Test Your TTAB Judge-Ability On These Four Mere Descriptiveness Refusals
Here are four recent appeals from mere descriptiveness refusals under Section 2(e)(1). Let's see how you do with them, keeping in mind that, by my estimation, the Board affirms more than 80% of these refusals. [Answers in first comment].
In re The Rainmaker Agency, LLC, Serial No. 85743797 (November 3, 2014) [Mere descriptiveness refusal of THE RAINMAKER AGENCY for "business management services, namely, sales management consulting services; marketing services, namely, providing independent sales representation; business development services"].
In re Pacific Coast Feather Company, Serial No. 85712273 (October 31, 2014) [not precedential]. [Mere descriptiveness refusal of STRETCHKNIT for "mattress pads"].
In re Sirius Products, Inc., Serial Nos. 85199591 and 85199615 (October 31, 2014) [not precedential]. [Mere descriptiveness refusal of WATERLESS BATH for "pet shampoo and conditioner" and for "medicated pet shampoo"].
In re Blue Lotus Lifestyle LLC, Serial No. 85937447 (October 30, 2014) [not precedential]. [Mere descriptiveness refusal of LOTUS for "drinking water with vitamins and botanicals"].
Read comments and post your comment here.
TTABlog note: See any WYHAs here?
Text Copyright John L. Welch 2014.
posted by John L. Welch @ 11/06/2014
13 comments
13 Comments:
All were affirmed.
Hell yeah. The first and last. "The Rainmaker Agency" - I have no idea what they do. "Lotus" - I have no idea what's in it. Even if it has lotus flowers in it, that word is so evocative and imagery-laden that it can't possibly be said to merely describe the product. Boo hiss.
I tend to agree except on "LOTUS" which on its face doesn't scream merely descriptive of a form of drinking water.
THE RAINMAKER AGENCY and LOTUS don't seem descriptive to me. They don't immediately call to mind any particular product or service.
re: LOTUS... the TTAB stated: "In addition to the above evidence clearly showing a usage of various forms of the lotus plant, and parts thereof, as ingredients of beverages, Applicant actually stated
in its response of February 10, 2014, that “there is some lotus extract in some of the
product."" x-ref: oops!...
Even if the water is "Drinking water with vitamins and botanicals", I don't think "LOTUS" is truly descriptive, perhaps suggestive?
"THE RAINMAKER AGENCY" seems to be a stretch also. I think it's rather suggestive of what is aspires to be as oppose to describing the services it provides.
About the LOTUS decision, from the decision: "Applicant actually stated in its response of February 10, 2014, that 'there is some lotus extract in some of the product.'"
RAINMAKER and LOTUS both seem suggestive to me. Surprised they were affirmed.
"LOTUS" is not merely descriptive of water, I agree with the other comments. Boo hiss is right.
LOTUS is the sole wording in the mark, the goods say that the water includes botanicals (a lotus is a botanical) and applicant admitted that the water does in fact include lotus. There is also evidence that it is fairly common for water to include lotus. How isn't that descriptive?
Wow! LOTUS! I assume you don't open the can and take out a lotus flower and plant it in your pond. That's a very bad decision in my humble opinion.
The rainmaker decision is a joke.
This is why the Office wins more than 80% of descriptiveness refusals that are appealed to the board. It isn't even a close question as to whether LOTUS is descriptive as used by the applicant. Wow.
Post a Comment
<< Home