Thursday, July 10, 2008

Divided TTAB Panel Reverses Mere Descriptiveness Refusal of "CRAZY GOOD" for Toaster Pastries

It took 32 pages and three opinions for the Board to reverse the PTO's mere descriptiveness refusal of CRAZY GOOD "for toaster pastries, [and] fruit preserve filled pastry product[s]." Judges Hohein and Bucher agreed that the term would be seen as overblown hyperbole and "mere puffery" and not as descriptive of the goods in any particular way. In dissent, Judge Grendel maintained that, even if the term were mere puffery, it is still laudatory and thus merely descriptive of the goods. In re Kellogg North America Co., Serial No. 78724957 (June 30, 2008) [not precedential].

The PTO relied on dictionary definitions of "crazy" and "good," on an Urban Dictionary entry for "crazy good," and on various Internet webpages showing use of the term "crazy good" in connection with food items and in other contexts. Kellogg argued that combining "crazy" with "good" is incongruous and is not "laudatory/descriptive in the way that commonly used terms like 'exquisite,' 'preferred,' 'world class' and 'America's Best' or "America's Favorite' are."

Judge Hohein went through the PTO's evidence piece by piece and discounted it, concluding that the evidence was "insufficient to demonstrate satisfactorily that the mark 'CRAZY GOOD' would immediately convey, without speculation or conjecture, only a merely descriptive, laudatory significance to consumers." Instead, consumers would most likely understand the term "as an exaggeration or extravagant statement of the goodness of applicant's [goods] rather than being taken literally as a term which merely describes goods which are extremely or otherwise exceedingly or superlatively good in some particular way or ways."

At a minimum, Judge Hohein found that a doubt existed as to the mere descriptiveness of CRAZY GOOD, and, of course, that doubt must be resolved in favor of Applicant.

In his concurring opinion, Judge Bucher, too, observed that Applicant gets the benefit of the doubt in a Section 2(e)(1) mere descriptiveness case. He applied four tests that "various tribunals" have employed -- the dictionary test, the imagination test, the competitors' need test, and the competitors' use test -- and found the mark not to be merely descriptive under any of the tests. He "would argue" that the phrase "seems to be mere puffery which would leave customers for the pastries to speculate as to what particular quality, characteristic or function the term refers."

Judge Grendel dissented, finding the PTO's evidence sufficient "to establish that CRAZY GOOD would be perceived by purchasers as nothing but a laudatory and thus merely descriptive phrase." He pointed out that, under Judge Hohein's standard, even the word GOOD by itself could not be considered laudatory because "it is not sufficiently literal or particular as to what it is about the product or service that is 'good.'"

In any event, the panel, by majority vote, reversed the refusal.

TTABlog comment: I agree with Judge Grendel that CRAZY GOOD is laudatory and, were it not such an off-beat term, should be deemed merely descriptive. But I find that the off-beatness of the term makes the consumer recognize that the mark is not just laudatory but is laudatory in a quirky way that makes it distinctive. It's like the term TTABlog, which the Board found to be merely descriptive. TTABlog may immediately convey information about this blog, but I still believe that the quirkiness of the term TTABlog makes it inherently distinctive. Because of TTABlog's telescoped spelling and awkward pronunciation, a reader knows that it's a trademark and not a mere descriptor.

As I unsuccessfully argued, some terms (like SUGAR & SPICE) immediately convey information about the goods, but are still deemed inherently distinctive because they have that requisite quirkiness (i.e, here the double entendre) that make the term more than a descriptor; it's an inherently distinctive trademark. So does CRAZY GOOD. So does TTABlog.

So I would reach the same result as the panel majority, but by a quirky, off-beat path.

Text Copyright John L. Welch 2008.


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