"LIFETIME WARRANTY" Merely Descriptive of Clothing, Says TTAB, Not Surprisingly
When I first saw this decision, I thought it involved Ray Allen of the World Champion Boston Celtics. But it's not In re Ray Allen, it's In re Allen, as in Virgel M. Allen of Santa Clara, California. The latter Allen threw up an air ball in his attempt to register the mark LIFETIME WARRANTY for various clothing items. Examining Attorney Howard Smiga blocked his shot at registration by issuing a Section 2(e)(1) mere descriptiveness refusal. The Board affirmed. In re Allen, Serial No. 78240344 (July 31, 2008) [not precedential].
The PTO relied on dictionary definitions and Internet web pages to show various meanings of "lifetime warranty," and on Applicant's own statement regarding his goods that "at a date after the initial sale, the consumer may exchange the initial product for a similar product of similar quality but having a different design on it - regardless of the condition of the initial product at the time of the exchange."
Applicant feebly argued that the phrase has "no significance to consumers of textiles and clothing because such goods are not 'durable goods,' i.e., goods designed to be used repeatedly over a long period." As to other uses of the term, he stated that the "only significance of the term ‘LIFETIME WARRANTY’ to the average consumer of goods in other industries and trades that use this term is to satisfy the consumer that the products will be replaced if defective or worn out before the period of warranty expires.”
For the Board, this was pretty much a slam dunk:
"Even if (as applicant contends) clothes wear quickly and have such a short life span, we are unconvinced that his mark LIFETIME WARRANTY is somehow incongruous with the idea of providing a “lifetime warranty” on such goods. We see no reason why consumers will not believe that they are receiving some guarantee as to the quality of the clothes upon viewing the mark LIFETIME WARRANTY. Applicant’s argument is also belied by his own statement that he intends to allow exchanges of the clothes during the consumer’s lifetime. And, although his warranty may differ from other warranties inasmuch as he intends to allow for exchanges for reasons other than defects, his mark LIFETIME WARRANTY would still be readily perceived by consumers of clothes as describing a key feature or characteristic of the clothes, i.e., that they are being sold with a guarantee."
The Board therefore affirmed the refusal.
TTABlog comment: If you were contemplating filing the appeal in this case, what would you have estimated the chances of success to be? One in ten? Maybe less? About the same as sinking a half-court shot, blindfolded, during a time-out at a Celtics game?
Text Copyright John L. Welch 2008.