Monday, December 07, 2009

"VINTAGE PINK" Not Merely Descriptive of Jewelry and Clothing, Says TTAB

In a determination "not free from doubt," the Board reversed a Section 2(e)(1) refusal to register VINTAGE PINK, finding it not merely descriptive of various jewelry and clothing items. Although Applicant admitted that some of her goods will be pink in color and will follow a “retro style,” she contended that neither the color pink nor the “retro style” is a significant attribute of her goods. In re Ashley O’Rourke, Serial No. 77093617 (December 2, 2009) [not precedential].

As to the descriptiveness of the word "pink," the board observed that "from a trademark perspective the use of a color word in a mark for clothing or jewelry is unlikely to be perceived as descriptive of a significant aspect of those goods." Moreover, Applicant and the Examining Attorney agree that “pink” is suggestive of femininity. And so, the Board concluded, the word “pink” in this mark "is more likely to suggest femininity, particularly in connection with non-pink clothing and jewelry."

As to the word "vintage," much of the evidence showed (not surprisingly) that it refers to something old or of classic style. Both Applicant and the Examining Attorney submitted third-party registrations that either do or do not include a disclaimer of the word “vintage.” in the mark. Not surprisingly, the Board could draw no conclusion from this evidence "other than that USPTO disclaimer practice is inconsistent and/or that whether or not a disclaimer is required is specific to the facts of each case."

Surprisingly, the Board concluded that this evidence "falls short of establishing that “vintage” is merely descriptive of a significant aspect of clothing or jewelry."

The Examining Attorney pointed to six Internet excerpts using the term "vintage pink" to identify a color, but the Board found that the examining attorney "has not met her burden of establishing that a significant number of the relevant public would readily view “vintage pink” as a specific color or ... for the same reasons discussed above in connection with the individual words comprising the mark, the relevant public would view this color as merely descriptive of a significant aspect of the identified goods."

Furthermore, the Board agreed with Applicant that "the juxtaposition of the two words, which may have slightly contradictory connotations, adds something more to the mark than just the meanings of the individual words."

Although readily admitting that its decision is not free from doubt, the Board pointed out that any doubt as to mere descriptiveness must be resolved in favor of Applicant.

TTABlog comment: I think "vintage" is merely descriptive here, and should be disclaimed.

Text Copyright John L. Welch 2009.


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