WYHA? "THE BIG RIG MATTRESS" Merely Descriptive of Mattresses, Says TTAB
In a five-page decision, the Board affirmed a Section 2(e)(1) refusal of THE BIG RIG MATTRESS, finding the mark to be merely descriptive of mattresses. Examining Attorney Brian Neville submitted dictionary definitions of "big rig" as a "tractor-trailer truck," and a page from Applicant's website showing that Applicant's goods are advertised as a "Truck-Sleeper mattress." Would you have appealed? In re Quality Spring Products, Inc., Serial No. 77738221 (May 23, 2012) [not precedential]
Applicant conceded that one meaning of its mark is descriptive of its goods, but it asserted that the mark is a double entendre, having a non-descriptive second meaning: the word "rig" means "gear," so that "big rig" may mean "big gear/apparatus" in addition to "truck." The second meaning of the mark is then "a heavy duty mattress or heavy duty sleeping gear."
[I]t is applicant’s position that 'when a rig is interpreted to mean equipment or gear, big is an adjective modifying that equipment or gear,' and that 'big as an adjective modifying rig is not simply ‘large’, but there is a suggestion that the big rig is the stronger, more powerful, more heavy duty piece of equipment or gear in comparison to the normal, ordinary, or small rig.' [emphasis in original].
Thus, according to Applicant, THE BIG RIG MATTRESS may mean "The Heavy Duty or High Quality Equipment or Gear Mattress."
The Board pointed out that, to qualify as a double entendre, the non-descriptive meaning of the mark must be immediately apparent. It was not persuaded by Applicant's "very strained argument" that consumers would understand Applicant's mark, for mattresses to be used in tractor-trailers, as meaning "The Heavy Duty or High Quality Equipment or Gear Mattress."
On the contrary, they will not go through this very convoluted reasoning when the meaning of BIG RIG as a tractor-trailer will be very evident to them, and THE BIG RIG MATTRESS will mean to them only that the mattress on which this mark is used is a mattress designed for big rigs.
And so the Board affirmed the refusal.
TTABlog comment: Well? WYHA?
Text Copyright John L. Welch 2012.
posted by John L. Welch @ 6/06/2012
5 comments
5 Comments:
Not only would I have appealed, but I would recommend a further appeal. BIG RIG is not merely descriptive of "mattresses," which are the only goods the application claims.
In response to Frank, the examiner's (and USPTO's)position apparently was not that "BIG RIG" is merely descriptive of mattresses, but merely descriptive of the PURPOSE or FUNCTION of the mattress. I can understand that position and I can understand the applicant's position that the entire mark is a double-entendre.
I think I would have tried the double-entedre strategy through the initial response round and possibly in response to a final OA if I felt the record was not sufficiently developed but I do not think I would have appealed this.
I'm with Frank. I would have appealed and further appealed.
Hmm. The Examining attorney is allowed to look at the commmercial use when considering that the mattresses are for Big Rig trucks, but applicants are NOT allowed to point to evidence of how a cited mark is used in a likely confusion refusal to try to rebut that refusal. Seems to me that what is good for the goose ought to be good enough for the gander.
when a rig is interpreted to mean equipment or gear, big is an adjective modifying that equipment or gear,' and that 'big as an adjective modifying rig is not simply ‘large’, but there is a suggestion that the big rig is the stronger, more powerful, more heavy duty piece of equipment or gear in comparison to the normal, ordinary, or small rig
Don't just take the dictionary definition -- COCA agrees. Of the 79 occurrences of "big rig" in the COCA (Corpus of Contemporary American English), 72 refer literally to big rigs, four are instances of a person nicknamed "Big Rig," and three are instances of a tractor nicknamed "Big Rig One." There is not a single use in which "big rig" refers to large or heavy duty equipment or gear. There are 0 instances of "small rig."
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