Tuesday, September 18, 2007

"JUMBOZ" Generic for Sunflower Seeds, Says TTAB

The Board affirmed a refusal to register the term JUMBOZ on the Supplemental Register, finding it to be generic for "processed sunflower seeds." In re Dakota Natural Foods, Inc., Serial No. 78326818 (August 28, 2007) [not precedential].

The Board first determined that "the genus of services [sic!] is commensurate with applicant's identification of goods in the application, i.e., 'processed sunflower seeds.'"

It next observed that "a mere misspelling of a generic term does not negate its genericness." [E.g., ICE PAK for ice packs; MINERAL-LYX for mineral licks]. JUMBOZ is the legal equivalent of "Jumbos," and Applicant Dakota Natural Foods did not disagree.

The Examining Attorney supplied dictionary definitions of "jumbo," while Applicant argued that sunflower seeds are "inherently small," and thus cannot be "jumbo." The Board, however, noted that "the comparison to be made is between relative sizes of sunflower seeds, not between sunflower seeds in general and inherently large items such as jumbo jets."

The Board found that Applicant's seeds fit the definitions of "jumbo," i.e., they are "unusually large" and each is "a very large specimen of its kind." Applicant's own packaging states: "When size matters! JUMBOZ BIG Salted Sunflower Seeds." That is "strong evidence" of genericness. Moreover, numerous website pages showed that "jumbo" is a particular type or size of sunflower seed.

Contrary to Applicant's argument, adjectives as well as nouns may be generic: e.g., SUDSY generic for ammonia; ATTIC for sprinklers; CHOCOLATE FUDGE for diet soda; LITE for beer.

In sum, the Board found JUMBOZ to be a term "used to refer to extra-large or jumbo sunflower seeds." It is therefore incapable of distinguishing Applicant's goods, and ineligible for the Supplemental Register.

Text Copyright John L. Welch 2007.


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