TTABlog Test: How Did These Four Appeals From Mere Descriptiveness Refusals Turn Out?
The TTAB recently ruled on the appeals from the four Section 2(e)(1) mere descriptiveness refusals summarized below. Let's see how you do with them, keeping in mind that the Board affirms, by my calculation, some 90% of these refusals. Answer(s) will be found in the first comment.
In re DeSean Ramsey DBA BearArms Bracelets, Serial No. 87708731 (March 18, 2020) [not precedential] (Opinion by Judge Cindy B. Greenbaum). [Mere descriptiveness refusal of BULLET BRACELET for "Bracelets; Bracelets made of paracord; Jewelry" [BRACELET disclaimed]. Applicant argued that its goods are made from spent (fired) or empty pistol shell casings and paracord, rather than actual bullets.].
In re ZF Friedrichshafen AG, Application Serial No. 79231720 (March 17, 2020) [not precedential] (Opinion by Judge Angela Lykos). [Section 2(e)(1) mere descriptiveness refusal of SOUND.AI for "Sensors for detecting sound waves; electronic control and regulating apparatus for operating motor vehicles; driver assistance systems for motor vehicles, based on the detection of sound waves; computer hardware and software for operating motor vehicles." Applicant pointed out the lack of evidence of third-party use of “sound” and “AI” together to describe any goods or services.].
In re Night Shift Brewing, Inc., Application Serial No. 87321948 (March 17, 2020) [not precedential] (Opinion by Judge David K. Heasley). [Mere descriptiveness refusal of BEAN PORTER for "beer; porter." Applicant maintained that the mark is a double entendre because "the word BEAN evokes the city of Boston (oft nicknamed 'Beantown'), as it is located in Everett, Massachusetts, on the outskirts of the greater Boston metropolitan area, and uses BEAN PORTER in collaboration with Bean Snowboards, also located in the Boston area."].
In re Acacia Group LLC, Serial No. 87422774 (March 17, 2020) [not precedential] (Opinion by Judge Jonathan Hudis). [Mere descriptiveness refusal of REPOETF in the stylized form shown below, for various financial and advisory services. Applicant asserted, inter alia, that the stylization of its mark, with the "ETF" portion appearing like a mathematical exponent, makes it merely suggestive].
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TTABlog comment: See any WYHAs here?
Text Copyright John L. Welch 2020.
posted by John L. Welch @ 3/23/2020
6 comments
6 Comments:
All four refusals were affirmed.
Would "Night Shift" come out differently (or not even end up on appeal) if they disclaimed "Porter"?
It does seem that the decision left open the possibility of "Beantown Porter" for beer with vanilla/coffee beans would be a double entendre--and it's probably a better name
Bean Porter?
It is merely descriptive of someone who carries beans, but not for beer!
About a year ago the TTAB held "Blueberry Muffin" to be generic for beer. I think the Night Shift people are fortunate to have avoided a rejection on genericness considering the TTAB's trending treatment of that issue.
And BTW, Night Shift's beer is flavored with vanilla and coffee beans, so "bean" is just as descriptive as "porter."
I think that Night Shift would not be successful if they were to appeal the TTAB’s refusal for “mere descriptiveness.” Although they claim that the word “bean” is a double entendre for Bean town and for Bean snowboarding, the trade dress and brand indicia is that of two different types of “beans.” The product packaging shows is a dark brown color, which is the color of coffee or pure vanilla extract. Additionally, there are subtle graphic images that are a coffee bean and a vanilla flower. Because this is a vanilla bean and a coffee (bean) porter, I do not think that Night Shift brewing would be successful.
Additionally, upon a quick search of “bean porter,” I found that there are a number of other breweries that have a “[vanilla] bean porter” offering. One example is Harpoon Brewery. Harpoon is also based in the Boston area and they are using bean to refer to the vanilla and coffee flavors of that porter, rather than to refer to “Bean town.” Furthermore, the bean snowboarding reference does not seem persuasive, because the average consumer would not associate the two when seeing this in the local supermarkets. I live about 5 minutes walk from the brewery and frequent many grocery stores locally that service the area. Based on the name of the beer, it seems to describe the flavor, rather than suggest the origin of Boston or the relationship to the brewing company.
Night Shift may be more successful if they named the porter Bean porter and it was not flavored like coffee or vanilla or if the trade dress did not show descriptive images of the beer. It would be even more persuasive if the product packaging had images of the snowboarding company or the Boston skyline.
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