Thursday, March 31, 2011

TTAB Deems FREEDEMOGRAPHICS.COM Generic for ... Guess What?

What would you expect to find at a website with the name FREEDEMOGRAPHICS.COM? Maybe demographic data available without cost? The Board applied both the In re Gould test for compound words and the American Fertility for phrases in concluding that this term is generic for "business and marketing services, namely, providing customizable demographic data, reports, and analysis." In re SRC, LLC, Serial No. 77282935 (March 16, 2011) [not precedential].

After a mere descriptiveness refusal, Applicant SRC amended its application to seek registration on the Supplemental Register, but Examining Attorney Michael Webster played the genericness card. He relied on dictionary definitions of "free" and "demographics," and urged that the TLD ".com" has no source-identifying significance. He also submitted several website pages and articles using the terms "free demographic" or "free demographics" in connection with online sources for such data.

Applicant argued that its website provides "an array of services extending far beyond the provision of statistical data that is available without monetary payment:"for example, it provides "interactive participation" and detailed reports. Applicant also submitted printouts from two website pages "referencing applicant's services when using the term FREEDEMOGRAPHICS.COM."

The Board found FREEDEMOGRAPHICS.COM to be a compound term properly analyzed under Gould. Since the individual components are generic for the offered services, and their combination lends "no additional meaning to the term," the term itself is generic.

The Board noted that the proposed mark includes three components and arguably bears a closer conceptual resemblance to a phrase than a compound word. However, the record included evidence of use of FREE DEMOGRAPHICS; and the TLD .com "in this case does not present an 'exceptional circumstance' and, as such, is wholly without source-identifying significance." Therefore the term is also generic under the American Fertility analysis.

The fact that Applicant's services are broader that just supplying data does not avoid genericness. "[A]s long as the term is generic of an aspect of the services, it must be refused registration. The evidence showed that "the provision of free demographics is a class of service and the term is used to refer to such services promoted by other websites."

Finally, the two website printouts provided by Applicant were not enough to create a "mixed record sufficient to rebut the PTO's prima facie case."

And so the Board affirmed the refusal.

TTABlog note: For more on the type of "mixed record" that will avoid a genericness refusal, see the recent THUMBDRIVE case, TTABlogged here.

Text Copyright John L. Welch 2011.


At 2:05 PM, Anonymous Anonymous said...

I thought it was illustrations of the founding fathers:

At 6:26 PM, Blogger John L. Welch said...

You know, when I first glanced at this case, I thought, how is FREEDOM GRAPHICS generic?


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