Friday, November 10, 2006

TTAB Finds "PERMANENT BALLOON PUMP" Generic for ... Guess What?

Answer: "medical and surgical procedure products, namely, permanent implantable, left ventricular assist devices and permanent intra-aortic balloon pumps and parts therefor, namely a blood pump, skin connector and drive unit." Internet evidence and Applicant's own patent led the Board to conclude that the phrase PERMANENT BALLOOON PUMP is generic for Applicant's goods. In re L.Vad Technology, Inc., Serial No. 76291030 (September 14, 2006) [not citable].

The Board not surprisingly found PERMANENT BALLOON PUMP to be a phrase rather than a compound word, and therefore it applied the CAFC's American Fertility test, which requires proof that the relevant public views the phrase "as a whole" to be generic. Dictionary definitions of the individual words cannot alone support the genericness refusal.

"The evidence establishes that the constituent term 'balloon pump' is the name of a class of goods, and that 'permanent balloon pump' is a subset or new entry in that class of goods."

The Board found particularly significant the statement in Applicant's patent that the goods are "described as a permanent balloon pump," and its inclusion of the phrase "permanent intra-aortic balloon pumps" in the identification of goods.

"... the fact that the mark does not include the term 'intra-aortic' is of little significance in view of the other evidence of record. Nor do we find that the term 'permanent' serves a source identifying function merely because it describes a subset of the 'balloon pump' class of goods."

Applicant argued that the uses shown by the Examining Attorney were all in connection with Applicant's goods, but the Board did not miss a beat: "The fact that applicant may be the first or only entity to successfully produce and use a 'permanent balloon pump' does not confer trademark status on an otherwise generic term."

The Board therefore affirmed the refusal to register.

TTABlog comment: Hold on just a second. I agree that PERMANENT BALLOON PUMP should be generic, but did the evidence satisfy the American Fertility test? The Internet evidence did indeed seem to refer to Applicant's product, and the number of items was apparently rather small.

The statement in Applicant's patent was less than convincing evidence: "A dynamic aortic patch ... is sometimes referred to as a mechanical auxiliary ventricle (MAV) or described as a permanent balloon pump." Sounds to me like the generic terms are "dynamic aortic patch" and "mechanical auxiliary ventricle." Perhaps the phrase at issue is merely descriptive, and not the generic name of the product?

Was there enough evidence to establish that the relevant public recognizes the phrase as a generic term? You be the judge.

Text Copyright John L. Welch.


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