Friday, July 14, 2006

Citable No. 37: TTAB Finds "3-O'S" Merely Descriptive of Car Wheel Rims

Good grief! Another car wheel rim case? We just had two last month (TTABlogged here). Hey, wait a minute! It's the same Board panel and the same attorney for Applicant! In fact, the Applicant this time is the assignee of Jesse James, who lost the other two cases. Why the heck is this decision deemed citable, when the other two were not? I have no idea. In any case the Board here affirmed a Section 2(e)(1) refusal of the mark 3-O'S [that's the letter O, not the number zero], finding it merely descriptive of car wheel rims. In re Vanilla Gorilla, L.P., 80 USPQ2d 1637 (TTAB 2006).

The Examining Attorney contended that, when viewed in the context of Applicant's goods, the mark will be understood to refer to the diameter of the rims in inches. Applicant Vanilla Gorilla lamely asserted that the term 3-O'S "carries the additional suggestive connotation of three circles, or three 'O's, which can refer to dragsters or funny cars with three wheels."

The TTAB sided with the PTO. The record evidence led the Board to conclude that car wheel rims "are available in a variety of sizes and it is apparent that the size of the rims has been getting larger." "The terms '30's,' 'thirty,' and 'thirties' all describe car wheel rims that are 30 inches in diameter." The fact that Applicant's mark consists of the number 3, a hyphen, the letter O, an apostrophe, and the letter S made no difference.

"the term, '3-O'S,' when it is used on car wheels, would likely be pronounced as "three ohs" and signify the number 30s. While in the abstract, the term may have several meanings, when one is a prospective purchaser of car wheel rims, the term '3-O'S' would immediately describe a characteristic or feature of the goods, i.e., that they are 30 inches in diameter."

The Board noted that "the addition of punctuation marks to a descriptive term would not ordinarily change the term into a non-descriptive one." Likewise, slight variations in spelling do not change the meaning of the term.

The Board simply had no doubt that prospective purchasers would "immediately understand that the term is merely descriptive of these goods."

TTABlog comment: How about XXX's? Would the doctrine of foreign equivalents require translation from the Latin? Since these wheel rims are "obscenely large," would XXX be descriptive of that obscenity? Is there a law school paper in here somewhere?

Text Copyright John L. Welch 2006.


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