CAFC Affirms TTAB Re "TICK TAPE" 2(e)(1) Refusal
In a non-precedential ruling, the CAFC affirmed the TTAB's decision sustaining a refusal to register the mark TICK TAPE for a "hand tool for removing insects attached to human or animal hosts," on the ground of mere descriptiveness. In re Innovation Development Group, Inc., Appeal No. 04-1058 (March 14, 2005).
Innovation contended that substantial evidence did not support the Board's finding of mere descriptiveness. The PTO Solicitor asserted that, when used in connection with the hand tool described in Innovation's patent application (now issued), the mark TICK TAPE "would immediately indicate that one component of [the] hand tool is an adhesive tape and that the hand tool is particularly useful in removing ticks."
Reviewing the patent application that Applicant provided to the PTO, the CAFC agreed with the Solicitor:
"an essential feature of Innovation Development's product is a foam structure that folds around an insect, such as a tick, and has adhesive qualities so as to be capable of removing the tick from the host. Innovation Development's product consequently falls squarely within the definition of 'tick tape.'"
The CAFC brushed off Innovation's argument that, because "tape" is defined as a flexible strip, "its tool cannot be tape because its tool must have 'some rigidity.'" The court noted that "[t]he patent application expressly states that the 'adhesive surface . . . folds along a central folding axis.'" [emphasis in original]. That was enough flexibility for the court.
The TTABlog refuses to speculate whether the TICK TAPE tool for taking off ticks will take off, but one wonders whether Applicant Innovation will be ticked off enough to try to take its case to the Top Tribunal.
Text ©John L. Welch 2005. All Rights Reserved.