"E-BANDAGE" and "ELECTRONIC BANDAGE" Merely Descriptive of Bandages, Says TTAB, Unshockingly
The Board sustained a Section 2(e)(1) opposition to registration of the marks E-BANDAGE and ELECTRONIC BANDAGE, finding the marks to be merely descriptive of topical bandages having a "generator built in which uses a current derived from a battery or other power source to drive a current or material from the contact pad of the bandage into the skin." Johnson & Johnson v. Klearsen Corp., Oppositions Nos. 91173864 and 91173865 (March 5, 2010) [not precedential].
Opposer J&J established its standing to oppose on the ground that it is a competitor in the field of bandages and wound care, that the goods of the Applicant are within the normal expansion of its business, and that J&J "may seek to make descriptive or generic use" of the terms. "The rationale is that a competitor should be free from harassment based on the presumed exclusive right which registration of a [merely descriptive] term would erroneously accord."
Opposer’s claim of genericness was not ripe for adjudication because the involved applications were based on intent-to-use and are not eligible for registration on the Supplemental Register or under the provisions of Section 2(f). [In other words, mere descriptiveness alone would doom these applications].
J&J provided various newswire stories using the term ELECTRONIC BANDAGE to describe wound care dressings. The Board concluded that the term "merely describes dressings that utilize a weak electrical current to drive medications from the bandage into the skin to facilitate the treatment of wounds."
As to E-BANDAGE, the Board took judicial notice that the prefix E is defined as being a shorthand for ELECTRONIC. Therefore the evidence regarding ELECTRONIC BANDAGE supports a finding that E-BANDAGE is likewise merely descriptive.
And so the Board sustained the opposition.
TTABlog comment: One might wonder how these marks got passed on to publication.
Text Copyright John L. Welch 2010.