Monday, September 18, 2006

Finding "BAG" Merely Descriptive of Cloth Plant Holders, TTAB Affirms Disclaimer Requirement

In one of the shorter decisions of 2006, the Board affirmed a requirement that Applicant disclaim the word BAG in its mark GARDEN BAG for "flower and plant holders made of cloth." In re Belle Garden LLC, Serial No. 78411088 (August 28, 2006) [not citable].

Applicant Belle Garden argued that its products are "planters," not "bags." The Board explored the record to see "if applicant's plant holder made of cloth looks like a bag, functions as a bag, and is referred to as a bag by applicant."

The Board first noted that Applicant, at its website [see above], "has pluralized its mark in a way that [ac]centuates the highly descriptive nature" of the term "bags." Moreover, in its specimen of use Applicant employed the word "bag" twice to describe its planter. [see below].

That was enough for the Board. As Judge Bucher incisively reasoned:

"So, just as it has often been said that, if it walks like a duck and quacks like a duck, it is a duck -- it is likewise the case with applicant's planter that inasmuch as it looks like a bag and is referred to even by applicant as a bag, consumers would immediately perceive the product as a bag."

Accordingly, the Board affirmed the disclaimer requirement. However, pursuant to Rule 2.142(g), Applicant was allowed thirty days to submit a disclaimer of BAG, upon which submission the mark would be passed to publication.

TTABlog comment: I get hung up on this question: shouldn't the PTO have refused registration of GARDEN BAG on mere descriptiveness grounds?

Text Copyright John L. Welch 2006.


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