Tuesday, March 23, 2010

"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 Johnson & Johnson v. Klearsen Corp., Oppositions Nos. 91173864 and 91173865 (March 5, 2010) [not precedential].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.


At 11:20 AM, Anonymous Anonymous said...

Interesting to see how the description of goods evolved from “electrically assisted treatment device” to “skin treatment device comprising of an electrically assisted bandage” to “A topical bandage with an iontophoretic generator built in which uses a current derived from a battery or other power source to drive a coating or material from the contact pad of the bandage into the skin, lesion or wound area to facilitate in the treatment of severe burns, diabetic foot ulcers, large area infections, warts and other skin conditions”

This was filed without an attorney and an attorney only got involved after publication.

If the original description had just been “adhesive bandages” or “elastic bandages” and the only application was for EBANDAGE would the outcome have been different?

I think the final detailed and very technical description was a key problem for this application.


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