Affirming Refusal, TTAB Says "HOURS OF ENERGY NOW" Not Being Used as a Trademark
The Board affirmed a refusal to register the applied-for mark HOURS OF ENERGY NOW for dietary supplements and "energy shots," because the phrase as it appears on applicant's specimens of use, fails to function as a trademark. In re Innovation Ventures, LLC, Serial No. 85637294 (March 25, 2014) [not precedential].
Of course, a phrase or slogan is not per se unregistrable, but it must serve as a source indicator to qualify as a trademark or service mark. The critical question is how the public perceives the purported mark.
Examining Attorney Won Teak Oh contended that consumers will not see the phrase as a trademark because it appears only in conjunction with other phrases touting the characteristics of the product.
The Board scrutinized applicant's specimens of use, observing that in two of them the phrase "Hours of energy now" appears as one of a series of "bullet points" providing informational text, in less prominent position than the mark 5-HOUR ENERGY. Third-party advertising evidence confirmed that consumers understand the phrase as providing information that the product is fast acting and long lasting. Contrary to applicant's argument, the PTO need not show that the phrase is in common, everyday use.
Applicant argued that, because the Examining Attorney had withdrawn a Section 2(e)(1) mere descriptiveness refusal, the phrase must be a merely suggestive mark. But that was a nonsequitur because the phrase was not functioning as a mark at all.
In sum, the Board found that the proposed mark, as used by applicant, "merely informs prospective purchasers that applicant’s products will provide an immediate boost of energy upon consumption and that the increased levels of energy will last for several hours." It is therefore "incapable of functioning as a trademark." [Incapable? Maybe not, if used in a proper manner - ed.].
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TTABlog comment: The phrase on the specimen above has an asterisk at the end. What if that were a "TM"?
Text Copyright John L. Welch 2014.