TTAB Test: Is CHEF'S CUBE Merely Descriptive of Vacuum Packaging Machines?
Joseph E. Sielski applied to register the mark CHEF'S CUBE for "vacuum packaging machines for sealing plastic pouches" (Int'l Class 7), but the USPTO refused registration under Section 2(e)(1), deeming the mark merely descriptive of the identified goods. The examining attorney argued that such machines are used by chefs and are commonly cube-shaped. Applicant asserted that its machines may be used by individuals other than chefs. How do you think this came out? In re Joseph E. Sielski, Serial No. 86032662 (May 21, 2015) [not precedential].
The examining attorney relied on dictionary definitions of "chef" and "cube," as well as on numerous website pages displaying vacuum packaging machines for sealing plastic pouches containing food. [Applicant's device is shown above].
The evidence established, and applicant acknowledged, that vacuum packaging machines may be cube-shaped and may be used by chefs. But the evidence failed to show that a cubic shape is a significant feature of those machines.
The evidence ... clearly indicates that vacuum packaging machines are produced in a variety of shapes other than cubes, strongly suggesting that the cube shape of Applicant’s goods is an arbitrary, aesthetic or practical choice of product design. The Examining Attorney fails to explain how the cubical shape of Applicant’s goods is a significant feature, aspect or characteristic of vacuum packaging machines such that the mark CHEF’S CUBE may be merely descriptive of thereof.
Distinguishing several prior rulings, the Board observed that here the mark describes an intended user and one of may shapes in which the goods may be made. It noted that a mark like CHEF'S VACUUM may describe an end user and a significant characteristic of the goods. But CHEF'S CUBE does not.
And so the Board reversed the refusal.
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TTABlog note: Doesn't "cube" describe the shape of applicant's goods? Should CUBE be disclaimed?
Text Copyright John L. Welch 2015.