Monday, December 13, 2004


Reminiscent of the recent AUTHENTIKRUD decision, another applicant's attempt at humor fell flat before the Board. In In re VRBIA, Inc., Serial No. 78263738 (December 3, 2004) [not citable], the TTAB found the mark NOT MADE IN FRANCE merely descriptive of clothing, and it therefore affirmed a Section 2(e)(1) refusal to register.

Applicant VRBIA argued that the mark will not be perceived as descriptive, but rather as a "humorous satire on the country of origin label" or a "humorous statement relating to the current decline in Franco-American relations over the war in Iraq." The Examining Attorney contended that any humorous meaning would not be discernible without reference to other slogans or features of the clothing (VRBIA suggested, for example, the image of a "French flag in a universal 'NO' symbol"). Because VRBIA conceded that France is not likely to be the origin of its clothing, the Examining Attorney deemed the mark merely descriptive.

The Board agreed with the Examining Attorney, noting that the record contains "many excerpts showing use of the phrase 'not made in France' to describe products having their origins from somewhere other than France." It found unpersuasive Applicant's main argument -- that the mark "has a double entendre by virtue of the current state of affairs in Franco-American relations."
"The effect of other indicia (that might appear on the clothing) on consumer perceptions cannot be considered in our determination of mere descriptiveness. See In re Wells Fargo & Co. 231 USPQ 95 (TTAB 1986). In the absence of these other indicia, such as the humorous sayings regarding Franco-American relations to which applicant refers, we find it unlikely that the average consumer will make the association suggested by applicant. TMEP Sec. 1213.05(c)(3d ed. rev. 2 2003)."
Although VRBIA will be unable to display the R-in-a-circle symbol adjacent its mark, maybe it could append something like this instead:


Post a Comment

<< Home