Thursday, October 16, 2008

"FASHION TOOLS" Merely Descriptive of Fashion Information Website, Says TTAB, Unconvincingly

In an unconvincing, but mercifully brief, decision, the Board affirmed a Section 2(e)(1) refusal to register the mark FASHION TOOLS, finding it merely descriptive of "providing a website featuring information and content in the fields of personal relationships, dating and fashion." In re Integrity News Media, Inc., Serial No. 77292701 (October 6, 2008) [not precedential].

leather punch

The Examining Attorney relied on dictionary definitions of "tool," "information," and "resource" in arguing that in contending that information and content are "tools." Several third-party registrations for "a variety of services," included disclaimers of "tools" or resided on the Supplemental Register. And a few Lexis/Nexis excerpts showed use of "tool" in connection with news or information.

Applicant, appearing pro se, argued that the PTO was applying an overly-broad definition of "tool," and that simply because information and content may be "used" does not mean that "tool" is a proper descriptor.

According to the Board, however, the word "tool" is "regularly used to refer to the use of various types of information. Because applicant's website contains fashion information, the website itself is a tool for those persons seeking fashion information. As such, FASHION TOOL is merely descriptive in connection therewith."

Finding that no "exercise of imagination, cogitation, mental processing or gathering of further information" is required for customers to "readily perceive the merely descriptive nature of the term FASHION TOOLS as it pertains to applicant's services," the Board affirmed the refusal.

TTABlog comment: One has to wonder whether an attorney could have presented a better case on behalf of Applicant. For example, this Applicant attempted to submit third-party registrations for marks including the term "tool," but it/he completely screwed it up.

I can see the word "tool" being descriptive when used in connection with a website providing financial tools, like calculators, interest charts, tax rate tables, and the like: i.e., mathematical tools. But I don't see "tools" as being descriptive of fashion information. It seems to me that the case was nowhere near as clear-cut as the Board made out.

P.S.: See definition of "tools" at the Urban Dictionary (here). [HT: Pam C.]

Text Copyright John L. Welch 2008.


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