Friday, September 19, 2008

"OIL FREE JOJOBA" Generic for Cosmetics, Says TTAB

Finding the term OIL FREE JOJOBA to be generic for "skin and body soaps, essential oils for personal use, cosmetics, and hair lotions, all containing one or more chemically modified jojoba extracts," the Board granted a petition for cancellation of Respondent Desert Whale's Supplemental Registration. [TTABlog note: I provided some assistance to Petitioner in this matter, and so I will make no editorial comments regarding the decision]. International Flora Technologies, Ltd. v. Desert Whale Jojoba Co., Cancellation No. 92045327 (September 17, 2008) [not precedential].

male jojoba flowers

The Board found the genus of the goods to be "properly described ... by the identification of goods," and the relevant public to be ordinary members of the general public.

According to the Board, it was "clear from the evidence, including the evidence of respondent's own use, that 'oil-free' is used to identify a product or an ingredient of a product that is free from oil." The evidence further showed that "oil-free jojoba" names a type of plant extract.

"It is also clear that the term 'oil-free jojoba' identifies a central characteristic of respondent's cosmetics and personal care products, as it is a principal ingredient of those goods. Marks which identify a key characteristic of goods or services have been held unregistrable for the goods or services." [Citing, inter alia, In re Central Sprinkler Co., 49 USPQ2d 1194 (TTAB 1998) [ATTIC generic for sprinklers used in attics].

The Board concluded that OIL FREE JOJOBA "is a generic term for the broad category of cosmetics and personal care products that fall within the narrower category or subcategory of cosmetics that contain oil-free jojoba."

Text Copyright John L. Welch 2008.


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