Monday, July 14, 2008

TTAB Reverses Mere Descriptiveness Refusal of "SAFETY JOGGER" for Work Shoes

The Board reversed a Section 2(e)(1) refusal to register the mark SAFETY JOGGER, finding it not merely descriptive of "clothing, namely, work shoes and boots, and headwear." In re Cortina N.V., Serial No. 79019306 (July 1, 2008) [not precedential].

The PTO relied on dictionary definitions of the word "safety" and on Internet advertisements referring to various athletic shoes as "joggers." The Examining Attorney maintained that the "logical and apparent meaning" of SAFETY JOGGERS is "“that applicant’s goods involve a sneaker shoe that creates a freedom from injury." [TTABlog comment: Where does it say "sneaker" in the identification of goods?]

Applicant’s website describes its "Safety Jogger"” shoes as "high performance safety shoes," with features such as a "steel toe cap," "antiperforation steel sole," "extreme comfort anatomic insole," and “breathable leather uppers." [TTABlog comment: So what? What does Applicant's website have to do with it? Suppose it described SAFETY JOGGERS as a ham sandwich? Isn't the identification of goods clear enough?]

The Board noted that the PTO's evidence regarding third-party use of the term "jogger" relates to athletic shoes, but that Applicant is not seeking to register its mark for athletic shoes. With regard to footwear, its goods are limited "work shoes and boots."

"There is no evidence in the record that the term 'SAFETY JOGGERS' would convey an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of 'work shoes and boots.' Rather, it requires imagination, thought, and perception to determine how SAFETY JOGGERS relates to 'work shoes and boots.'"

The Board found that Applicant’s mark suggests that it footwear "feature the comfort and agility of athletic shoes."

Finally noting that any doubt regarding the application of 2(e)(1) are to be resolved in favor of the applicant, the Board reversed the refusal.

Text Copyright John L. Welch 2008.


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