Wednesday, September 22, 2010

TTAB Finds "THE FITNESS SNEAKER" Generic for ... Guess What?

If you guessed "footwear, namely, sneakers with structural features to contribute to fitting comfort during use thereof," you hit the nail with your head. The Board affirmed a refusal to register the designation THE FITNESS SNEAKER for those goods on the ground of genericness. In re Men's Fitness Unlimited, LLC, Serial No. 76640536 (August 30, 2010) [not precedential].

The Board found the genus of goods to be "sneakers." "The fact that the sneakers are structured to fit a certain way does not change the nature of the goods as sneakers or the name of the category of goods as sneakers."

Examining Attorney Nakia D. Henry submitted definitions of "fitness" and "sneaker," as well as printouts from websites "showing that sneakers used for fitness activities are typically referred to as a 'fitness sneaker,' and that they are advertised and promoted by others as a 'fitness sneaker.'" Other sneaker producers use the term "fitness sneaker" to designate the type of sneaker.

It is clear from the evidence that 'fitness sneaker' is a generic term, commonly used by others and understood by the public to denote a particular type of sneaker. The genus of applicant's goods, which is defined as "sneakers," albeit sneakers structured to fit a certain way, encompasses the type of sneaker known as a 'fitness sneaker,' and thus identifies at least one category of sneaker.

The Board observed that the addition of THE to FITNESS SNEAKER does not avoid genericness. And even though a literal reading of the CAFC's American Fertility case would require proof of use of THE FITNESS SNEAKER as a whole to establish genericness, "we do not believe that American Fertility can be read to allow an applicant to take a clearly generic term and add to it a non-source identifying article such as 'the' or 'a' and thereby create a trademark."

Applicant feebly argued that FITNESS refers to how the sneakers "fit," but the Board pointed to the lack of evidence the consumers would give the term any such meaning. Moreover, Applicant's own declarant referred to the physical fitness of its customers.

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2010.


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