Thursday, September 21, 2006

TTAB Finds "GRAVEL SHOOTER" Merely Descriptive of Aggregate-Dispensing Conveyors

Having watched former-Celtic Antoine Walker play basketball, I know what it means to "shoot a brick." But "gravel shooter" is a new one on me. Novelty of a term, however, does not avoid mere descriptiveness, as Applicant learned in In re Gravel Conveyors, Inc., Serial No. 78363393 (August 14, 2006) [not citable]. The Board affirmed a Section 2(e)(1) refusal of the mark GRAVEL SHOOTER for "mobile hydraulic conveyors for dispensing aggregate and particulate materials at a job site."

Examining Attorney Shaunia P. Wallace Carlyle maintained that "gravel" is one of the materials "thrown from applicant's goods," and that dictionary definitions support the conclusion that the term "shoot" may be used to describe "how this aggregate is discharged."

Applicant Gravity Conveyors, Inc. countered by urging that "while one may shoot a gun, the concept of a conveyor 'shooting' gravel is incongruous." It contended that the proper term is "throw," not "shoot."

The Examining Attorney shot back by arguing that the gravel is "thrown in a long arc" ... "similar to how a basketball is 'shot' by a player into a basket." [Or, in Antoine's case, not into a basket].

The Board agreed with the PTO: "If applicant's conveyors for dispensing aggregate and particulate materials can throw gravel, given [the PTO's] dictionary entries, these conveyors can 'shoot' as well." The fact that Applicant may be the first and only user of the term "Gravel Shooter" in connection with mobile conveyors for throwing gravel does not overcome the 2(e)(1) refusal.

Therefore, the Board affirmed the refusal.

TTABlog dissent: One throws a baseball, but shoots a basketball. One throws a football, but shoots a hockey puck. What's the difference? For basketball and hockey, there is a fixed target or goal in which one is trying to deposit an object. In baseball and football there is no fixed target.

As to the gravel game, there is no fixed target or goal, and so one throws gravel. One does not shoot gravel. GRAVEL SHOOTER is therefore an incongruous combination that should be registrable.

Text Copyright John L. Welch 2006.


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