Thursday, July 07, 2011

WYHA? TTAB Affirms Mere Descriptiveness Refusal of STERNALVEST for Sternal Vests

The Board needed a mere two pages to set forth its opinion in this affirmance of a Section 2(e)(1) mere descriptiveness refusal of the mark STERNALVEST for 'therapeutic thoracic/abdominal compression vest used for the purposes of stabilizing, immobilizing, and compressing any type of medical condition including an open wound or closed medical condition or for any preoperative and/or postoperative surgical procedure." One must ask, Would You Have Appealed? In re Joseph S. Pongratz, Serial No. 76697006 (June 24, 2011) [not precedential].

The Board found that the "applied for term names the goods and does not create any nondescriptive meaning as used in connection with these goods."

The word “vest” alone is generic for applicant’s product inasmuch as the only listed International Class 10 item is a “vest.” Hence, the only remaining determination is the result under Section 2(e)(1) of the Trademark Act with the insertion of the word “sternal” immediately before the word “vest.”

Dictionary entries show that “sternal” is defined as “of or relating to or near the sternum.” According to the applicant’s website [], specimen of record, and the identification of goods, applicant markets a therapeutic vest worn on or over the sternum. The resulting telescoped term names the goods while failing to create any separate and impressionable non-descriptive meaning.

And so the Board affirmed the refusal.

TTABlog comment: But what about a definition of "sternum?" Ok, so "sternal" means "near the sternum," but what is the sternum?

Text Copyright John L. Welch 2011.


At 9:10 AM, Anonymous Mike Brown said...

What is the sternum?

ster·num (stûr“n…m) n.,- A long flat bone in most vertebrates that is situated along the ventral midline of the thorax and articulates with the ribs. ...Also called breastbone.

Aren't all vests "sternal", then? Where else would you wear a vest? It would be like trying to register "footshoe" or "headhat" or maybe... "necktie"? Sounds like a double-generic to me.

At 9:20 AM, Blogger John L. Welch said...

We know what the sternum is. But my point is that the opinion should have included a definition of sternum. Maybe it would have been a two-and-a-half page opinion, then, but I think it would have been a better opinion.


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