GUMMY BITES Deceptively Misdescriptive of Dog Treats, Says TTAB
The Board affirmed a Section 2(e)(1) refusal to register the mark GUMMY BITES, finding it deceptively misdescriptive of "dog treats, namely, treats that are a soft solid without having the attribute of being a gum or chewy substance that require mild to moderate forces to masticate a few times before breaking apart, being ground down and being swallowed." Although the product has not yet been formulated, applicant stated that it "will not be a traditional gummy product." In re Green Bark Gummies, Inc., Serial No. 86283461 (April 8, 2016) [not precedential].
The examining attorney relied on dictionary definitions of GUMMY and BITES, on third-party use of these terms in connection with dog treats and dog nutrition items, and on third-party registrations showing the descriptiveness of the individual words. The Board noted that applicant disclaimed GUMMIES in its registered mark GREEN BARK GUMMIES for dog treats.
The Board concluded that GUMMY BITES immediately describes characteristics of dog treats. A consumer would understand the mark to mean that the product is a gummy, bite-sized treat. The identification of goods alone shows that applicant's product is not "gummy." And so the PTO established the first prong of the deceptive misdescriptiveness test: the mark misdescribes the goods.
Moreover, as to the second prong of the test, customers are likely to believe the misrepresentation. The evidence showed that dog treats may be "gummy" and are so describde by consumers and the industry. And "bites" is a common term to describe the size of dog treats.
Applicant asserted that the list of ingredients (as yet unformulated) would disabuse the consumer of any false understanding, but the Board pointed out that a consumer would have to comb through the list and have knowledge of the chemical properties of each ingredient. That is not the proper approach. In short, a consumer upon seeing the mark GUMMY BITES would likely believe that those bites have a gummy characteristic.
The Board therefore affirmed the refusal.
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TTABlog comment: Seems like a Section 2(a) deceptiveness refusal would apply as well. The belief that the product is "gummy" might well be a material factor in the decision to purchase.
Text Copyright John L. Welch 2016.
posted by John L. Welch @ 4/15/2016
1 comments
1 Comments:
I was wondering why such a strange description.
I see it started simply as "Dog Treats".
The Examiner issued a descriptiveness refusal because GUMMY means "made of, containing, or covered with gum or a sticky or chewy substance."
It was amended to "Dog treats, namely, treats that are a soft solid without having the attribute of being a gum or a sticky or chewy substance that require mild to moderate forces to masticate a few times before breaking apart, being ground down and being swallowed"
I think this was a mistake and the better option would have been to make the effort to place on the Supplemental Register. As an ITU, maybe without a product, that was not possible. But, I would guess the product could have been produced and sold in less time for less money than an appeal.
Instead, they went as far up the ladder in the USPTO as they could, Managing Attorney, Group Director..., then filed an appeal and lost.
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