Friday, January 19, 2007

Precedential No. 3: TTAB Finds “THEATL” Merely Descriptive of Publications About Atlanta

The third precedential TTAB decision of 2007 found the Board affirming a Section 2(e)(1) mere descriptiveness refusal of the mark THEATL for magazines, a weekly newspaper, and a section of a newspaper -- all concerning Atlanta, Georgia. In re Cox Enterprises, Inc., 82 USPQ2d 1040 (TTAB 2007).

Examining Attorney Jean H. Im contended that THEATL “is the equivalent of THE ATL, a recognized nickname for the city of Atlanta.” Applicant Cox argued that there is no evidence that “the unitary mark THEATL has such a meaning.” Moreover, Applicant asserted that THEATL, “as a whole, does not make the same commercial impression as The ATL as two separate words and will not necessarily be understood by consumers as two separate words.” It is just as likely, according to Cox, that consumers will perceive THEATL as a unitary, nonsensical word sounding like Seattle or Beetle. In any case, only after a “two-step leap in imagination can consumers draw out a descriptive element from the mark.”

The Board observed that “at least one class of relevant purchasers” for Cox’s publications comprises residents of and visitors to Atlanta. The website evidence submitted by the Examining Attorney showed that THE ATL would be recognized by these purchasers as a nickname for Atlanta. There was no evidence that THE ATL has another meaning. Furthermore, the Board found, THE ATL describes a significant feature or characteristic of Cox’s publications.

Cox’s mark THEATL, according to the Board, “is simply a compressed version of the descriptive term THE ATL,” and is “equivalent in sound meaning and impression to THE ATL and is equally descriptive of applicant’s goods.”

“the term THEATL, appearing on a publication that features news and information about Atlanta, would logically and rationally be perceived and vocalized as the familiar nickname for Atlanta rather than a nonsensical term.”

Moreover, Applicant’s mark is presented in typed or standard form, and is not limited in style. For example, Cox could depict the mark as “theATL.”

In sum, the Board affirmed the refusal to register.

Text Copyright John L. Welch 2007.


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