Friday, May 18, 2007

Addition of "THE" to "LID" Does Not Avoid Mere Descriptiveness for Cargo Trailer Covers, Says TTAB

The Board re-affirmed that the addition of the definite article "the" to a descriptive word does not convert the latter into a registrable trademark. [What about the rock group "The The," you might ask? Well, the second "the" is not descriptive, so the question is not on point - ed.] Anyway, the Board affirmed a Section 2(e)(1) refusal to register the mark THE LID, finding it merely descriptive of "mechanically-operated unfitted flexible covers and tarping systems, namely, flip tarp systems, primarily comprised of flexible covers, tarpaulins and drive mechanisms for cargo and refuse trailers and semi-trailers." In re Aero Industries, Inc., Serial No. 78374039 (May 9, 2007) [not precedential].

Examining Attorney Allison P. Schrody contended that THE LID "merely describes the primary use or function of the goods, i.e., that they are hinged lids for truck trailers." She relied on a dictionary definition of "lid," website evidence of use of "lid" in connection with truck covers, and Applicant's own specimen of use, which features a photo of the product and the phrase "Put a lid on it!"

Applicant Aero argued that THE LID is not descriptive because "lid" is not typically used in the industry [doesn't matter, still descriptive - ed.]; that the word is incongruous for its goods [what the ....? - ed.]; and that the article "the" adds a unique character to the mark [strike three - ed.].

The Board agreed with the Examining Attorney that THE LID directly conveys to potential consumers the nature of the product. It noted that Aero itself describes its product as a "lid," and that the third-party materials relating to pickup trucks demonstrate the "broad use of the term 'lid' and a common understanding of that word when it is used to describe various covers." And, of course, the fact that Applicant "may be the first and possibly the only user of this designation does not alter the significance of THE LID and bestow upon applicant any proprietary rights."

Finally, as to the addition of the "the," the Board "has repeatedly rejected arguments that the use of the definite article 'the' as a prefix in a mark is sufficient to convert a descriptive term into a suggestive term."

"The reasoning behind these cases provides that the registration of THE LID would deprive others from referring to their products by the designation "the lid" to indicate that their covers are trailer lids."

The Board therefore affirmed the Section 2(e)(1) refusal.

Text Copyright John L. Welch 2007.


Post a Comment

<< Home