Tuesday, September 25, 2012

TTAB Affirms Disclaimer Requirement of "PLANTABLE PACKAGING" for Seed-Infused Packaging Material

The Board affirmed a Section 6(a) requirement that Applicant UFP Technologies disclaim the term PLANTABLE PACKAGING in the applied-for mark MF PLANTABLE PACKAGING, finding the term to be merely descriptive of paper and cardboard material infused with seeds. Countering UFP's argument that the term is incongruous, Examining Attorney Andrea Koyner Nadelman submitted dictionary and website evidence establishing that "plantable packaging" is used frequently "to describe goods that have a second life as a plant product after serving an initial purpose as, for example, a party invitation, a personal journal, or product packaging." In re UFP Technologies, Inc., Serial No. 85178012 (September 12, 2012) [not precedential].

Applicant UFP maintained that the term "plantable packaging" creates an inherent incongruity, and at worst only vaguely suggests a characteristic of the goods.

[M]any objects are not thought to be plantable, e.g., automobiles, furniture, jewelry, and packaging. Packaging is a container which is used by consumers to hold another item. Packaging is not meant to be planted into the ground. People do not buy packaging to plant it. The use of the term PLANTABLE with PACKAGING together creates an incongruity.

According to Applicant, imagination, thought, or perception are needed to decide what can be done with these goods once they have served their purpose. Since packaging is generally not used to grow vegetation, Applicant should not have to disclaim the term.

The Board, however, found no incongruity. Although UFP may be correct that there are no "plantable automobiles," and also that a consumer would not first think of product packaging when he or she wants to plant greenery. Nonetheless, the record evidence showed that third-party vendors have been using the term "plantable packaging" to describe biodegradable packaging infused with seeds. Although some of the webpages explain to the reader how items of biodegradable packaging infused with seeds actually work, this is consistent with fact that this technology is relatively new.

Concluding that "plantable packaging" immediately conveys knowledge of a significant feature of the involved goods, the Board affirmed the disclaimer requirement.

TTABlog note: Loyal reader Frank Terranella sent a photograph and asked this question: "What do you mean there are no plantable automobiles?"

Text Copyright John L. Welch 2012.


At 9:55 AM, Anonymous Mark Donahey said...

John, the header for the decision reads "This Opinion is NOT a Precedent of the TTAB." Am I missing something?

At 11:30 AM, Blogger John L. Welch said...

Hmmm. The FOIA page says it's precedential. I shall investigate.

At 2:58 PM, Anonymous Anonymous said...

Only one planted automobile? In Texas, where I used to live, we have a whole car farming RANCH in Amarillo! See http://www.roadtripamerica.com/roadside/Texas-Amarillo-Cadillac-Ranch.htm


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