Friday, April 04, 2008

"REPTILE SAUSAGE" Merely Descriptive of Food for Reptiles, Says TTAB

I swear I never sausage a decision. The Board affirmed a Section 2(e)(1) refusal to register the mark REPTILE SAUSAGE, finding it merely descriptive of "food for animals, namely, for meat eating reptiles." In re Natural Balance Pet Foods, Inc., Serial Nos. 76612180 and 76612193 (March 17, 2008) [not precedential].

Examining Attorney Robert Clark relied on webpages showing use of the term "sausage" in connection with reptile food, a webpage offering for sale "snake sausage," a page describing "Snake Steak Sausage," and a dictionary definition of sausage. Applicant Natural Balance provided a definition of "reptile."

The Examining Attorney asserted that the mark immediately conveys relevant information about the goods: i.e., they are "sausages" for "reptiles." Applicant responded that the word "sausage" is "fanciful" in relation to the goods.

"By way of example, sausages, in general are not associated with being served to animals. Serving a distinctly human food to an animal is extraordinary. Additionally, the adjective before the word sausage usually denotes the ingredient, maker, or style of the sausage and not the being who consumes the sausage."

Applicant pointed out that no one refers to sausage on a menu or in a store as "human sausage." Its goods "do not have reptiles as an ingredient .., is [sic] not made by reptiles, and is not in a 'reptile-style.'" Ergo, the mark is merely fanciful, urged the Applicant.

The Board found a major problem with Applicant's argument: lack of support in the record. For example, there was no evidence that "human" food (or human-style food) is never given to animals. Moreover, the PTO's evidence shows that one manufacturer makes "sausages" for snakes.

The Board reminded Applicant that descriptiveness of a mark is not determined in the abstract: "We therefore start off knowing that Applicant's goods are food for carnivorous reptiles, and not food for humans." Some items in the animal food industry "are commonly called by a phrase consisting of the name or category of the animal for which the food is intended, followed by a word describing the food itself." E.g., dog biscuits.

The Board noted that the record was unclear as to "whether it is common practice in the relevant industry to call animal food (or reptile food) a 'sausage.'" But under the Board's precedents, even if Applicant were the first and only user of "sausage" in connection with food for reptiles, the term would still be merely descriptive.

Is short, the Board concluded that REPTILE SAUSAGE is merely descriptive of Applicant's goods, and it therefore affirmed the refusal.

TTABlog comment: There's something hard to swallow about this decision. I think the mark does have some incongruity and, like so-called double entendre marks, produces a bit of hesitation before one grasps the meaning of the mark. REPTILE SAUSAGE is such an odd and unusual combination of words that it deserves registration on that basis alone. [I guess I'm still bitter about the TTABLOG case].

Text Copyright John L. Welch 2008.


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