Tuesday, August 30, 2011

WYHA? "TUBES" Merely Descriptive of Non-inflatable Mattresses, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register the mark TUBES, finding it merely descriptive of non-inflatable mattresses made of polyurethane-foam or latex. Applicant Metzeler, when faced with a potential deceptive misdescriptiveness refusal during prosecution, admitted that its mattresses contain foam tubes. Would you have appealed? In re Metzeler Schaum GmbH, Serial No. 79041878 (August 15, 2011) [not precedential].

Warning: Video is slow to load (but worth the wait)

Metzeler argued that the mark is at most suggestive, pointing out that it does not sell "a typical water or air bed containing a cavity to be filled with water or air" [respectively - ed.]. Furthermore, "consumers are not aware of foam springs being used in mattresses and therefore [TUBES] cannot be descriptive."

Examining Attorney Evelyn Bradley pointed to Applicant's admission, and also to several search engine results showing use of the phrase "foam tube" in connection with mattresses. The Board was satisfied that TUBES "conveys a salient feature or attribute of applicant's non-inflatable mattresses made of polyurethane-foam or latex, namely that the mattresses contain cylindrical structures or tubes."

Metzeler contended that the "hidden TUBE content" of its mattresses is not a significant attribute, since consumers are not aware of the internal structure of mattresses. That argument was "severely undercut," however, by the evidence of industry and public recognition of the "tubes" feature in Applicant's mattresses. In fact, Applicant's advertising prominently shows the "tubes" construction.

The Board therefore affirmed the mere descriptiveness refusal under Section 2(e)(1).

Text Copyright John L. Welch 2011.


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