Thursday, August 14, 2008

"SPICE SHOT" Merely Descriptive of Ammunition, Says TTAB, Affirmingly

Brett W. Holm of Chaska, Minnesota, took a shot at registering the mark SPICE SHOT for "ammunition for firearms" [SHOT disclaimed], but he missed the target. The Board affirmed a Section 2(e)(1) refusal, finding the mark merely descriptive because the ammunition is comprised of spices formed into pellets (so that, according to his website, one may simultaneously shoot, kill, and season a bird). In re Holm, Serial No. 76661768 (July 30, 2008) [not precedential].

Examining Attorney Anne Gustason relied on dictionary definitions of "spice" and "shot," and on Holm's own website, where he promotes a product called "Season Shot." One might say that Holm shot himself in the foot with statements like this:

"Season Shot is made of tightly packed seasoning bound by a fully biogradable [sic] product. The seasoning is actually injected into the bird on impact seasoning the meat on impact from the inside out. When the bird is cooked the seasoning pellets melt into the meat spreading the flavor to the entire bird. Forget worrying about shot breaking your teeth [TTABlog comment: I hate when that happens!] and start wondering about which flavor shot to use!" [TTABlog query: How about chocolate if you're hunting moose?]

Holm argued that "spice" and "shot" have many possible meanings. He lamely asserted that purchasers might go through the following mental exercise:

"Are SPICE SHOT goods medical or narcotics injections having fragrant odors? Are applicant's good photographic exposures of scandalous material? Are SPICE SHOT goods small servings of undiluted liquor."

That argument was a dud, the Board pointing out that the determination of mere descriptiveness is not a guessing game conducted in the abstract. One must consider the meaning of the mark in relation to the specific goods in question.

Here, the Board found that, in the composite mark, "spice" and "shot" retain their ordinary meanings. Of course, the fact that Holm may be the first or only user of SPICE SHOT does not avoid mere descriptiveness.

The Board concluded that purchasers "will immediately understand the mark SPICE SHOT as describing the fact that the ammunition is made of spice. They will not have to undertake a multiple step reasoning process to understand from the mark something about the product. The term SPICE SHOT tells consumers exactly what the product is."

And so the Board affirmed the refusal to register.

TTABlog suggested improvement: If you put the SPICE SHOT ammo on the end of a flare, and then fired away, you could shoot, kill, spice, and cook all in one blast.

Text Copyright John L. Welch 2008


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