Friday, September 05, 2008

TTABlog Test Time: So You Think You Know Genericness?

At her Property, intangible blog, Pamela Chestek here invites readers to participate in a genericness survey (Teflon-style) regarding ice cream designations/terms/names/marks. Do you think you know genericness when you see it? Ok. Explain the difference between the In re Gould test and the American Fertility test. All set? Then take this quiz: which of the follow ten terms were found by the Board to be generic? Good luck. You'll need it.

  1. THE BEEF JERKY OUTLET for "retail services featuring meat products." In re American Food Co., Serial Number 76101362 (September 29, 2004).

  2. LENS for "retail store services featuring contact eyewear products rendered via a global computer network."In re, Inc., 83 USPQ2d 1444 (TTAB 2007).

  3. VIRUSSCAN for computer software for protecting and securing the integrity of data, computer software, and computers and computer networks. In re Network Associates Technology, Inc., Serial No. 76426050 (January 25, 2005).

  4. DENTISTRY FOR THE QUALITY CONSCIOUS for dental services. Fox v. Hornbrook , Opposition No. 91121292 (Aug. 25, 2004).

  5. MICRO COTTON for bath linen, towels, napkins, clothing items, and related goods. In re Sharadha Terry Prods. Ltd., Serial Nos. 78027603 and 78027605 (September 1, 2005).

  6. FRESH ORGANICS for fresh fruits and vegetables, unprocessed cereals, and the like, and for retail health food store services. In re Nutraceutical Corp., Serial No. 78975072 (March 13, 2006).

  7. DIGITAL INSTRUMENTS for "scientific and technological research for others and development of products for others, namely, atomic force microscopes and scanning tunneling microscopes, in the field of metrology." In re Veeco Instruments, Inc., Serial No. 76383240 (March 22, 2006).

  8. SING-A-LONG for "karaoke players." In re Mana-Tee Concepts USA, LLC, Serial No. 76518416 (August 24, 2005).

  9. INSTANT MESSENGER for electronic messaging services. In re America Online, Inc., 77 USPQ2d 1618 (TTAB 2006).

  10. TEACHER'S INSURANCE PLAN for "Insurance services, namely underwriting insurance in the fields of property, casualty and automobile insurance; Insurance claims administration and processing; insurance consultation and insurance brokerage services." In re Direct Response Corp., Serial No. 76121702 (March 8, 2005).

TTABlog Answers? Here's a hint. All the odd-numbered cases came out the same way, and all the even-numbered cases came out the opposite way.

For a discussion of In re Gould, American Fertility, and the Board's approach(es) to genericness, see pages 11-15 of this article (which I wrote a few years ago but still makes sense). Also see the comments included in the TTABlog postings for the cases above.

Text Copyright John L. Welch 2008.


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