Friday, July 10, 2020

TTABlog Test: Which of these Section 2(d) Refusals Was/Were Reversed?

A TTAB judge once said to me that one can predict the outcome of a Section 2(d) case 95% of the time just by looking at the marks and the goods or services. Here are three recent decisions in appeals from Section 2(d) refusals. At least one of the refusals was reversed? How do you think these came out? [Answers in first comment].

In re Backbone Payments, Inc., Serial No. 88279535 (July 6, 2020) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(d) refusal of BACKBONE PAYMENTS for "“Merchant services provider, namely, application service provider featuring application programming interface (API) software for enabling a mobile app to accept payments directly; Merchant services provider, namely, application service provider featuring application programming interface (API) software for integrating ecommerce, payments, and functionality into software platforms” [PAYMENTS disclaimed], in view of the registered mark RETAIL BACKBONE for  “Application service provider (ASP) featuring software used to manage and facilitate the online, electronic commerce and store operations and businesses of retailers” [RETAIL disclaimed]].

In re The Half Baked Bus, LLC, Serial No. 88099422 (July 6, 2020) [not precedential] (Opinion by Judge Mark Lebow) [Section 2(d) refusal of HALF BAKED BUS, in standard form, for "Cosmetic preparations for skin care other than tanning accelerators; Cosmetics and cosmetic preparations other than tanning accelerators; Skin cream other than tanning accelerators; Skin moisturizer other than tanning accelerators," in view of the registered mark HALF BAKED, in standard character form, for "cosmetics, namely, sun tan accelerator lotion"].

In re Jevona Battle, Serial No. 88029949 (June 30, 2020) [not precedential] (Opinion by Judge David K.Heasley). [Section 2(d) refusal of BATTLE FITNESS for “Personal fitness training, physical fitness and physical exercise instruction, fitness and exercise classes” and for “Nutritional counseling” [FITNESS disclaimed] in view of the registered marks BATTLE FIT & Design for physical fitness training services [FIT disclaimed] and BODY BATTLE FITNESS & Design for personal fitness training services [FITNESS disclaimed].

Read comments and post your comment here.

TTABlog comment: How did you do? Any WYHAs here?

Text Copyright John L. Welch 2020.

Thursday, July 09, 2020

Recommended Reading: "A Tale of Two Cups: Acquired Distinctiveness and Survey Evidence Before the TTAB"

The latest issue of The Trademark Reporter (pdf here) includes a Commentary by Sarah Butler and Healey Whitsett entitled, "A Tale of Two Cups: Acquired Distinctiveness and Survey Evidence Before the TTAB." The authors, both directors at NERA Economic Consulting, review the TTAB's findings in the recent Starbucks cup case (TTABlogged here) involving the trade dress of two Starbucks cups.

In this proceeding, the TTAB carefully evaluated a secondary meaning survey on these criteria and concluded that while the survey had “some probative value,” its reliability was suspect as a result of several issues it addressed. This commentary will focus primarily on the TTAB’s evaluation of the control stimulus used in the secondary meaning survey in this particular case and will also offer some perspective on helpful lessons regarding the foundations of control design. Such lessons include the necessity of the control stimulus sharing as many characteristics with the experimental stimulus as possible, and the selection of changes made to the experimental stimulus.

The authors also  comment on other "methodological learnings" gleaned from the Starbucks decision, including guidance regarding the consideration of open-ended responses provided in the survey and the identification of the correct population of survey respondents.

Read comments and post your comment here.

TTABlogger comment: On a personal note, I recently had the pleasure of working with Sarah Butler on a likelihood-of-confusion survey.

TTABlog Thank You: to The Trademark Reporter for granting permission to the TTABlog to provide a link to this issue. Copyright © 2020 the International Trademark Association. Reprinted with the permission of The Trademark Reporter®, 110 TMR No. 3 (May-June 2020).

Text Copyright John L. Welch 2020.

Wednesday, July 08, 2020

Rejecting First Amendment Claim, TTAB Affirms Section 2(c) Refusal of TRUMP TOO SMALL for Shirts

The Board again rejected a constitutional challenge to Section 2(c) of the Trademark Act, while affirming a refusal of TRUMP TOO SMALL for shirts, finding that the mark "comprises the name of President Donald Trump without his written consent." Applicant Steve Elster argued that the statutory refusal violates his First Amendment rights, but the Board was unmoved. In re Steve Elster, Serial No. 87749230 (July 2, 2020) [not precedential] (Opinion by Judge Cynthia C. Lynch).

