Monday, August 01, 2005

"TWIN CHAMBER" Merely Descriptive of Vacuum Cleaners, TTAB Rules

When the dust settled, The Hoover Company had failed to sweep away the PTO's Section 2(e)(1) refusal to register TWIN CHAMBER for vacuum cleaners. The Board affirmed the PTO's determination that the mark is merely descriptive of the goods. In re The Hoover Co., Serial No. 78177402 (July 21, 2005) [not citable].

Hoover vacuously argued that the word "chamber" does not describe its product because a chamber is a closed space, and its product is not closed. But Hoover's own website described the product thusly: "Heavy dirt entering the vacuum is drawn into an empty chamber and kept there by a permanent pre-filter between the two chambers. *** The pre-filter allows only fine particles to pass into the second chamber, where they are stopped by a HEPA filter."

Hoover next pointed to the Examining Attorney's definition of "twin," asserting that its enclosures cannot be considered "twin" chambers because they are not "identical or similar:" one contains a HEPA filter, which takes up most of its space, and so the two chambers are not alike in appearance or function. The Board was not sucked in by Hoover's argument:

"We think this is a narrow reading of 'twin.' The shape and overall appearance of the two sides or chambers of Applicant's vacuum cleaner ... are basically the same. The fact that the interiors of the chambers have different contents does not eliminate this overall similarity."

Thus the Board concluded that consumers will immediately understand TWIN CHAMBERS to mean that Hoover's vacuum cleaners "have a container [sic] with two sections that are similar in overall size and appearance." Therefore, the mark is merely descriptive.

TTABlog comment: Before appealing from a mere descriptiveness refusal, an applicant would be wise to check on how the subject mark is used at its own website. It's surprising how often the PTO is able to point to an applicant's own website (or other promotional material) to support a Section 2(e)(1) refusal. Rather than spending money on a futile appeal, an applicant might better invest in a website "audit" to make sure that its marks are being used properly.

Text Copyright John L. Welch 2005. All Rights Reserved.


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