Monday, January 10, 2005


In "The Gambler," Kenny Rogers sings “You got to know when to hold ‘em, know when to fold ‘em,” but joint venturer Ken Rodgers ignored the singer's sage advice. Rodgers and Templeton played out their losing hand in In re Templeton and Rodgers, Serial No. 75544444 (December 21, 2004) [not citable]: the Board affirmed a Section 2(e)(1) refusal to register the mark ONE PRICE BUYING, finding it merely descriptive of publications and instructional materials in the field of marketing (ONE PRICE disclaimed).

Kenny Rogers, not Ken Rodgers

The Examining Attorney relied on dictionary definitions, Internet excerpts, and advertising materials from the applicant’s own car dealerships (Templeton Dodge-Oldsmobile and Ken Rodgers Ford) to demonstrate that ONE PRICE BUYING will be understood by relevant purchasers as signifying the use of the printed materials in marketing or selling goods at a single price.

Templeton Dodge-Oldsmobile, Tysons Corner, Virginia

Templeton and Rodgers (the joint venture) hopelessly argued that the mark is merely suggestive, that the PTO did not establish “any contextual link of the phrase to the class of goods,” and that the mark is “wholly arbitrary” with regard to class 16 goods. It also asserted that the Examining Attorney was incorrect in concluding that it was “reasonable to assume that the printed matter will contain information on one price buying.”

The Board, however, pointed to the Examining Attorney's request under Rule 2.61(b) for "information as to whether any of [the] identified goods will be associated with the marketing or selling of automobiles.” Applicant “did not expressly deny that its involved goods will be about ‘one price buying’” but instead provided a "nebulous" response:
“The mark ‘ONE PRICE BUYING’ is arbitrary and not descriptive of any particular articles in commerce. The term is not associated with any particular goods including automobiles.”
The Board, however, was not impressed with Applicant's sales pitch, instead finding it:
"reasonable to conclude that applicant’s printed materials and instructional materials in the field of marketing of goods will involve the marketing concept of ‘one price buying’ as the literal subject matter thereof -- whether used in training applicant’s employees in applicant’s apparent car dealership, or as marketing to consumers on the showroom floor.”
Templeton and Rodgers, like most applicants who appeal Section 2(e)(1) mere descriptiveness refusals, should have folded their hand sooner. See, e.g., Kenny Rogers, "The Gambler."


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