Section 2(c): Section 2(c) bars registration of a mark that "[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent."

Section 2(c) has been interpreted to mean that when a name appears in a proposed mark, the written consent of the person with that name must be supplied where: (1) the public would reasonably assume a connection between the individual and the goods or services because the individual is so well known; or (2) the individual is publicly connected with the business in which the mark is used. ADCO, 2020 USPQ2d 53786 at *22.

It was undisputed that the proposed mark includes the surname of President Donald J. Trump. Section 2(c) applies in such a situation when the individual is known by that surname alone. Extensive evidence demonstrated that the public understands "Trump" to refer to President Donald J. Trump. Unlike Section 2(a), Section 2(c) applies regardless of whether there is a suggested connection between the individual and the goods. For example, the Board in Hoefflin held that an application to register OBAMA PAJAMA for pajamas, sleepwear and underwear was barred by Section 2(c) even if “the record does not support the conclusion that President Obama is in any way connected with [such goods].” 97 USPQ2d at 1177. [The Board noted that, in any event, the evidence showed that President Trump’s surname has been used as a brand on a wide variety of goods, including shirts].

Accordingly, in applying Section 2(c) in this case, we need not probe for a Section 2(a)-type connection as Applicant suggests, but rather just a showing that the relevant public would recognize the name in the mark as that of a particular living individual. Therefore, we reject Applicant’s contention that under Section 2(c) a “connection” is necessary, but is foreclosed based on the theory that President Trump would not endorse the message allegedly conveyed by TRUMP TOO SMALL.

The Board declined to consider the alternative Section 2(a) refusal.

Constitutional Challenge: Applicant Elster argued that Section 2(a)’s false association provision and Section 2(c)’s particular living individual provision constitute content-based restrictions on private speech, and are therefore subject to strict scrutiny. He claimed that these provisions are "not narrowly tailored to a compelling state interest and cannot be justified, in particular when applied to current or former presidents, or presidential candidates, whom Applicant claims have yielded rights of privacy and publicity by seeking the office."

The Board discussed this constitutional issue in the recent Adco decision, involving the mark TRUMPIT for utility knives. [TTABlogged here].

As a threshold matter, the Board pointed out that these provisions of the Trademark Act do not control an applicant’s use of a proposed mark, but only set criteria for trademark registration. Id. Therefore, contrary to Applicant’s assertions, Sections 2(a) and 2(c) are not direct restrictions on speech. Id. Next, the Board addressed the viewpoint-neutrality of Section 2(a)’s false association clause and Section 2(c), thereby distinguishing them from Section 2(a)’s disparagement and immoral/scandalous provisions struck down by the Supreme Court as viewpoint-discriminatory. *** Clearly, Section 2(c) differs, in that the prohibition applies in an objective, straightforward way to any proposed mark that consists of or comprises the name of a particular living individual, regardless of the viewpoint conveyed by the proposed mark.

The Board in ADCO further concluded that even if the challenged provisions of Section 2(a) and Section 2(c) were considered as restrictions on speech, they do not violate the First Amendment because “Congress acts well within its authority when it identifies certain types of source-identifiers as being particularly susceptible to deceptive use and enacts restrictions concerning them.” And so, even if strict scrutiny applied, these provisions are narrowly tailored to accomplish the purpose of protecting consumers from deception.

Read comments and post your comment here.

TTABlogger comment: I believe Applicant Elster, who appeared pro se, is an attorney. Let's see if he takes this case further. Perhaps Section 2(c) is not unconstitutional on its face, but when applied to the facts here, where Elster is mildly criticizing the President, is it constitutional or does it improperly restrict Free Speech?

Text Copyright John L. Welch 2020.

Tuesday, July 07, 2020

NYIPLA Webinar July 23rd: Davis and Welch Review The Past Year in Trademarks

On July 23rd at 12 noon, Ted Davis and Yours Truly will provide a review of recent trademark cases in a webinar aptly titled "Trademark Case Decisions: The Past Year in the Courts and at the TTAB," sponsored by the New York Intellectual Property Law Association. Registration is free to NYIPLA members, but a fee of $30.00 is required of non-members. Register here.

As usual, Ted will cover the courts. We look forward to his comments on the Supreme Court's several recent rulings in the trademark realm. Your truly will follow up with a review of decisions and developments at the TTAB.

