Monday, November 06, 2006

TTAB Finds "PHYSICIAN ENDORSED" Merely Descriptive of Sunglasses, Hats, and Caps

Applicant's goods may have been PHYSICIAN ENDORSED, but its mark was not TTAB-endorsed. The Board affirmed a Section 2(e)(1) refusal to register the mark PHYSICIAN ENDORSED, finding it merely descriptive of sunglasses, hats, and caps. In re Physician Endorsed, LLC, Serial Nos. 78975107 and 78976952 (November 2, 2006) [not citable].

Applicant Physician Endorsed, LLC argued that the mark "is only suggestive, and that Examining Attorney William Breckenfeld "has engaged in 'mental leaps' and 'syllogistic approximations' in finding the mark to be merely descriptive." But the Examining Attorney pointed out that in fact Applicant's products are "approved or endorsed by a medical advisory board comprising physicians." Applicant, in turn, asserted that its goods are accessories that "serve the "primary purpose of being fashionable" and the fact that the goods are recommended by doctors "is secondary in nature and is not necessarily a significant aspect of [the] goods."

Moreover, according to Applicant, the consumer will have to make a "mental leap" in order to discern what exactly is being endorsed by the physician: "The mental leap requires consumers to begin at the mark, PHYSICIAN ENDORSED; look to Applicant's sunglasses and hats; and then determine the reason that the goods are endorsed by physicians."

The Board, however, found that "physician endorsement of the goods is a significant characteristic or feature of the goods." Applicant's website and catalogue stress that its products are endorsed by its medical advisory board, and "come stamped with a seal of approval" from that board. Therefore, the mark PHYSICIAN ENDORSED immediately describes a significant feature of the goods.

Finally, Applicant pointed to third-party Principal Registrations for DOCTOR ENDORSED, CHEF APPROVED, WEATHERMAN APPROVED, and PHYSICIAN DEVELOPED. PEOPLE APPROVED. But the Board once again observed that, while uniform treatment under the Trademark Act is a goal, the TTAB's task is to decide the case based on the record before it.

Text Copyright John L. Welch 2006.


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