WYHA? TTAB Affirms Failure-to-Function Refusal of "STRENGTH IN DATA" for Brochures
ImClone Systems sought to register the mark STRENGTH IN DATA for advertising and promotional publications in the health care field. Its specimens of use are shown below. Examining Attorney Fred Carl III refused registration on the ground that the phrase did not function as a trademark for these goods. Would you have appealed? In re ImClone Systems Incorporated, Serial No. 76659576 (September 8, 2009) [not precedential].
The question was whether the phrase, as it appeared on the specimens, "would be recognized/perceived in and of itself, by the cancer specialists, as an indication of origin for these brochures/informational newsletters."
The Board analogized this situation to one involving ornamentation on a t-shirt, where the criteria of "size, location and dominance" are applied to determine the issue.
"Putting ourselves in the position of these brochures' targeted oncologists, we find that visually these brochures uniformly present a nearly imperceptible usage of this tagline, and are clearly not a readily perceived source-indicator for these promotional brochures touting ERBITUX medications."
And so the Board affirmed the refusal.
TTABlog comment: I think this one falls below the WYHA line. What do you think?
Text Copyright John L. Welch 2009.