Wednesday, September 30, 2015

Precedential No. 35: TTABang! SMART SERIES Merely Descriptive of Firearm Safes

The Board affirmed a Section 2(e)(1) refusal to register the mark SMART SERIES, finding the mark to be merely descriptive of "metal safes specifically designed to store firearms." The Board agreed with Examining Attorney Susan Leslie DuBois that the mark describes applicant's safes as "belonging to a larger product line" and featuring "a particular level of  technology, such as microcomputers or microprocessors." In re Cannon Safe, Inc., 116 USPQ2d 1348 (TTAB 2015) [precedential].

Applicant feebly argued that even if SMART SERIES conveys some information about applicant's goods using "some sort of technology and that they are part of some sort of line of products," such information is vague and not conveyed with sufficient particularity to invoke a Section 2(e)(1) bar. Moreover, Applicant asserted, even if the words "smart" and "series," standing by themselves, would each be descriptive, the phrase SMART SERIES is registrable because it is a combination mark with an incongruous meaning. [And what meaning is that? - ed.].

Applicant indicated that its safes will be equipped with microprocessors and microcomputers. The Board therefore concluded that the goods have a "smart" component, and applicants identification of goods is broad enough to include gun safes with microprocessors. Moreover, the evidence showed that the word "smart" in the field of safes has been used to describe those that include microprocessors to provide safety. In fact, contemporary gun safes include built-in microprocessors for such features as fingerprint recognition and tampering protection.

The Board found that consumers will readily understand from the word SMART that applicant's gun safes contain automated, technological devices such as microprocessors that make them "smart."

As to the word SERIES, applicant uses the word "series" for several other lines of gun safes. Moreover, it is not uncommon [litotes?! - ed.] in the industry to consider safes as a "series." For example, Liberty Safes offers the "Lincoln Series."

The combination of SMART and SERIES "does not result in a mark which as a whole has a nondescriptive or incongruous meaning." Each component retains its merely descriptive significance, resulting in a mark that is merely descriptive. Consumers will understand SMART SERIES as identifying "another of Applicant's various series of safes, i.e., a line of safes offering enhanced capabilities made possible by the use of microprocessors."

The Board therefore affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: Is this a WYHA? My goodness, the "precedential" tag is certainly thrown around loosely these days. If these safes did not contain microprocessors, would the mark be deceptive under Section 2(a)?

Text Copyright John L. Welch 2015.


At 8:11 AM, Blogger Brad Salai said...

Litotes ! a new word for me, Not bad.

At 9:35 AM, Anonymous Anonymous said...

The Board's clearly trying to get its numbers up before the end of the fiscal year.

As for "smart," there may be some value in this decision for Examining Attorneys. "Smart" really is a meaningless term--there are so many different ways and degrees that something today can use technology that "smart" doesn't even approach providing any particularity about qualities of the goods. And yet, the term is so widely used that it also probably lacks any real source identifying capability. Now the EAs have a direct legal hook to use for their refusals.

At 10:47 AM, Anonymous Anonymous said...

"Smart" describes digital/computer technology or an automated process? What world does the Board live in?

At 6:49 PM, Anonymous Anonymous said...

I think the board would have a hard time calling it deceptive. Smart could be complimentary and geared toward the buyer who is 'smart' for protecting his guns and his family.


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