Text Copyright John L. Welch 2020.

Supreme Court Sends BOOKING.COM Attorney's Fees Ruling Back to Fourth Circuit In View of Peter v. Nantkwest

The Supreme Court has vacated the portion of the judgment of the U.S. Court of Appeals for the Fourth Circuit in Booking. com B.V. v. USPTO that upheld the award of attorney's fees to the USPTO under Section 1017(b)(3) of the Trademark Act. [TTABlogged here]. The case has been remanded wih the direction that the Fourth Circuit reconsider its ruling in light of Peter v. Nankwest, in which the Supreme Court ruled that the USPTO is not entitled to recover its attorney's fees in an appeal from an adverse USPTO decision via a civil action under Section 145 of the Patent Statute. [TTABlogged here]. B.V. v. USPTO, Case No. 18-1309 (cert granted July 3, 2020).

Section 145 of the Patent Statute says that the applicant must pay "[a]ll the expenses of the proceedings." The Supreme Court, however, found no reason to depart from the "American Rule" that requires each party to pay its own attorney's fees. Peter v. Nantkwest, Inc., No. 18-801 (S. Ct. December 11, 2019).

In the BOOKING.COM case, the Fourth Circuit followed (seemingly with reluctance) its own decision in Shammas v. Focarino, 784 F.3d 219, 225 (4th Cir. 2015) by affirming the district court's award of attorney's fees to the USPTO. Despite statutory language in Section 1017(b)(3) that is virtually identical to that of Section 145 of the Patent Statute, the court of appeals held that the USPTO was entitled to recover its attorney's fees. The Supreme Court denied Shammas's petition for certiorari in 2016. [TTABlogged here].

There seems to be no reason to believe that the Fourth Circuit will not reverse its position and follow the Supreme Court's lead in Peter v. Nantkwest.

Read comments and post your comment here.

TTABlogger comment: The district court required to pay $76,873.61 of the USPTO's expenses, $51,472.53 of which constituted the prorated salaries of the attorneys and paralegals who worked on the matter.

Text Copyright John L. Welch 2020.

Monday, July 06, 2020

Ruling That "" Terms May Be Registrable, Supreme Court Affirms Fourth Circuit BOOKING.COM Judgment

In a closely watched case, at least by trademark attorneys, the United States Supreme Court ruled that a proposed mark comprising a generic term coupled with ".com" is not automatically generic, but may be registrable provided that consumers perceive the mark as a source indicator. The Court affirmed the judgment of the U.S. Court of Appeals for the Fourth Circuit, which rejected the USPTO's argument that the combination of ".com" with the generic term "booking" is generic for online hotel-reservation services. [TTABlogged here]. The Supreme Court concluded that "[i]n circumstances like those this case presents, a '' term is not generic and can be eligible for federal trademark registration." USPTO v. B.V., 591 U.S. ___ (2020).

The U.S District Court for the Eastern District of Virginia concluded, based on evidence of consumer perception, that BOOKING.COM, unlike the word "booking" itself, is not generic. [TTABlogged here]. It also found that the term had acquired distinctiveness with regard to hotel reservation services and was therefore registrable. The Fourth Circuit affirmed the district court's judgment, "rejecting the PTO's contention that the combination of '.com' with a generic term like 'booking' is necessarily generic."

The parties agreed that "[e]ligibility for registration ... turn's on the mark's capacity to 'distinguis[h] goods 'in commerce.'" Trademark Act Section 1052. And the question of whether BOOKING.COM is generic "turns on whether the mark, taken as a whole, signifies to consumers the class of on-line hotel reservation services."

The Supreme Court pointed out that the courts below determined that consumers "do not in fact perceive the term '' that way." "That should resolve this case. Because '' is not a generic name to consumers, it is not generic."

The USPTO, however, contended that an inquiry into consumer perception was unnecessary, not that the determination regarding consumer perception was wrong. According to the USPTO, every "" term is generic, absent exceptional circumstances. Noting that the Office has allowed other "" terms to be registered, the Court found no support for that view in trademark law or policy.

The USPTO relied on Goodyear's Rubber Glove Mfg. Co. v. Goodyear Rubber Co., which held that "Goodyear Rubber Company" was not "capable of exclusive appropriation," the term "Goodyear Rubber" being generic. It argued that adding ".com" to a generic term is like adding "company" and conveys no additional meaning to distinguish one provider's goods or services from another's. The Court disagreed.

