Monday, October 15, 2007

TTAB Affirms Mere Descriptiveness Refusal of "E-WEAR" for Audio Devices

The Board affirmed a Section 2(e)(1) refusal to register the mark E-WEAR, finding it merely descriptive of "portable audio products, namely, digital audio players that may be worn on various parts of the user's body, such as the head, wrist, arm, neck or hair." Applicant argued that the mark is not descriptive but rather "playfully suggestive." The Board, however, refused to play along. In re Panasonic Corp. of North America, Serial No. 76002076 (September 11, 2007) [not precedential].

Examining Attorney Tamara G. Frazier maintained that "e" is a well-known abbreviation for "electronic" and that "wear" is descriptive of audio products designed to be worn by the user (as the word is used in Applicant's identification of goods). She asserted that "e-wear" and "wearable electronics" are employed interchangeably within the industry, and she submitted dictionary definitions of "e" and "wear," along with NEXIS and Internet printouts and GOOGLE brand search results.

Applicant Panasonic lamely pointed to other meanings of the letter "e" and also contended that the term "wear" may be descriptive of clothing, but it is only suggestive of non-clothing items. Panasonic also pointed to many articles in printed publications in which E-WEAR is used as a trademark to identify the Panasonic products.

The Board once again pointed out that mere descriptiveness is to be determined not in the abstract, but in the context of the goods at issue. Reviewing the PTO's evidence, as well as Applicant's own advertising, the Board concluded that "wearable electronics" refers to electronic devices that may be worn by the user, and that the term "e-wear" is used as "an interchangeable abbreviated version" of the phrase. Therefore, the mark is merely descriptive of Applicant's goods.

As to the published articles using E-WEAR as a trademark, that evidence may bear on the issue of acquired distinctiveness, but it "is not persuasive in showing that the term is inherently distinctive."

TTABlog note: In a companion application (Serial No. 78464117) for the mark shown below for video devices, Panasonic recently entered a disclaimer of the term E-WEAR. Is the term E-WEAR registrable on the Supplemental Register? Or is it generic? You make the call.

Text Copyright John L. Welch 2007.


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