TTAB Test: Is GROCERY GEAR Merely Descriptive of Reusable Grocery Bags?
The USPTO refused to register the mark GROCERY GEAR in the stylized form shown below, finding it to be merely descriptive of "reusable grocery bags." Applicant Penny Johnson appealed, arguing that the lack of evidence of third-party use of GROCERY GEAR in a descriptive manner established that the mark is not merely descriptive. How do you think this came out? In re Penny Johnson, Serial No. 86017471 (June 22, 2015) [not precedential].
The Board found that this evidence established the descriptive meaning of GROCERY and GEAR for applicant's goods. The combination of the two words, it concluded, did not evoke any new or unique commercial impression.
Applicant itself has described its goods as “reusable grocery bags,” and the manner in which Applicant promotes its goods, i.e., “pack & transport grocery system,” consumers would understand that the applied-for mark describes the purpose and/or a feature of the goods, namely, that they are bags intended to carry items from a grocery store."
As for applicant's argument that no third-party uses the phrase GROCERY GEAR, the Board pointed out that a term may be merely descriptive even if the applicant is the first and only user of same. The Board also noted that "some" of the evidence showed third-party use of "grocery gear."
The Board found nothing incongruous in the mark, and the stylization of the mark did not detract from its descriptiveness. Although any doubt regarding mere descriptiveness must be resolved in favor of the applicant, the Board had not doubt here in affirming the refusal to register.
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TTABlog note: I think "gear" is too vague a term to be descriptive here. A bag is not "gear," by my way of thinking. The word tells you nothing more about the goods than what you would know by looking at them: obviously a bag for carrying groceries. What do you think?
Text Copyright John L. Welch 2015.