TTAB Test: Which Of These Three Mere Descriptiveness Refusals Was Reversed?
By my recent estimation, somewhere around 90% of all Section 2(e)(1) mere descriptiveness refusals that reached the TTAB in 2016 were affirmed on appeal. Well, here are three appeals that were decided within the past month. One refusal was reversed. Which one, pray tell? [Answer will be found in first comment].
In re GMR, LLC, Serial No. 86338948 (January 9, 2017) [not precedential]. [Refusal of BLACKJACK CHAT for "Computer game software; computer game programs; electronic game programs and for "Etertainment services, namely, providing online computer and electronic games through a social networking website."
In re Panasonic Avionics Corp., Serial No. 86499954 (January 5, 2017) [not precedential]. [Refusal of FLIGHTLINK for "Meteorological forecasting; providing meteorological information; providing weatherinformation; weather forecasting; weather information services; weather reporting"].
In re Watered Up, LLC, Serial Nos. 86310513; 86310537; 86310550 (December 30, 2016) [not precedential]. [Refusal of AQUA CRISPS, in standard character and design forms, "for tapioca-based snack foods; tapioca chips"].
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Text Copyright John L. Welch 2016.
posted by John L. Welch @ 1/11/2017
8 comments
8 Comments:
The second one (FLIGHLINK) was reversed.
I think the third should have been reversed as well--what are "water based" crisps that are dehydrated?!
I agree with Anonymous, both "Aqua Crisp" and "Flightlink" should have been reversed.
Andy
Me three.
I agree that the second, FlightLink, should be reversed because it is more than merely generic. I would argue that this could be argued as a suggestive mark because of the operation of imagination required to link the mark with the goods and services. FlightLink includes the combined terms of "flight" and "link." Flight solicits several connotations of flying or travel due to the definition of "the action or process of flying through the air." Flight is not generic because it does not describe the genus of the products or services. Flight is not descriptive because it does not impart the information directly of meteorological forecasting. However, one can take the cognitive leap to assume that there is a connection between Flight and aerospace travel and meteorological forecasting, which establishes an argument that flight is a suggestive element of the mark. Link means a relationship between two things or situations, especially where one thing affects the other. Popular connotations of link include chain links or hyperlinks in the digital world. Link is likely to not be seen as generic because it does not describe the genus of meteorological forecasting. However, link may be seen as a descriptive element because it describes the purpose of the product--namely, to connect the meteorological forecasting to a person or system. Taken as a whole, the suggestive element of "flight" and the descriptive element of "link" would most likely result in the mark being seen in the range of descriptive to suggestive.
I agree that the second, FlightLink, should be reversed because it is more than merely generic. I would argue that this could be argued as a suggestive mark because of the operation of imagination required to link the mark with the goods and services. FlightLink includes the combined terms of "flight" and "link." Flight solicits several connotations of flying or travel due to the definition of "the action or process of flying through the air." Flight is not generic because it does not describe the genus of the products or services. Flight is not descriptive because it does not impart the information directly of meteorological forecasting. However, one can take the cognitive leap to assume that there is a connection between Flight and aerospace travel and meteorological forecasting, which establishes an argument that flight is a suggestive element of the mark. Link means a relationship between two things or situations, especially where one thing affects the other. Popular connotations of link include chain links or hyperlinks in the digital world. Link is likely to not be seen as generic because it does not describe the genus of meteorological forecasting. However, link may be seen as a descriptive element because it describes the purpose of the product--namely, to connect the meteorological forecasting to a person or system. Taken as a whole, the suggestive element of "flight" and the descriptive element of "link" would most likely result in the mark being seen in the range of descriptive to suggestive.
Great article btw, as expected from TTABLOG.
Assuming the BLACKJACK CHAT mark actual "goods and services" involved playing blackjack online, which it apparently did / does (see link below), then that one is pretty easy. However, if the first one for BLACKJACK CHAT involved "poker" instead of "blackjack" as the actual online game, would that not create enough distance from descriptiveness to warrant withdrawal of the 2(e)(1)? I checked TESS and it was filed as an ITU. Also http://www.blackjackchat.com/ pretty clearly shows that the mark is associated with playing "blackjack," even tho not disclosed in the described goods and services in the app.
Also, on AQUA CRISPS, I have no idea what that even means, so how can it be descriptive? Maybe someone is still hung up on the distinctions between chips, wafers, and crisps and the generic nature of those terms. Or perhaps it is a conspiracy against the "gluten free" movement. See below. More likely, tho, it was the owner's description quoted below that doomed this revolutionary gluten free snack and relegated it to the Supplemental Register:
"Aqua crisps are a new, original snack with your health in mind. This crunchy chip has the look and texture of a pork rind, but is completely vegetarian and gluten free. The unique recipe uses mostly water, natural smoke flavor and tapioca pearls. Through our patented process, crispy delicious crisps were born." <<-- from: http://aquacrisps.com/our-crisps
Finally, as alluded to above, these folks do not lose out entirely. Presumably the owners of these marks, filed as ITU's but now apparently in use in commerce as shown by links above, will elect the Supplemental Register and seek transfer to the Principal Register in five years. By then, maybe someone will be able to better explain to us all the benefits of eating gluten free snacks while playing online games, and simultaneously checking the weather on FLIGHTLINK.
Hey Wes,
You seem to be right on AQUA CRISPS - the Examiner cited the applicant's website, and also previous filings which described “smoked water-based snack foods, namely, crisps in the nature of tapioca-based crisps.”
Perhaps the applicants may move AQUA CRISPS up in five years, but I believe that the examiners' marching orders are now 5 years alone is generally not sufficient for registration on the Principal Register.
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