Thursday, March 02, 2006

Ill Wind Blows for "ERGONOMIC" Ceiling Fan Applicant: TTAB Citably Affirms Mere Descriptiveness Refusal

What happened to Hunter Fan Company reminds me of the old joke about the lady who backed into a window fan: dis-as-ter. (Actually, the old joke had her backing into an airplane propeller, but I've taken blogging license here). In the TTAB's 11th citable decision of 2006, the Board affirmed a Section 2(e)(1) refusal of the mark ERGONOMIC, finding it merely descriptive of "ceiling fans." In re Hunter Fan Co., 78 USPQ2d 1474 (TTAB 2006).

Examining Attorney Tonja M. Gaskins contended that the mark is "merely descriptive of a significant feature of the goods, specifically that the goods feature an 'ergonomic design.'" She submitted printouts from third-party websites at which the term "ergonomic" was used to describe a third party's or applicant's fans.

Hunter Fan argued that dictionary definitions of the word ERGONOMIC "support a finding that the term, while possibly descriptive for goods such as computer keyboards, is not descriptive of devices, including ceiling fans, that do not directly interact with a human user in a manner that reduces operator fatigue or discomfort."

The Board, however, found that the dictionary definitions supported the PTO's position, particularly the definition of ergonomics as "The engineering science concerned with the physical and psychological relationship between machines and the people who use them." The Board saw "no difference in the level of interaction between the user of on and off switches and gauges, and the user of a ceiling fan. A ceiling fan is a device that people interact with by turning it on and off. Moreover, as shown by the definitions, people 'interact' with devices in a physical and psychological manner." It noted Hunter's own use of the term ERGONOMIC "as merely one other descriptor in a laundry list of descriptors ... as evidenced by the specimen of use [pictured above] in the application."

The Board concluded that ERGONOMIC "immediately describes, without need for conjecture or speculation, a significant feature or function of applicant's goods, namely ceiling fans that are designed to operate and 'interact efficiently and safely' with the user and in a fashion that addresses the physical and psychological relationship between the goods and the user." It therefore affirmed the refusal to register.

TTABlog comment: When I first contemplated the mark ERGONOMIC used with a ceiling fan, I had to stop and think of whether there was some connection. I suspect others would do the same, because "ergonomic" to most people means (roughly) "comfortable" and "conducive to good posture." Fans cannot be described as either (as the lady in the joke found out). In my humble opinion, the mark ERGONOMIC would not, to most people, immediately describe the goods, but instead would require some thought to extract any meaning. To me, that means the mark is suggestive, not descriptive. The website evidence and Hunter's packaging, however, sort of blew away that argument.

Text Copyright John L. Welch 2006.


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