Thursday, December 22, 2005

TTAB Deems "BARBELL" Merely Descriptive of Barbell-Shaped Masonry Tools

Kraft Tool Co. lost its battle to overcome the PTO's disclaimer requirement regarding the word BARBELL in the mark MASONRY BARBELL JOINTER & design for "hand tools; namely, masonry jointers" [MASONRY and JOINTER disclaimed]. The Board found the word BARBELL to be merely descriptive of the shape of Kraft's tool. In re Kraft Tool Co., Serial No. 76578800 (December 5, 2005) [not citable].

Examining Attorney Nicholas K.D. Altree refused registration because Kraft would not disclaim BARBELL. The Board sided with the PTO, noting 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." The Board cited cases involving the descriptiveness of TOOBS for bathroom and kitchen fixtures in the shape of tubes; WING NUT for electrical connectors shaped like wing nuts; V-RING for antennas shaped like a "v" and a "ring;" CHAMBERED PIPE for an exhaust system comprising a series of small tuning chambers; MATCHBOX SERIES for toys sold in matchbox-sized boxes, and V-FILE for a v-shaped card filing device.

Photographs of Kraft's tool revealed that the product "is a bar with a round head ball-shaped extension on either end."

The Board rejected Kraft's arguments that BARBELL is not descriptive because Kraft's jointer "is not big enough to be an actual barbell" and because the tool is "asymmetrical, with one ball being slightly larger than the other." The Board observed that the tool is clearly shaped like a barbell, and the differenc in ball size is "too slight to overcome the tool's overall barbell-shaped appearance." Moreover, the design portion of Kraft's mark further encourages a purchaser to view the products as barbell-shaped.

Finally, Kraft dragged out the ever-popular double-entendre argument, claiming that BARBELL suggests "strength, power and agility as well as describing the shape of the goods." The Board didn't get it. "[T]his alleged second meaning is so attenuated that, standing alone, it would not be readily apparent to purchasers of these goods."

The Board therefore affirmed the disclaimer requirement, allowing Kraft thirty days within which to submit the necessary disclaimer.

TTABlog comment: I tried a masonry joint once, but I couldn't keep it lit.

Text Copyright John L. Welch 2005.


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