Wednesday, October 29, 2014

WYHA? TTAB Affirms Mere Descriptiveness Refusal of POLITICS FUNNIEST RAP BATTLES

The USPTO refused registration of the mark POLITICS FUNNIEST RAP BATTLES, deeming it merely descriptive of entertainment services featuring scripted and improvised rap battles between political figures. Examining Attorney Christopher Law relied on dictionary definitions of the constituent words, and pointed to the language of Applicant's recitation of services. Would You Have Appealed? In re Wison, Serial No. 85788703 (October 27, 2014) [not precedential].

A combination of descriptive words is not necessarily merely descriptive. The combination may create a unitary mark with a nondescriptive meaning or a bizarre or incongruous meaning. The examining attorney maintained that the individual words are descriptive and the combination is merely descriptive and laudatory of the services.

Applicant Dan Wison lamely, and rather incoherently, argued as follows:

The characteristics of Applicant’s services are such that they are suggestive and descriptive at the same time. Upon perception of the mark, the consumer may recognize
that [it] is for video content. However, the mark only suggests at the show’s format. The mark suggests that [sic] show involves politics and rap battles, but it does not reveal much about the content, how it is structured, or who is performing.

The Board was understandably unimpressed, and it agreed with the examining attorney: "the phrase POLITICS FUNNIEST RAP BATTLES immediately informs potential consumers of Applicant's entertainment services about the subject matter or content of the material, namely funny rap battles involving politics or in Applicant's words, 'rap battles between political figures.'"

Applicant Wison further asserted that there are "any number of other alternative marks that a competitor could use to describe a similar service." The Board pointed out, however, that the existence of other descriptive terms "does not redeem an otherwise merely descriptive word or phrase."

Finally, Applicant contended that competitors do not need to use the applied-for mark to describe their services, and that he was not aware of any other entity using the same phrase for entertainment services. The Board observed once again, however, that even if applicant were the first and only user of the mark, the mark would still be merely descriptive under Section 2(e)(1).

And so the Board affirmed the refusal.

Read comments and post your comment here

TTABlog comment: Well, would you have?

Text Copyright John L. Welch 2014.


At 10:06 AM, Anonymous Joe Dreitler said...

No. Common sense and the case law is overwhelming. Nothing about that tag line that is not merely descriptive - or worse. Gives us something to talk about and the Board something to write about, I guess. Query - do people charge money for filing these ex parte appeals on such losers?


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