Thursday, June 21, 2007

"EQUITY RESIDENCE CLUB" Merely Descriptive of Real Estate Development Services, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register the mark EQUITY RESIDENCE CLUB, finding it merely descriptive of "real estate development services." Applicant DCP feebly argued that the mark does not "immediately convey knowledge of its services" and lamely urged that other terms are available to competitors to describe their services. In re Destination Club Partners, LLC, Serial No. 78524615 (June 15, 2007) [not precedential].

Examining Attorney John Hwang maintained that the term EQUITY RESIDENCE CLUB "merely describes a characteristic" or "intended purpose" of Applicant's services in that Applicant provides "residence club services" involving the "sharing of residences with other members of the club or program" under which certain "time share" or "equity club" real estate properties are developed or sold. He relied on dictionary definitions of the constituent words, as well as various Internet excerpts showing that EQUITY RESIDENCE CLUB is commonly used and understood to mean "a type of real estate time share arrangement."

Applicant contended that its mark was "at least suggestive, since an additional mental step is required to attach significance between the words comprising it and the service of real estate development." Moreover, competitors and the public "do not have reason to use the term EQUITY RESIDENCE CLUB to describe ... competing services" inasmuch as they "are free to use the terms 'fractional real estate interests,' 'shared ownership,' and/or 'time shares' to describe ... [such] services."

The Board did not share Applicant's view. It found nothing "incongruous, ambiguous, or even suggestive" about the mark, nor "anything that would require the exercise of imagination, cogitation or mental processing, or necessitate the gathering of further information," in order to grasp the merely descriptive significance of the term to customers.

The fact that other terms are available to competitors does not mean that EQUITY RESIDENCE CLUB is not descriptive. And it does not matter whether Applicant was the first and/or only user of the term.

The Board therefore affirmed the refusal to register.

Text Copyright John L. Welch 2007.


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