Friday, July 17, 2009

WYHA? TTAB Finds "Dirt Drifters" Merely Descriptive of -- Guess What?

Applicant Shawn Esposito hit a TTABrick wall in his attempt to register the mark DIRT DRIFTERS for "television show production services." The Board found the mark merely descriptive under Section 2(e)(1). Esposito took small consolation from the Board's reversal of a second refusal concerning his response to the PTO's request for information under Rule 2.61(b). In re Esposito, Serial No. 77248477 (June 30, 2009) [not precedential].

Applicant's specimen of use

Mere Descriptiveness: Examining Attorney Brian Pino contended that DIRT DRIFTERS "merely describes drifters that perform drifting techniques on dirt; the applicant’s services feature such performances." He relied on a Wikipedia definition of "drifting:"

Drifting refers to a driving technique and to a motor sport involving the use of the technique. A car is said to be drifting when the rear slip angle is greater than the front slip angle, and the front wheels are pointing in the opposition direction to the turn (e.g., the car is turning left, wheels are pointed right), and the driver is controlling these factors.

And he submitted a carload of evidence showing that (1) drifting is a motor sport; (2) drifters participate and compete in drifting competitions and exhibitions; and (3) dirt drifting is drifting on dirt roads.

Esposito conceded that “[d]irt drifting is a technique used in the sport,” but maintained that the sport is known as Rally-X or Rally-Cross, not dirt drifting.

The Board, however, concluded that the term "dirt drifters," means "people who compete and participate in dirt drifting activities." Since Esposito services are broad enough to include [and do include] television shows about dirt drifting, the mark is merely descriptive of the services.

Rule 2.61(b) Requirement: When the dust settled, Esposito had won a small battle, though he had lost the war. The Board reversed the refusal based upon the PTO's contention that Esposito had not fully responded to a request for information.

In response to the Examining Attorney’s inquiry as to the significance of the words "dirt,” “drifters,” and “dirt drifters,” Esposito provided the following information:

1. “Dirt drifting” is a technique used in Rally-X or Rally-Cross;
2. “Dirt drifting” is not the name of the sport; and,
3. Racers are called Rally-X drivers, not “dirt drifters” or “drifters.”

The Board found that Esposito had fully complied with the request for information and, therefore, the refusal to register the mark on this ground was not sustainable.

TTABlog comment: I have to say that "dirt drifting" just doesn't have any appeal to me as a spectator sport. How do you tell who wins?

Text Copyright John L. Welch 2009.


At 8:23 AM, Blogger John L. Welch said...

This comment has been removed by the author.

At 8:29 AM, Blogger John L. Welch said...

It now dawns on me that this is a bad caption for a post about a Section (e)(1) case. Mere descriptiveness is not a "guessing game." One does not try to guess what the term means in the abstract, but only in the context of the goods and services in question. JLW


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