TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?
By my count, the Board has affirmed about 47 of the first 51 Section 2(e)(1) refusals that it reviewed this year. Here are three more. How do you think they came out? [Results in first comment].
In re Mens LLC, Serial Nos. 90122228 and 90122279 (October 30, 2023) [not precedential] (Opinion by Judge Mark A. Thurmon). [Mere descriptiveness refusals of MENS for "dietary and nutritional supplements; vitamins; medicated skin care preparations," and for "online retail store services featuring skin care preparations, dietary and nutritional supplements, vitamins." Applicant argued that MENS will be understood as a double-entendre, where the Latin meaning of “mens” (i.e., mind) provides the alternative meaning.]
In re Mannington Mills, Inc., Serial No. 97080822 (October 26, 2023) [not precedential] (Opinion by Judge Marc A. Bergsman) [Refusal to register CRAFTEDEDGE (in standard characters) for “laminate flooring; vinyl flooring; vinyl tiles; glue-laminated wood." Applicant contended that because the separate terms comprising the mark each have multiple meanings that could be applied to flooring, CRAFTEDEDGE is not merely descriptive.]
In re Nasogastric Feeding Solutions Ltd., Serial Nos. 90529600 and 90529653 (October 20, 2023) [not precedential] (Opinion by Judge Marc A. Bergsman) [Mere descriptiveness refusal of the proposed mark ENTERAL ACCESS TECHNOLOGIES, and Section 6(a) requirement for disclaimer of that phrase in the word-and-design mark shown below, for various medical devices, including tubes for enteral feeding, valves for enteral feeding, vents for enteral feeding, and nasogastric feeding tubes. Applicant argued that the mark is distinctive because of its "multi-layered meanings, the lack of a set descriptive meaning for the wording as a whole, the uncertainty as to whether 'access' references 'enteral' or 'technologies,' the double entendres introduced by the acronym and by the myriad meanings of 'access,' the absence of any such thing as an 'enteral access technology,' the absence of any evidence or dictionary definitions for 'enteral access technology,' and the 'EAT' wordplay introduced by the beginning letter of each of these terms."]
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TTABlog comment: How did you do? See any WYHA?s
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 11/02/2023
2 comments
2 Comments:
All three were affirmed.
In re Mens LLC: I expect that this is merely descriptive. I seriously doubt that the double-entendre based on latin, a language that is no longer spoken by anyone other than priests and attorneys, will win the day.
In re Mannington Mills, Inc.: I am going to give Mannington Mills a NOT MERELY DESCRIPTIVE vote. I don't think edge is highly descriptive of flooring, and that the combined works should be allowed as suggestive rather than merely descriptive.
In re Nasogastric Feeding Solutions Ltd.: I am also persuaded by some of the arguments in this case. I don't think the EAT argument is good since EAT is not part of the mark. I think that making arguments like this hurts a case because the Judges are looking at arguments that they clearly must reject. I think there is enough beyond the merely descriptive to allow the trademark, although I think enteral and technologies should be disclaimed.
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