Monday, March 13, 2006

"THE BREATHABLE MATTRESS" Merely Descriptive of Mattresses, Says TTAB, Citably

In its 14th citable decision of 2006, the TTAB affirmed a Section 2(e)(1) refusal of the mark THE BREATHABLE MATTRESS (MATTRESS disclaimed), finding the mark merely descriptive of beds and mattresses. The Board gave some, but limited, probative value to the PTO's evidence from foreign websites in light of the nature of the goods involved. In re King Koil Licensing Co., 79 USPQ2d 1048 (TTAB 2006).

Examining Attorney Theodore McBride relied on a dictionary definition of "breathable," on certain Internet webpages, and on a list of Internet search results for "breathable mattress." Applicant King Koil argued mainly that much of the PTO's Internet evidence was not competent because it "relates to entities that appear, based on the content of the web pages or their internet addresses, to be located outside the United States."

The Board noted that "under appropriate circumstances, web pages posted abroad may be considered probative evidence on how a term will be perceived," citing In re Remacle, 66 USPQ2d 1222 (TTAB 2002) [evidence from English language website in Great Britain held admissible where professionals in the field would likely monitor foreign websites]. Here, however, the foreign website evidence is of "much more limited probative value."

"We ... disagree with applicant's essential contention that a general consumer in the United States would not turn to foreign web sites when researching products they may be planning to purchase. Such consumers may visit foreign web sites for informational purposes, even if they are more likely to focus on internet retailers that can easily ship items or make items available for pick up in a store in a location convenient to the purchaser. That would appear especially likely in a case such as this, where the item in question, a mattress, is large and potentially more expensive to ship than a smaller item."

The Board also gave little weight to the PTO's list of Internet search results because they did not show the "context within which a term is used on the web page that could be accessed by the link." [Again citing Remacle].

Turning to the 2(e)(1) analysis, the Board pointed to the evidence regarding three United States-based websites, at which the term "breathable mattress" appears. Thus, the Board noted, "even under applicant's view of this case [i.e., giving no weight to the foreign websites], there is evidence supporting the refusal to register."

"... we find that the term is used by purveyors of mattresses or related bedding products precisely because it is likely to be perceived by consumers as indicating that these products are breathable and therefore desirable."

The Board therefore affirmed the refusal to register.

TTABlog comment: So apparently in cases involving consumer products, the probative value to be accorded foreign website evidence is inversely proportional to the bulkiness of the product involved. I guess this gives new meaning to the term "weight of the evidence."

Text Copyright John L. Welch 2006.


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