Thursday, February 18, 2010

"HEALTHY HOME VACUUM" Not Merely Descriptive For Vacuum Cleaners, Says TTAB

The Board dismissed this Section 2(e)(1) opposition to registration of the mark HEALTHY HOME VACUUM, finding it not merely descriptive of vacuum cleaners [VACUUM disclaimed]. The Board concluded that the mark "does not, in any clear or precise way, serve to immediately describe a particular characteristic or feature of the goods with any degree of particularity." Oreck Holdings, LLC v. Bissell Homecare, Inc., Opposition No. 91173831 (February 16, 2010) [not precedential].

The Board first resolved a few evidentiary skirmishes, the most interesting involving several third-party registrations attached to Bissell's main brief. Oreck objected as to their timeliness, but Bissell argued that the registrations had been submitted during prosecution and were therefore part of the record pursuant to Trademark Rule 2.122(b)(1).

The Board recognized that it must consider the impact of the CAFC's recent decision in Cold War Museum Inc. v. Cold War Air Museum Inc., 586 F.2d 1352, 92 USPQ2d 1626 (Fed. Cir. 2009), wherein the appellate court overturned a long-standing Board doctrine by ruling that "the entire file of the involved application (or registration) – 'including any evidence submitted by the applicant during prosecution' – is part of the record of the relevant inter partes proceeding, without any action by the parties." Id. at 1628.

And so the Board ruled the these third-party registrations do form part of the record [but it also found them to be of "very limited probative value," since the prior issuance of registration for similar marks is not binding on the Board].

Turning to the issue of mere descriptiveness, Oreck argued that the mark "describes a significant characteristic of its vacuum cleaners, namely that it is intended to create a 'healthy home' through the use of enhanced filtration." Opposer pointed to some internal use of the term "healthy home" in lower-case letters by Bissell, and some usage by participants in focus groups, but the Board pointed out that the internal uses did not impact the consuming public and the few dozen focus group uses were not a basis for extrapolation to the general public at large.

Bissell, on the other hand, urged that the mark "merely suggests a possible result or an aspirational goal (an improvement in the environment of a house), thus requiring imagination on the part of consumers."

The Board noted that there is often a fine line between suggestiveness and mere descriptiveness, but concluded that HEALTHY HOME VACUUM "falls on the suggestive side of the line."

The mark at issue, HEALTHY HOME VACUUM, is typical of so many marks that consumers encounter in the marketplace: a highly suggestive mark that tells consumers something general about the product, without being specific or immediately telling consumers anything with a degree of particularity. The information given by the mark is indirect and vague. The mark here conjures up indirect mental associations in the consumer’s mind; the thought process beginning with the mark HEALTHY HOME VACUUM and leading to a characteristic or feature of a vacuum cleaner is neither immediate nor direct.
* * *
The mark HEALTHY HOME VACUUM does not serve to directly tell a consumer anything other than a vacuum cleaner is involved. The mark is an ephemeral concept and consumers are likely to have various ideas about how a vacuum cleaner results in a more environment-friendly home. That is, the mark conveys a nebulous and amorphous concept, almost like, as applicant contends, an aspirational goal.

In sum, the Board concluded that Oreck failed to prove by a preponderance of the evidence that Bissell's mark is merely descriptive.

Text Copyright John L. Welch 2010.


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