A “” term might also convey to consumers a source-identifying characteristic: an association with a particular website. As the PTO and the dissent elsewhere acknowledge, only one entity can occupy a particular Internet domain name at a time, so “[a] consumer who is familiar with that aspect of the domain-namesystem can infer that BOOKING.COM refers to some specific entity.” *** Thus, consumers could understand a given “” term to describe the corresponding website or to identify the website’s proprietor.

The Court noted that "" terms are not automatically nongeneric. Whether a given "" term is generic depends on whether consumers perceive the term as a source indicator.

The majority opinion addressed the concerns of Justice Breyer in his dissent where he argued that providing trademark protection for a "" term would hinder competition. According to the majority, "trademark law hems in the scope" of descriptive marks because weaker marks are given less protection: "consumers are less likely to think that other uses of the common element emanate from the mark's owner." Moreover, the doctrine of "classic fair use" shields one who uses a descriptive term "fairly and in good faith," and not as a trademark, to describe her own goods.

In addition, conceded that "" would be a weak mark, accepted that close variations are not likely to infringe. and acknowledged that registration of its mark would not prevent competitors from using the word "booking" to describe their own services.

Finally, the USPTO questioned whether owners of "" mark need additional protection in addition to the competitive advantages arising from ownership of the domain name. The Court was not impressed, observing that "the PTO fails to explain how the exclusive connection between a domain name and its owner makes the domain name a generic term all should be free to use." And dismissing the USPTO's argument that protection under unfair competition law would still be available if "" were deemed generic, the Court saw no reason to deny the benefits provided to other marks that are not generic.

And so the Court rejected the USPTO's sole ground for challenging the judgment of the Court of Appeals by ruling that "" terms are eligible for registration.

Read comments and post your comment here.

TTABlog comment: In his dissent, Justice Breyer raises a number of real world concerns, noting, for example, that even if the defense of fair use may ultimately protect alleged infringers, just the threat of costly litigation will discourage others from using variations of the registered mark.

Text Copyright John L. Welch 2020.

Thursday, July 02, 2020

TTAB Posts July 2020 (Video) Hearing Schedule

The Trademark Trial and Appeal Board (Tee-Tee-Ā-Bee) has scheduled six (VI) oral hearings for the month of July 2020. All of the hearings will be held via video conference. Briefs and other papers for each case may be found at TTABVUE via the links provided.

July 7, 2020 - 2 PAM: In re Chicanos Por La Causa, Inc., Serial No. 87935794 [Section 2(d) refusal of the mark CPLC for various health care services in class 44, in view of the identical mark registered as a certification mark for "perinatal loss care services"].

July 9, 2020 - 1 PM: Biogrand Co., Ltd. v. Sunbio Corporation, Cancellation No. 92067124 [Petition for cancellation of a registration for the mark B-7 for dietary and nutritional supplements, on the grounds of likelihood of confusion with petitioner's identical mark for identical goods, deceptiveness (Section 2(a)), misrepresentation of source (Section 14(3)), fraud, nonuse, and abandonment].

July 23, 2020 - 10 AM: In re Slumbersac Trading Company Ltd., Serial Nos. 88514693 [Section 2(d) refusal of the mark shown below for babies' and childrens' clothing and for maternity wear, in view of the registered marks DREAM BAG for bedding and REBEL DREAM BAG for backpacks].

July 23, 2020 - 10:30 AM: In re Slumbersac Trading Company Limited, Serial No. 88278672 [Section 2(d) refusal of the mark shown below for babies' and children's clothing and bedding , in view of the registered mark DREAM BABY for, inter alia, children's safety products, child restraining devices, covers for baby strollers, spoons, teething rings, and baby bottles].

July 23, 2020 - 2 PM: Eleven IP Holdings, LLC v. K11 Group Limited, Consolidated Oppositions Nos. 91230955, 91230956, and 91236465 [Section 2(d) oppositions to registration of the marks K11 in standard and stylized forms, and the mark ATELIER K11 (stylized) for "Leasing and rental of real estate, real estate agency services, real estate management services, real estate valuation services, real estate appraisal, real estate brokerage, real estate investment services, rental of offices and apartments; financial advisory, analysis, consultancy, and information services; capital investment services; financial valuation services; advisory and consultancy services relating to finance, investments, and real estate." in view of the registered marks ELEVEN and the design mark shown below (purportedly a stylized "11") for various services, including hotels, travel agency services, and banking and wealth management services].

