WYHA? TTAB Affirms Disclaimer Requirement: ARMOUR PIERCING Merely Descriptive of Archery Arrows
I recently finished the audiobook of James Dickey's Deliverance, and I'm so ready for this case! The Board affirmed a Section 6(a) requirement that applicant Aldila Golf disclaim the term ARMOUR PIERCING in its applied-for mark VICTORY ARMOUR PIERCING for "archery arrows; archery equipment, namely, arrow nocks, nock inserts, arrow points, arrow tips, arrow shafts and fletching." Would you have appealed? In re Aldila Golf Corp., Serial No. 85477282 (September 26, 2013) [not precedential].
Examining Attorney Angela Micheli maintained that ARMOUR PIERCING is merely descriptive of the identified goods. She submitted a definitions of "armour-piercing," "armour," and "pierce," online discussions of arrows penetrating body armor, a Wikipedia article on a "ballistic vest," a 1978 patent discussing armor-piercing projectiles and arrows, and third-party websites evaluating the penetrating abilities of arrows sold under applicant's mark.
Applicant Aldila provided a Wikipedia article concerning the armour-piercing capability of the bodkin point, a type of arrowhead used in the Middle Ages.
The Board noted that applicant's own website emphasized the penetrating ability of its arrows offered under the mark. The Board found that the dictionary definitions alone sufficed to demonstrate the descriptive significance of ARMOUR PIERCING.
Aldila offered three arguments, all of which missed the target. First it contended that ARMOUR PIERCING has no significance vis-a-vis archery arrows because such arrows are not used in combat. Second, modern day archery arrows are not designed, built, or used to pierce armor. Third, none of its competitors uses the term.
The first two arguments were belied by the evidence. There exists a market for medieval-style archery arrows and equipment. Applicant's identification of goods is broad enough to include replica goods. Furthermore, Aldila ignores the modern uses of "armor," which includes armor plating for vehicles and shelters. In any case, the evidence included online discussions of the ability of arrows to pierce modern body armor.
With regard to Aldila's competitors, it is black letter law that a term may be descriptive even if an applicant is the first and only user of the term.
And so the Board found ARMOUR PIERCING to be merely descriptive of the identified goods, and it affirmed the disclaimer requirement. It allowed applicant thirty-days to submit the required disclaimer, in which case this decision would be set aside.
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TTABlog note: Well? WYHA?
Text Copyright John L. Welch 2013.
posted by John L. Welch @ 10/25/2013
3 comments
3 Comments:
I may be biased because I file many applications related to these goods, but I would have appealed. Archery arrows are not used for piercing armor. They're only for hunting or target practice/competitions. The mark is only descriptive as it relates to some archaic and obsolete use of the goods. The fact that no other competitors use the mark must have some relevance because the entire point of a descriptiveness rejection is to allow competitors to freely describe their own goods. If no one else is using those terms to describe the goods, then maybe those terms aren't actually descriptive??? I just can't agree with a decision that says the mark is descriptive of a use of the goods that no longer exists in reality.
I have one legal comment and one social comment.
The legal comment is that the examiner probably could/should have issued an alternative misdescriptiveness refusal, although I'm not sure if that is consistent with a disclaimer requirement (I only read the TTABlog summary which didn't mention one so I'm assuming there was no misdescriptiveness refusal).
The social comment is that I would hope there is no real market for this because I'm not aware of any armour archery targets and if "armour" refers to protective devices like bullet-proof vests worn by people who are potential targets for the arrows, that would be pretty awful.
Then again, on the WYHA question, maybe the whole purpose of the appeal was not a legal move but a PR move to dispel any inferences that the arrows could be designed to pierce armour in protective devices worn by people.
Overcoming disclaimer requirements is nearly as hard as proving fraud. I've never had much luck with disclaimers.
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