Monday, May 07, 2012

Affirming Disclaimer Requirement, TTAB Finds RESPOSABLE Merely Descriptive of Patient Sensors

In a case that some may think crossed over the WYHA? line, the Board affirmed a refusal to register the mark RAINBOW RESPOSABLE for "medical devices, namely, patient sensors for monitoring and measuring vital signs or blood properties," on the ground that Applicant Masimo Corporation refused to disclaim the word RESPOSABLE. Internet and wire service evidence submitted by Examining Attorney Won T. Oh demonstrated that RESPOSABLE has a recognized meaning in the medical field: it means that the disposable sensors have more than a one-time use. In re Masimo Corporation, Serial No. 77869629 (April 17, 2012) [not precedential].

Masimo's primary argument was that resposable "does not appear in the dictionary." That argument faced a major problem: "the evidence submitted by the examining attorney shows that 'resposable' has a recognized meaning in the medical field, and that the consumers for applicant’s goods would be aware of this meaning."

The Board also rejected Masimo's feeble argument that "resposable" may have been a misspelling.

We acknowledge applicant’s claim that Internet content “is often posted, commented, replied, or ‘tweeted’ in haste,” such that “errors—even misspellings—in casual online parlance are to be expected.” *** However, the material submitted by the examining attorney, as quoted herein, comes from business websites, newspapers and wire reports, not from tweets or blogposts or other postings where casual parlance would be expected.

Finally, Masimo urged that RESPOSABLE is part of a unitary mark and therefore need not be disclaimed. It lamely asserted that RAINBOW RESPOSABLE creates an incongruity because "a reusable and disposable rainbow does not exist." Although presumably amused, the Board was unmoved: "Because RESPOSABLE has the meaning of a reusable disposable item, consumers would regard RAINBOW as the source-indicating element of the mark and RESPOSABLE as describing the goods."

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2012.


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