July 29, 2020 - 1 PM: In re Branded LLC, Serial Nos. 87214622 and 87214637 [Section 2(e)(1) mere descriptiveness refusal of TWEEDS for "Bed sheets, pillow cases, comforters, bedspreads, pillow shams, bed ruffles, duvet covers, comforter covers, mattress pads, bed blankets, towels, wash cloths, fabric shower curtains, draperies and fabric valances” and "shoes; belts; swimwear"].

Read comments and post your comment here.

TTABlog comment: Any predictions? See any WYHA?s ? By the way, why aren't these video hearings publicly accessible?

Text Copyright John L. Welch 2020.

Wednesday, July 01, 2020

TTABlog Quarterly Index: April - June 2020

E-mail subscriptions to the TTABlog are available. Just enter your e-mail address in the box on the right to receive a daily update via Feedblitz. You may also follow the TTABlog on Twitter: @TTABlog.

Section 2(a) - False Association:
Section 2(b) - Simulation of Flag:

Section 2(d) - Likelihood of Confusion:

Section 2(e)(1) - Mere Descriptiveness:

Section 2(e)(2) - Primarily Geographically Descriptive:
Section 2(e)(3) - Primarily Geographically Deceptively Misdescriptive:
Section 2(e)(4) - Primarily Merely a Surname:
Section 2(f) - Acquired Distinctiveness:
Section 18 - Restriction of Registration:
Unacceptable Specimen:
Unlawful Use:
Concurrent Use:

CAFC Decisions:
Text Copyright John L. Welch 2020.

Tuesday, June 30, 2020

TTAB Sustains Two-Pronged Section 2(e)(1) Opposition to ANDRÉ-CHARLES BOULLE for Furniture

The Board sustained this two-pronged Section 2(e)((1) opposition to registration of the proposed mark ANDRÉ-CHARLES BOULLE for "Furniture, mirrors." Boulle was a celebrated 17th-Century French furniture maker whose works remain on the market today. The Board found the mark to be either merely descriptive, or deceptively misdescriptive, of the goods. De Boulle Diamond & Jewelry, Inc. v. Boulle Ltd., Opposition No. 91219499 (June 23, 2020) [not precedential] (Opinion by Judge Frances Wolfson).

A mark is “merely descriptive” if it immediately conveys information about an ingredient, quality, characteristic, feature, function, purpose or use of the goods. A mark is “deceptively misdescriptive if it: (1) misrepresents any fact concerning the goods or services; and (2) consumers are likely to believe the misdescription.

Opposer introduced the testimony of design historian Judith Gura to establish that André-Charles Boulle is a celebrated French cabinetmaker associated with the Baroque period, and known for an elaborate and intricate technique of marquetry that has become known as "Boulle work." His name is known to any person with an awareness of French traditional design. Boulle did not sign his work, and so it must be authenticated in other ways. “Virtually all fully-documented examples are in museums, and any pieces that come to market bring exceptional prices.”

Opposer argued that if Applicant sells genuine articles of furniture created by André-Charles Boulle or his studio (unlikely since Boulle's genuine works are exceedingly rare and virtually all examples are in museums), then the mark ANDRÉ-CHARLES BOULLE is merely descriptive of the goods. On the other hand, if Applicant sells furniture that is not genuine, the mark will be deceptively misdescriptive. Applicant stated that it "has not decided whether or not it will sell goods created by André-Charles Boulle."

In light of the fame and reputation of André-Charles Boulle the Board found that use of the proposed mark for furniture would likely "create the impression among potential buyers that the piece was created by Boulle's original workshop." If used in connection with furniture not made by André-Charles Boulle, it would be deceptively misdescriptive.

Applicant maintained that its mark is only “suggestive of the quality of craftsmanship and detail associated with André-Charles Boulle work and legacy,” but that assertion was belied by the use of the proposed mark at the website of applicant's affiliate (see depiction above) and its own Pinterest board.

Prospective consumers, viewing the board labeled “André-Charles Boulle/Jean Boulle Luxury Group,” will believe that Applicant sells genuine André-Charles Boulle goods. If true, the proposed mark is merely descriptive. If false, the designation is deceptively misdescriptive.

