Wednesday, November 11, 2009

TTAB Affirms Genericness Refusal of "GOJI BERRY" for - Guess What?

Pro se Applicant Bradley Dobos of Eastsound, Washington, made a fruitless attempt to register the term GOJI BERRY for "fruit, namely, raw and unprocessed berry only indigenous to several regions in the Himalayas" in International Class 31 [BERRY disclaimed]. The Board agreed with Examining Attorney Margaret Power that GOJI BERRY "is primarily used and understood by the relevant public as a generic name for a type of berry from the Himalayas." In re Bradley Dobos, Serial No. 76680112 (October 13, 2009) [not precedential].

The Board first found that the genus of goods was "berries from the Himalayas." It noted that Applicant Dobos did not limit his goods to any particular type of berry, so "if the relevant purchasing public would find GOJI to be the name of even one type of berry from the Himalayas, then the refusal must be affirmed, for it is not necessary that the term describe all berries indigenous to the region."

To show the public's understanding of the term, the Examining Attorney relied on Internet website evidence and a Wikipedia entry for "Wolfberry" stating: "[Wolfberry] is also known as Chinese wolfberry, goji berry ... Unrelated to the plant's geographic origin, the names Tibetan goji and Himalayan goji are in common use in the health food market for products from this plant."

Dobos argued that he coined the term "Goji" several decades ago and that others have subsequently used the term improperly or "fraudulently" to refer to berries. He claimed that he began to "import and distribute these berries calling them Goji Berry," and in 2003 learned that others were selling as Goji berries "the Chinese Wolfberry of the same botanical family as the Goji, but of lesser medicinal value." Dobos asserted that "the sole purpose of [his] application to register is to protect consumers from fraudulent products."

Dobos did not deny that third parties are using the term "Goji" as a generic reference to berries from the Himalayas, but he asserted that "the only authentic [Goji] berries come from my company." In his appeal brief, Dobos appeared to concede that GOJI is now generic.

Even putting aside Applicant's concession of genericness, the Board found that the evidence overwhelmingly established that the term GOJI BERRY is generic.

Applicant submitted third party declarations, but they too indicated generic use of GOJI. And, the Board pointed out, even if Dobos coined the term GOJI and was first to use the term in connection with Lyceum berries from the Himalayas, "it is evident that the term has been subsequently adopted by others in the relevant field as the generic name for berries from the Himalayas."

The Board noted that Dobos had failed to produce any evidence that he attempted to police his alleged trademark rights, or that use by others has been found to be improper or unlawful. And it is irrelevant that Dobos is the only source for "goji berries" so long as others use the term as a generic reference to the berries.

And so the Board sustained the genericness refusal.

TTABlog comment: Maybe Dobos should have gone to the FTC rather than the USPTO if he wanted to stop the improper use of the term.

Text Copyright John L. Welch 2009.


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