TTAB Reverses Descriptiveness Refusal of "YAK SAK" for Barf Bags: Double Entendre Argument Prevails
A gutsy double entendre argument saved the day for Applicant Madson Products, LLC, bringing a reversal of the PTO's Section 2(e)(1) mere descriptiveness refusal of the mark YAK SAK for "fluid-tight paper or plastic utility bags used for motion sickness and disposal of unpleasant matter." In re Madson Products, LLC, Serial No. 78565462 (September 13, 2007) [not precedential].
The Examining Attorney relied on dictionary definitions of "yak" and "yack" as slang terms meaning "to vomit," maintaining that YAK SAK "immediately tells prospective purchasers that the goods are a sack that holds yack." The mark's novel spelling "does not diminish the descriptive nature of the mark."
The Applicant threw out various arguments, the best being that YAK SAK is a double entendre. It urged that "yak" is not a misspelling but rather refers to the so-named pack animal, "suggesting that the product is tough, rugged and durable ... in essence, strong like a yak" or like the sacks used on yaks. [TTABlog comment: Calling Dr. Seuss! Please pick up the white courtesy phone!] According to Applicant, the consuming public would be equally likely to perceive this meaning as the "barf bag" meaning that the PTO claimed.
The Board agreed with the PTO that, when considered with the identified goods, YAK SAK "merely describes a sack or bag that is used to hold vomit." However, the Board agreed with the Applicant that the mark "is likely to be understood as a double entendre in connection with the identified goods." Only one of the two likely meanings of the mark is merely descriptive, and therefore the mark is at most suggestive.
TTABlog note: Because this was an ITU application without specimens of use, there was no evidence that the Applicant played up the double entendre meaning of its mark. Why, then, did the Board assume that consumers would "get" the double entendre? If Applicant's product is a paper bag, why would that bring to mind, in and of itself, the wooly Tibetan bovine? Wouldn't the mark YAK SAK more likely bring to mind the similarly alliterative, descriptive term "barf bag"?
Text Copyright John L. Welch 2007.