TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?
The TTAB recently ruled on the appeals from the three Section 2(e)(1) mere descriptiveness refusals summarized below. Let's see how you do with them. Results will be found in the first comment.
In re Garden Artisans LLC, Serial No. 88705122 (January 24, 2023) [not precedential] (Opinion by Christopher Larkin). [Mere descriptiveness refusal of GARDEN ARTISANS for, inter alia, bird baths, metal arbors, ceramic figures, and works of art made of glass. The applicant argued that the mark, considered as a whole, creates a different commercial impression than the words considered on their own, resulting in a suggestive mark: "the GARDEN ARTISANS mark conjures the idea that a person's garden is like a canvas and the person is like an artist painting on that canvas,"and so “consumers of the goods sold under the mark are to purchase Applicant’s goods so that they can create their own canvas (i.e. garden)."]
In re Nicholas Shane Kouns, dba, Advanced Illness Management Services, Serial No. 88390117 (January 30, 2023) [not precedential] (Opinion by Judge Marc A. Bergsman) [Mere descriptiveness refusal of ADVANCED ILLNESS MANAGEMENT SERVICES for "Downloadable computer application software for mobile phones, namely, software for authorising [sic] access to data bases; Downloadable computer software for authorising [sic] access to data bases" [ADVANCED ILLNESS MANAGEMENT disclaimed]. The applicant maintained that the mark is not merely descriptive because applicant’s database access authorization software does not provide medical services such as advanced illness management services.]
In re Rows GmbH, Serial No. 79299493 (January 31, 2023) [not precedential] (Opinion by Judge Christen M. English). [Mere descriptiveness refusal of ROWS for, inter alia, downloadable software for creating and sharing spreadsheets. Applicant argued that ROWS does not describe a function of the software, which is to create and share spreadsheets and that "[r]egistration … would not (1) inhibit competition in the sale of particular goods or services; or (2) deny freedom of the public to use the word ROWS, creating the possibility of harassing infringement suits."]
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TTABlog comment: How did you do? See any WYHAs here?
Text Copyright John L. Welch 2022.
posted by John L. Welch @ 2/02/2023
5 comments
5 Comments:
All three refusals were affirmed.
ROWS is suggestive, not descriptive, but under the TTAB's precedents, "mere descriptiveness" is broad enough to swallow ever mark that isn't a random selection of six letters designed to foil Amazon brand protection.
People take bites of apples and computers use bytes, therefore APPLE describes a characteristic of computers.
"All three refusals were affirmed." That comment makes me feel like Bill Murray in Groundhog Day.
Here, here Anonymous..let you name be known...I heard they don't keep a Most Wanted list at the TTAB. If they did, I'd be Jesse james
Gene Bolmarcich, I have enough bad luck with the examiner lottery as it is; I don't need to give them any excuses. :D
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