Friday, January 09, 2009

Appeal of "BANANA CHAIR" 2(e)(1) Refusal Bears Fruit at TTAB

In a rare unillustrated opinion authored by Judge Bucher, the Board reversed a Section 2(e)(1) refusal to register the mark BANANA CHAIR, finding it not merely descriptive of "furniture, chair." The Board concluded that "[a]lthough the chair has a curved shape that may suggest the shape of a banana, the chair does not in fact look like a banana, and the term Banana Chair does not imediately and directly describe the shape." In re Future First LLC, Serial No. 78769110 (December 22, 2008) [not precedential].

The Examining Attorney contended that "banana chair" is the "common commercial name for a curved, legless rocking chair that is not associated with any one particular source." The PTO's evidence, however, was not convincing. It was unclear whether some of the website evidence was actually referring to Applicant's chair. And use of the term "banana chair" by "an individual posting a comment on a blog or other online forum ... without proper capitalization is not evidence that he or she believes the term is a common commercial name, nor is it evidence that readers of the posting regard it as such."

Given the ability of Internet search engines to retrieve many uses of almost any term, we cannot find on the basis of these isolated uses of "banana chair" as a common commercial name by individuals on blogs or public access sites such as Craig's List that this term is clearly the name of these types of chairs.

Nor does Applicant's chair look like a banana (as may readily be seen by the illustrations provided here by the TTABlogger).

Interestingly, the Board pointed out that its decision stemmed solely from the record evidence before it. "We make no comment on what the result might be on a different record, such as what might be adduced in an inter partes proceeding." [TTABlog query: is the BANANA CHAIR application ripe for a bunch of oppositions?]

And so the Board reversed the refusal.

Text Copyright John L. Welch 2009.


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