TTAB Test: Must "47AG" Be Disclaimed for SiIver Jewelry?
The USPTO refused registration of the mark COOMI 47AG for "silver jewelry," absent a disclaimer of "47AG." Applicant appealed. Examining Attorney Patty Evanko maintained that "Ag" is the chemical symbol for silver and "47" is silver's atomic number, and so "47AG" describes the material composition of applicant's jewelry. Applicant argued that typical jewelry shoppers would not immediately recognize that meaning of "47AG." How do you think this came out? In re Bhasin Enterprise Corporation, Serial No. 86025037 (January 2, 2015) [not precedential].
The Board pointed out that silver jewelry "is a consumer item of potentially universal appeal to individuals." The subject application contains no limitation as to the nature of the consumers, and so the Board must presume that they include "all normal customers for such goods, including individuals who have knowledge of the meaning of the terms 'Ag' and '47.'" Moreover, the Board has previously recognized the descriptive significance of chemical symbols (e.g., ZN-PLUS, MN-PLUS, and CA-PLUS). And the terms "Ag" and "47" are not jargon, but long-established and universally recognized scientific terms that may even be learned in high school. Thus many consumers, even those without a scientific background, would be aware of the terms.
There is nothing incongruous or unique about the combination of "47" and "AG." The evidence showed that they commonly appear together or in close proximity (see illustration above). The Board disagreed with applicant's argument that a multi-stage reasoning process would be required in order to derive an understanding of the term "47AG." When used together, "47" and "AG" merely reinforce each other in meaning.
The Board therefore found "47AG" to be merely descriptive of silver jewelry, and it affirmed the requirement of a disclaimer of the term. Applicant was allowed thirty days to submit the required disclaimer.
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TTABlog note: What is element 43? What is the atomic number of Kryptonite? Would "46AG" be half-descriptive?
Text Copyright John L. Welch 2015.