In re Old Glory Condom Corp.

Old Glory Condom Corporation (Old Glory) (plaintiff) petitioned the United States Patent and Trademark Office (PTO) (defendant) to register its mark, “Old Glory Condom Corp.,” and associated design, which consisted of a cartoon condom decorated with American flag imagery. Jay Kritchley, Old Glory’s president, originally designed Old Glory’s mark and pictorial design for a political art exhibition at the Massachusetts Institute of Technology (MIT). Kritchley’s original design used the American flag to invoke a patriotic duty to promote safe sex practices and fight the AIDS epidemic. Following the success of Kritchley’s MIT exhibit, he decided to convert his art into a corporate enterprise to spread his message. The Old Glory condom packaging explicitly stated that Americans had a patriotic duty to fight AIDS and sexually transmitted diseases though safe sex practices. The PTO refused to register Old Glory’s mark and design, holding that the use of the American flag in a condom’s mark and design would morally offend a substantial composite of the American public. The PTO had previously registered sexually suggestive marks for condoms and had previously registered more than 1,000 marks incorporating an American flag. The PTO presented no substantive evidence that Old Glory’s mark would offend the public. Old Glory appealed the registration denial to the United States Trademark Trial and Appeal Board.