TTAB Test: Is PREGNANCY TEXT Merely Descriptive of Simulated Pregnancy Messages?
The USPTO issued a Section 2(e)(1) refusal of the mark PREGNANCY TEXT, finding it to be merely descriptive of "Education and entertainment services, namely, providing audio, video, and prose presentations featuring a simulated pregnancy experience in mobile wireless form in both SMS and MMS formats." The Examining Attorney maintained that the mark immediately informs consumers that applicant sends text messages regarding pregnancy. Applicant argued it mark comprises a double entendre or pun (think "pregnancy test"), and that its services provide "simulated pregnancy experience" in mobile form, that show teens that "becoming parents can change their lives." [Tell me about it - ed.]. How do you think this came out? In re Do Something!, Inc., Serial No. 85696594 (October 29, 2015) [not precedential].
Applicant pointed out that its services are not a "pregnancy test" since they do not determine if anyone is pregnant. It contended that consumers will readily associate PREGNANCY TEXT with the extremely common expression "pregnancy test," and the latter term is at most suggestive of its services. In short, according to applicant, PREGNANCY TEXT "creates an incongruous twist of the actual meaning of 'Pregnancy Test.'"
The Board, however, agreed with Examining Attorney Shaila Lewis that there is no double entendre here because the terms "Pregnancy Text" and "Pregnancy Test" are distinct phrases that have entirely different meanings. "To be a double entendre, the actual words in the mark PREGNANCY TEXT should have an alternate meaning and ... that meaning must be readily apparent to purchasers from the mark itself." Here, PREGNANCY TEXT "means exactly what it says, namely, a text message about pregnancy-related matters, including new born babies."
Applicant pointed out that its services concern "phone babies," not real babies. The Board grasped the difference, but pointed out that both simulated pregnancy and real pregnancy "deal with the subject of 'pregnancy' and are therefore appropriately describe by the word 'pregnancy' in the term PREGNANCY TEXT."
In sum, customers would understand that PREGNANCY TEXT describes the purpose and/or a feature of the services, namely, "that text messages are sent that relate to the subject of pregnancy."
The Board therefore affirmed the refusal.
Read comments and post your comment here.
TTABlog comment: Well, what do you think?
Note the Board's discussion of applicant's citation to a non-precedential TTAB decision. You can do it, but it is not encouraged. Non-precedential decisions are obviously not binding on the Board and the Board will generally not discuss them. [Too many such citations may just annoy the Board, which is something you want to avoid].
Text Copyright John L. Welch 2015.