WYHA? TTAB Affirms Mere Descriptiveness Refusal of "LOCAL LABEL" for Clothing
Marylander Curtis A. Brubaker, Jr., failed to overcome a Section2(e)(1) mere descriptiveness refusal of the mark LOCAL LABEL for "hats; polo shirts; shirts; short-sleeved or long-sleeved t-shirts." The two arguments that this local Applicant tried on for size were sure TTAB losers, which is why this case is a candidate for our WYHA label. In re Curtis A. Brubaker Jr., Serial No. 78797601 (July 8, 2009) [not precedential].
Examining Attorney Steven Foster relied on dictionary definitions of "local" and "label," on excerpts from newspapers downloaded from NEXIS, and on Internet webpages, in arguing that "when viewed in connection with applicant's goods, the words 'LOCAL LABEL' merely describe clothing items sold near their location of manufacture or design." The Board found that evidence "highly persuasive."
Applicant Brubaker lamely asserted that "the average consumer would be hard-pressed to name what goods, or types of goods, etc., are described by the mark 'LOCAL LABEL.'" Of course, as the Board has pointed out a million times, that is not the correct approach to a mere descriptiveness determination:
"The question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them." In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002).
Brubaker contended that the existence of a (now-expired) third-party registration for the mark LOCAL BRAND for clothing items supports registration of his mark, since that mark has "a nearly identical meaning." No way, said the Board:
... it is well settled that each case must be considered on its own merits and the Board is not bound by decisions of examining attorneys in other applications. In re Nett Design Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).
Two strikes, and Brubaker was out. The Board affirmed the refusal.
TTABlog comment: Well, if it were your money and your decision, Would You Have Appealed?
Text Copyright John L. Welch 2009.