Monday, April 13, 2009

TTAB Finds "SPEEDOMETER" Generic for ... You'll Never Guess What

Aurel A. ("Alex") Astilean hit the proverbial wall in his attempt to obtain a Supplemental Registration for the term SPEEDOMETER for a "monitoring device worn on the person for tracking fitness of the walking and running exercises, and not concerned with the speed of the walking and running exercise." The Board barked, "not so fast, Mr. Astilean," and then proceeded to find the term to be generic for the goods. In re Astilean, Serial No. 76686920 (March 19, 2009) [not precedential]

With little explanation, as usual, the Board deemed the genus of the goods to be "wearable fitness-tracking devices." As to the meaning of "speedometer," the Examining Attorney provided two dictionary definitions and several website excerpts. The definitions were basically identical: "1. An instrument for indicating speed. 2a. An instrument for indicating distance traveled as well as the rate of speed. b. An odometer." The websites referred to speedometer/odometer/pedometer permutations and combinations.

Applicant's attorney, the indefatigable and always-appealing Myron Amer, argued that the term SPEEDOMETER is "perceived by the public only in relation to motor vehicles."

Being "worn on the person" brings into play legs in a running mode, not a rotating wheel, and not a MPH scale reading, and not other differences going far beyond the dictionary definitions of the Trademark Attorney.

The Board, perhaps exercised by that assertion, disagreed:

Not only is there no evidentiary support for applicant’s argument, but the examining attorney's evidence proves the contrary: These materials demonstrate that the term SPEEDOMETER is commonly applied to a "monitoring device worn on the person...,” and is readily understood by the public to designate such a device capable of variously displaying time, speed, distance traveled, heart rate, calories burned, and/or location. There is no basis to conclude that SPEEDOMETER only has meaning with reference to motor vehicles.

Despite Astiliean's "unclear" language excluding devices that measure speed, "the evidence of record makes clear that the term SPEEDOMETER refers to more than a device for simply measuring speed." According to the Board, "the online advertisements and articles demonstrate the use of SPEEDOMETER to refer to wearable fitness-tracking devices with a wide variety of functions other than speed."

... there are a number of devices in the marketplace referred to in whole or in part as a "speedometer," encompassing a range of functions and capabilities, and fitting easily within the genus to which applicant’s goods pertain.

And so the Board affirmed the refusal to register.

TTABlog comment: It seems to me that this supposed mark might have been refused on the ground of deceptiveness under Section 2(a). But that ground was not raised by the PTO. I have a difficult time agreeing that SPEEDOMETER is generic for a device that does not measure speed. Do you think the PTO's evidence met the applicable "clear evidence" standard?

TTABlog Side Bar: Astilean's website may be found here. Mr. Astilean lost another TTAB appeal last month (here), involving an unacceptable specimen of use for the mark FIT TEST. He is also the inventor of the "Treadmobile," which looks to me more like some kind of torture contraption than an exercise machine.

Astilean's Treadmobile

Text Copyright John L. Welch 2009.


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