TTAB Test: Which One of These Four Mere Descriptiveness Refusals Was Reversed?
By my estimation, somewhere around 80-85% of all Section 2(e)(1) mere descriptiveness refusals that reach the TTAB are affirmed on appeal. Well, here are four appeals that were decided this month. One refusal was reversed. Which one, pray tell? [Answer in first comment].
In re Tesher, Serial No. 85405171 (July 10, 2015) [not precedential] [Mere descriptiveness refusal of COLLEGE BIDS for "On-line trading services in which a seller posts items to be sold at a set price; online trading services in which a seller posts items to be sold in an auction-style format where bidding is done electronically; and providing evaluative feedback and ratings of sellers' goods and services, the value and prices of sellers' goods, buyers' and sellers' performance, and delivery and overall trading experience in connection with the foregoing, all for commercial purposes," and a further refusal based on failure to disclaim COLLEGE as to feedback and ratings services.]
In re Masco Corporation of Indiana, Serial No. 86037351 (July 22, 2015) [not precedential]. [Mere descriptiveness refusal of DOWNPOUR for "plumbing products, namely showerheads and handheld showers."]
In re Dipyourcar.com LLC, Serial No. 86165003 (July 23, 2015) [not precedential]. [Mere descriptiveness refusal of DIP PEARLS for "Paint additive made of recycled material to add texture, color, or reflection; Textured additives for paint."]
In re PJCL Hughes Family Trust, LLC, Serial No. 86109353 (July 23, 2015) [not precedential]. [Mere descriptiveness refusal of REVERSE IONIZER for "water treatment equipment, namely, an electromagnetic water activator for influencing the energetic quality of water by amending the information contained in the clusters of water molecules."]
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TTABlog comment: See any WYHAs here?
Text Copyright John L. Welch 2015.
posted by John L. Welch @ 7/29/2015
14 comments
14 Comments:
The COLLEGE BIDS refusal was reversed, as was the disclaimer requirement.
For sure. The fact that the services may have been marketed to or used primarily by college students does not mean that "college" is descriptive for the services.
Downpour and Dip Pearl sure strike me as suggestive. Or has the "suggestive" category been shown the ash-heap of history?
Wow. I guessed Dip Pearls.
Wow, I guessed Dip Pearls. Or Downpour!
I was way off as well; were I the applicant I would appeal DOWNPOUR and DIP PEARLS.
Anonymous at 11:00am: You would lose that DOWNPOUR appeal because the evidence isn't on your side. As the Board stated, "Applicant’s position that its mark only suggests the notion of creating the feel of a heavy rain with its showerhead might be persuasive if the evidence from the various websites did not show that DOWNPOUR has come to be used, as noted, as the name for a type of showerhead or as a term to describe the water flow from the showerhead."
You must always look at the evidence. This was a WYHA in view of the evidence.
I agree that Downpour and Dip Pears are suggestive.
Agreed... I guessed Dip Pearls.
I missed it too. DIP or DOWNPOUR I thought. Guess I will have to read these to try and understand where the Board is coming from today.
Downpour. Seriously?
...another for DIP PEARLS.
This was a tough one. And probably only REVERSE IONIZER would qualify as a WYHA candidate.
Freiburger is absolutely correct about DOWNPOUR.. it certainly sounds suggestive without viewing the evidence and knowing the terms of art in the shower head industry, but a simple search online for "downpour shower" and you'll quickly see that this term is a specific category of shower heads. e.g. https://www.plumbingsupply.com/downpourshowerheads.html
Agreed that this and REVERE IONIZER are WYHA.
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