TTABlog Test: Is MENSTRUATION CRUSTACEON Merely Descriptive of Microwavable Heating Pads?

The USPTO refused to register the proposed mark MENSTRUATION CRUSTACEON for "Microwavable heating pads not for medical purposes," finding the mark to be primarily merely descriptive under Section 2(e)(1). Applicant argued, among other things, that "the rhyming, incongruous qualities of MENSTRUATION CRUSTACEAN" and its "humorous, rhyming cadence" . . . "captures the consumer’s attention and identifies Applicant as the source of the goods." How do you think this came out? In re What Do You Meme, LLC, Serial No. 97406016 (February 8, 2024) [not precedential] (Opinion by Judge Cheryl S. Goodman).

Examining Attorney Alex Seong Keam relied on dictionary definitions of the constituent words, on Applicant's specimen of use (shown above), product listings for applicant's heating pad (describing the product as "a huggable, heat-up” 14-inch “plush lobster” and “cuddly crustacean” in the shape of a lobster), third-party articles about applicant's goods, and various advertisements for creature-shaped pads for use with period or menstrual pain, including crustaceans (crab and lobster). [example below].

The Board observed that "[a] term or word which merely describes the form or shape of a product falls under the proscription of Section 2(e)(1) of the Trademark Act. [See, e.g., J. Kohnstam, Ltd. v. Louis Marx & Co., 280 F.2d 437, 126 USPQ 362, 364 (CCPA 1960) (MATCHBOX SERIES merely descriptive of toys sold in boxes having the size and appearance of matchboxes)]. Here, CRUSTACEAN "merely describes the shape or form of Applicant’s heating pad product, which in this case is a lobster, a type of crustacean."

The Board found that MENSTRUATION describes the use or purpose of Applicant’s heating pads, i.e., to relieve menstruation pain. Moreover, when the two words are combined, MENSTRUATION CRUSTACEAN "does not lose its descriptive significance."

Applicant argued that MENSTRUATION CRUSTACEAN is not descriptive because it is a unitary mark that has a “rhyming cadence” and is incongruous. According to Applicant, "rhyming 'menstruation' with 'crustacean' while euphonous, is absurd and disarming, and so the perceptual incongruity resulting therefrom transforms an otherwise descriptive mark into a mark capable of trademark significance and capable of identifying the source of the goods."

The Board noted that to be considered a unitary mark, the elements of the mark must be so merged "that the mark has a distinct meaning of its own independent of the meaning of its constituent elements." "In rare cases, alliterative marks, or those with a rhyming or other sound pattern, can encourage persons encountering the mark to perceive the mark as a whole."

As to incongruity, “it must be shown that in combination the descriptiveness of the individual words has been diminished, that the combination creates a term so incongruous or unusual as to possess no definitive meaning or significance other than that of an identifying mark for the goods.”

The Board rejected applicant's "unitary mark" contention:

We disagree with Applicant that MENSTRUATION CRUSTACEAN is a unitary mark. While the rhyming pattern employed in Applicant’s mark may assist consumers’ perception of the mark as a combination of both terms rather than just focusing on one, we find no separate distinct overall commercial impression as a result. The two words rhyme, but the rhyming quality imparts no new or different meaning to the terms.

And it also rejected the "incongruity" argument:

We also find no incongruity. Combining the merely descriptive terms “menstruation” and “crustacean” into the composite MENSTRUATION CRUSTACEAN does not negate their mere descriptiveness, nor does it create a composite that is incongruous. MENSTRUATION CRUSTACEAN merely describes the shape or form of the heating pad, which is a crustacean (lobster), and it describes the function or purpose of the heating pads which is to relieve pain from cramps during menstruation. The combination does not result in an incongruous or unusual designation with no definitive meaning or significance other than as a mark.

In sum, "consumers will still immediately understand upon seeing the mark in connection with the goods that they are used to describe a heating pad in the shape of a plush lobster that is used to relieve cramps during menstruation."

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: I wonder what the lamb is called?

Text Copyright John L. Welch 2024.