Tuesday, April 12, 2005

TTAB Says "HIGH-HEELED HANDBAGS" Merely Descriptive Of Handbags With High Heels

New York artist Shoshanna Smith was tripped up in her attempt to register the mark HIGH-HEELED HANDBAGS for, inter alia, handbags made from high-heeled shoes. The Board affirmed a Section 2(e)(1) mere descriptiveness refusal in In re High-Heeled Creations, LLC, Serial No. 76306141 (March 31, 2005) [not citable].

The Examining Attorney relied on dictionary definitions of the constituent words, on NEXIS excerpts describing applicant's handbags as "real shoes made into purses," on several newspaper articles, and on Applicant's own specimens of use (see photo below).

Teetering on the brink of defeat, Applicant offered arguments that some might call "nonsense on stilts:" that the mark is not descriptive, but rather is an "evocative mark, calling to mind a sexy image;" that "the idea of this product is so unique that people generally cannot picture the handbags even after the concept of shoes as handbags is orally described;" that "the mark would be a poor descriptor even if that were its function;" and that the concept of turning shoes into handbags "has been described in the industry as award winning and utterly original and part of fashion history." Finally, Applicant pointed out that not all of its handbags have high heels.

The Board was not knocked off its feet by Applicant's arguments. It observed that a term that merely describes the form or shape of a product, or a significant feature of a product, is merely descriptive. The fact that not all of the identified products have that form or feature is "irrelevant."
"We do not take issue with the contention that the shape of applicant's handbags is unusual and that the concept of a shoe functioning as a handbag is innovative or unique. The fact remains, however, that purchasers of this style of handbags would clearly understand the descriptive meaning of HIGH-HEELED HANDBAGS in relation to those goods. Anyone who produces handbags with the high heel of a shoe on it, as unusual as that may be, should be entitled to describe its handbags as having high heels or as "high-heeled."
This Board decision is not likely to cause TTABlog readers to kick up their heels, but then again, how many TTAB decisions do?

Text ©John L. Welch 2005. All Rights Reserved.


Post a Comment

<< Home