he says,
`
`noting that "a finger given in anger is another story" particularly for celebrities.
`
`That means actress Cameron Diaz might get away with posing, middle finger extended, for an Esquire
`
`magazine photo, as she did last year. She might even seem "edgy" or "cool" to some.
`
`But singer Britney Spears found herself apologizing to Mexican fans last summer after they thought she
`flipped them off. (Spears says the gesture was intended only for aggressive paparazzi who were hounding her.)
`
`New York Giants tight end Jeremy Shockey was fined $10,000 after he threw ice and gave the finger to fans in
`
`San Francisco during a recent playoff game.
`
`And late last month, Indiana Pacers forward Ron Artest gave the Miami crowd both barrels as he backed away
`from the foul line after hitting a free throw. He was suspended for four games.
`
`The lesson here: Don't flip offthe fans.
`
`Outside of sports, however, Savage says TV networks‘ habit of beeping out foul language and blurring middle
`
`fingers including on "The Osbournes" is mostly for show.
`
`"There's an aspect of American culture that's about appearances, rather than reality," he says. "If you beep
`something, you appear as though you're being a moral guardian."
`
`Meanwhile, MTV sells Osbourne T-shirts and posters with several family members openly extending their
`
`middle fingers "There goes the (expletive) neighborhood," one T-shirt reads.
`
`Still, even some parents wonder if critics are taking the gesture one that historians say has been around since an-
`
`cient Greek times a bit too seriously.
`
`© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

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`2i'26i"03 COLUL/[BIAWA 4
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`Page 3
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`Simon Bloomberg, a newspaper columnist in Nelson, New Zealand, recently wrote about his 6-year-old son
`giving the finger to another boy who'd stuck his tongue out in a supermarket parking lot.
`
`When asked about it, Bloomberg said he wasn't worried.
`
`"The kid who poked out his tongue at my son was just delivering the kiddies version of the finger anyway,"
`
`Bloomberg said. "So he probably deserved to get the real McCoy fired back at him."
`
`In the end, even some people who use the bird a lot hope it stays rude and crude.
`
`That includes The Amazing Johnathan, a comedian who regularly flips off his audiences. Earlier this month,
`he hosted a media event at a Las Vegas hotel complete with a giant middle-finger ice sculpture. He seemed
`
`pleased that its presence made hotel officials squirm a little.
`
`"Whenever people get used to it," he says, "then it won't be fun to do anymore."
`
`Caption: Matt Patterson, who co-wrote "The Finger: A Comprehensive Guide to Flipping Oft" poses Tuesday
`with the book in his apartment in Los Angeles.
`
`Copyright Columbian Publishing Company Feb 26, 2003
`
`---- INDEX REFERENCES ---
`
`INDUSTRY:
`
`(Entertainment
`
`(1EN08); Gen Y Entertainment (IGEI4); Celebrities (1CE65); Gen Y TV
`
`(lGE33))
`
`REGION:
`
`(USA (1US73); Americas (1AM92); North America (1NO39); New York (1NE72); California
`
`(1CA98))
`
`Language: EN
`
`OTHER INDEXING: (AMAZING JOHNATI-IAN; COMPREHENSIVE GUIDE; MTV; NATIONAL INSTI-
`
`TUTE ON MEDIA; TV) (Bloomberg; Britney Spears; Cameron Diaz; Caption: Matt Patterson; David Walsh;
`Indiana Pacers; Jeremy Shockey; Kremp; Laura Kremp; Matt Meyers; Matt Patterson; Ron Artest; Savage; Shar-
`
`on; Simon Bloomberg; Spears; Star)
`
`Word Count; 1000
`
`2i'26i"03 COLUMBIAWA 4
`
`END OF DOCUMENT
`
`© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`EXHIBIT B
`
`

`
`Digitus Impudicus:
`The Middle Finger and the Law
`
`Ira P. Robbins"
`
`The middle finger is one of the most common insulting gestures in the
`United States. The finger, which is used to convey a wide range of
`emotions, is visible on streets and highways, in schools, shopping malls,
`and sporting events, in courts and execution chambers, in advertisements
`and on magazine covers, and even on the hallowed floors of legislatures.
`Despite its ubiquity, however, a number of recent cases demonstrate that
`those who use the middle finger in public run the risk of being stopped
`arrested, prosecuted, fined, and even incarcerated under disorderly
`conduct or breach-of-peace statutes and ordinances.
`This Article argues that, although most convictions are ultimately
`overturned on appeal,
`the pursuit of criminal sanctions for use of the
`middle finger infringes on First Amendment rights, violates fundamental
`principles of criminal justice, wastes valuable judicial resources, and
`defies good sense.
`Indeed, the U.S. Supreme Court has consistently held
`that speech may not be prohibited simply because some may find it
`offensive. Criminal law generally aims to protect persons, property, or the
`state from serious harm. But use of the middle finger simply does not
`raise these concerns in most situations, with schools and courts as the
`exceptions.
`
`Barnard T. Welsh Scholar and Professor of Law and Justice, American
`University, Washington College of Law. ].D., Harvard University; A.E., University of
`Pennsylvania. The author is grateful to Anuja Athani, Sima Bhakta, Molly Bruder,
`Chen Dai, Douglas Fischer, Jessica Gold, Erica Harvey, Eugene Ho, Lonnie Klein,
`Margaret S. Moore, Kate Rakoczy, and Alisa Tschorke for their excellent research
`assistance, and to the American University Law School Research Fund for providing
`financial support.
`While the UC Davis Law Review’s Usage, Style, 6-‘ Citation Manual (rev. 5th ed.
`2007) does not permit the use of articles in parenthetical explanations, see id. at 7, the
`Editors of the UC Davis Law Review made an exception to accommodate the jargon
`and nomenclature necessary to this Article.
`
`1403
`
`

`
`1404
`
`University of California, Davis
`
`[VOL 41:1403
`
`TABLE OF CONTENTS
`
`I.
`
`1405
`1413
`
`A. The Origin ofthe Middle Finger Gesture.......................... 1413
`B.
`The Middle Finger and Other Insulting Gestures Around
`1417
`the
`II. THE MIDDLE FINGER AND THE FIRST AIvIENDMENT................. 1422
`
`A. The Fighting Finger: Why the Middle Finger Gesture Is
`Not :1 Fighting
`B. Of Sex and Social Valu