And so the Board affirmed the refusal(s) under Section 2(e)(1)

Read comments and post your comment here.

TTABlogger comment: There's a lot of history in the background to this case.

Text Copyright John L. Welch 2020.

Monday, June 29, 2020

TTABlog Test: Is STAGER Merely Descriptive of Theatrical Production Software?

The USPTO refused to register the proposed mark STAGER for, inter alia, downloadable theatrical management application software," finding the term to be merely descriptive under Section 2(e)(1). Applicant argued that "stager" is not a term of art in the theatrical production field, is not used by its competitors, and is primarily used in the real estate field for a person who prepares houses for sale. How do you think this came out? In re Stager Intellectual Properties, LLC, Serial No. 87756847 (June 26, 2020) [not precedential] (Opinion by Judge Angela Lykos).

Examining Attorney Julie Watson relied on online dictionary definitions of "stager" as "someone who supervises the physical aspects in the production of a show and who is in charge of the stage when the show is being performed." Moreover, applicant stated in its responses to a Rule 2.61 request for information that its software will be used by and marketed to stage managers, but it denied that "stager" is a term of art in the field.

The Board observed that "[a] term that identifies a group to whom the applicant directs its goods or services is merely descriptive. See In re Planalytics, Inc., 70 USPQ2d 1453 (TTAB 2004)." The Board agreed with the Examining Attorney that prospective customers will immediately perceive Applicant's mark STAGER as merely describing the intended users of the software.

Applicant pointed to a Wikipedia entry for "stager" as "someone who uses style to improve the appeal of real estate for sale," and on online advertisements for real estate stagers. The Board pointed out, however, that the term must be considered in the context of the identified goods, and meanings in other contexts are not relevant.

Likewise the lack of entries for "stager" in specialized dictionaries in the theater field is not probative. "The fact that a term is not found in a dictionary, much less that it is found only in
some dictionaries, is not controlling on the question of registrability if the Examining Attorney can show that the term has a well-understood and recognized meaning." The Board found the dictionary definitions of "stager" as "someone who assists in stage management or more generally as one who stages" to be sufficient to support the refusal.

As to lack of use of the term by competitors, the Board pointed out once again that "even if Applicant were the first and only entity in this industry to use 'stager' as a potential source indicator this would not obviate the descriptive nature of the proposed mark."

The logic of Applicant’s argument fails because the record shows that "stager" has a specific meaning when considered in relation to the goods by identifying the intended users. Competitors in this field should be able to use this descriptive term when advertising to the public their own similar goods.

And so the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: WYHA?

Text Copyright John L. Welch 2020.

Friday, June 26, 2020

TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?

The TTAB recently ruled on the appeals from three Section 2(e)(1) mere descriptiveness refusals summarized below. Let's see how you do with them, keeping in mind that last year the Board  affirmed, by my calculation, about 93% these refusals. Answer(s) will be found in the first comment.

In re Shimano North America Holding, Inc., Application Serial No. 88185338 (June 24, 2020) [not precedential] (Opinion by Judge George C. Pologeorgis). [Mere descriptiveness refusal of FLAT-FALL for "Fishing lures; Lures for fishing" in International Class 28. Applicant conceded that its fishing lures drop through the water, but the term “flat” does not describe their motion or position in the water.]

In re Fusion 360, Inc., Application Serial No. 88131491 (June 24, 2020) [not precedential] (Opinion by Judge Christopher Larkin). [Mere descriptiveness refusal of BUD SET for "Fertilizers; plant foods; chemicals for use in agricultural and industry, namely, microbial nutrient compositions, microbial compositions, bioremediation compositions, mineral fertilizing preparations, and plant nutrient compositions," in International Class 1. Applicant argued, inter alia, that the proposed mark is not merely descriptive because it does not describe a "significant function, attribute, or property" of the claimed goods.]

In re Daktronics, Inc., Serial No. 87101453 (June 22, 2020) [not precedential] (Opinion by Judge Cheryl S. Goodman). [Mere descriptiveness refusal of LIVETICKER (in standard characters) for “Computer graphics software” in International Class 9. Applicant argued, inter alia, that the Examining Attorney was attempting to “guess or infer” how Applicant will use its mark, and that “at this stage the Examining Attorney is in no position to determine” how Applicant will use its mark.].

Read comments and post your comment here.

TTABlog comment: See any WYHAs here?

Text Copyright John L. Welch 2020.