Monday, November 17, 2008

Precedential No. 47: "BOBBLE POPS" Merely Descriptive of Candy, Says TTAB, Colorfully

In a colorfully illustrated opinion crafted by Judge Bucher (whose "trademark" is the deft use of Photoshop), the Board affirmed a Section 2(e)(1) refusal to register the mark BOBBLE POPS [BOBBLE disclaimed], finding the mark merely descriptive of candy. In re Leonhardt, 109 USPQ2d 2091 (TTAB 2008) [precedential].

Applicant's counsel lamely argued that the mark is merely suggestive, but Examining Attorney Yat-sye I. Lee provided a substantial wad of evidence that, she maintained, "clearly demonstrates that the commercial impression of applicant's alleged mark, examined in its entirety in relation to applicant's identified goods, immediately conveys information about the bobble head feature and lollipop genus of applicant's candy."

The record showed that Applicant Leonhardt sells a "lollipop candy featuring a bobble head device." [See, e.g., the specimen of use pictured above.] "[A]pplicant's lollipop stick consists of the character's feet and legs, the hard candy is the torso, and the bobble head portion is a reusable cover."

The Examining Attorney relied on a dictionary definition of lollipop ["a piece of hard candy on a stick"], on various Internet screenshots showing use of the terms "pop" or "pops" interchangeably with "lollipop" or "lollipops," and on webpages showing use of "pops" generically to refer to "an array of various types of candy on a stick."

Applicant's counsel contended that the word "pop" is a shortened form of "popular," as in "pop culture" or "pop art." But the Board would not be taken for a sucker: it pointed out that the mark is not to be considered in the abstract, but rather in the context in which it is used. Here, "the purchaser of lollipops would immediately understand that this term describes lollipops." [Emphasis in original].

Applicant stuck into the record a dozen third-party registrations for candy, wherein the marks included the word "pop" or "pops" without disclaimer or 2(f) evidence, but the Board was unshaken, noting that the Board must assess the case before it on the facts at hand. Moreover, "[a] cursory review suggests that the marks in at least some of the registrations are not analogous to the instant case, either because the marks may have been considered unitary and therefore not in need of a disclaimer, or because the goods may not be lollipops at all." The Examining Attorney countered with a dozen registrations in which "pop" or "pops" is disclaimed.

Noting that the word "bobble" is disclaimed in the subject mark, the Board had no doubt that both terms in the mark are descriptive of the identified candy. It rejected Applicant's assertion that the mark "would be perceived as suggestive, at worst, given the alternative connotation of 'popular' sports stars, actors and characters featured on the bobble heads."

Nor did the Board see the mark as a "double entendre," since there was no evidence that the word "pops" is used to refer to popular sports stars, actors, or the like. "Recognizing that the trade dress on the goods refers to the instant goods as a 'collectible bobble and lollipop,' consumers would not perceive any novel or incongruous meaning for the combination of the words 'Bobble" and 'Pops.'"

And so the Board gave the nod to the PTO and affirmed the refusal.

TTABlog comment:
This is definitely another one for our WYHA collection. Seldom do we see a WYHA that is deemed precedential, and I do wonder why the Board granted this decision that elevated status. Was it the Photoshopping?

Out of curiosity, I conducted a GOOGLE brand search on Mr. Leonhardt, and found that he is the named inventor in two published utility patent applications, one entitled "Bobble Head Candy" (pdf here) and the other "Novelty Candy Device" (pdf here).

In the former application, Leonhardt states that his invention relates to "candy pop devices," refers to a prior art device as including "a candy stick on which a pop is secured," and begins claim 1 with the following preamble: "1. An improved novelty candy lollipop ('pop') device comprising a body and a head portion ..."

In the latter application, he again states that a particular prior art device includes a "candy stick on which a pop is secured," and further notes that this "pop can be formed directly on one or more appendages of the body instead of using the stick." [TTABlog query: on the arms, perhaps?]

If the Examining Attorney had proffered these two patent applications, would the PTO and the Board have needed to spend so much time in establishing that "pops" means "lollipops?"

Text Copyright John L. Welch 2008.


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