Thursday, August 23, 2012

"THE BEST LITTLE ART WALK IN TOWN" Not Merely Descriptive of Art Exhibitions, Says TTAB

The Board reversed a Section 2(e)(1) refusal to register the mark THE BEST LITTLE ART WALK IN TOWN, finding it not merely descriptive of "Art exhibitions; organizing cultural and arts events." Consumers would perceive the oxymoronic combination of BEST and LITTLE to be not merely laudatory, but instead would view the mark as unitary, alluding to the well-know musical and motion picture "CATS" "The Best Little Whorehouse in Texas." In re North Beaches Art Walk Association, Inc., Serial No. 85139899 (August 10, 2012) [not precedential].

The Examining Attorney relied on dictionary definitions in contending that the mark is descriptive of the quality, feature and characteristics of Applicant’s art exhibitions: i.e., "applicant provides art exhibitions and events in the form of ‘art walks’ superior in character and quality to other similar events in town, which can be seen in a relatively short period of time."

The Board, however, ruled that the mark is unitary, and therefore that the examining attorney had improperly dissected the mark. It agreed with the Applicant that the mark is an "oxymoronic connotation" that raises it above the merely descriptive. Any laudatory aspect of BEST is "diminished by the notion that the event is LITTLE." The Board agreed that the "selfdeprecating" word LITTLE provides a connotation that directly contrasts with BEST." And vice versa. [I'm not buying this argument - ed.]

The Board was particularly impressed by the fact that the mark parallels the title of the well-known Broadway musical "The Best Little Whorehouse in Texas" Given the vast exposure of that title to the public, the parallel between the applied-for mark and the title would be obvious.

Applicant pointed to six other registrations with similar parallels to the title. [Not included was my common law mark, "The Best Little TTABloghouse on the Internet" - ed.]. Even most of the evidence submitted by the PTO showed that third parties have adopted and used names based on that title.

The Board therefore concluded that the mark as a while is not merely descriptive. Instead, it is akin to the "Polly Pitcher" mark, which was recognized to be more suggestive of "Molly Pitcher of Revolutionary time" than descriptive of polyethylene.

And so the Board reversed the refusal, further observing that, because the mark is unitary, disclaimer of the term ART WALK is not required.

Text Copyright John L. Welch 2012.


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