Friday, October 22, 2010

TTAB Affirms Genericness Refusal of "JOC" For ... Guess What?

Applicant Joe Wiens failed to gain TTAB support in his appeal from a refusal to register, on the Supplemental Register, the term JOC for "protective athletic garments," namely, clothing with built-in cup pouches or protective cups. Examining Attorney Sharon A. Meier maintained that "joc" is the phonetic equivalent of the term "jock," which is generic for the goods. The Board agreed. In re Joel Wiens, Serial No. 78526520 (October 13, 2010) [not precedential].

The Examining Attorney relied on dictionary definitions of "jock," a third-party patent registration [What's that? - ed.], and many third-party web pages showing use of the term "jock" in connection with clothing of the type identified in the involved application.

Wiens conceded that JOC is merely descriptive, but argued that there are "two different definitions for the term 'Jock' in the same context [athlete and athletic supporter]." He contended that the "athlete" connotation is the primary meaning, "especially because applicant's goods are not limited to just jock straps, but rather include female undergarments." [E.g., see photo above - ed.]

In this connection, applicant states that women consumers do not necessarily understand the term “jock” to refer primarily to a jockstrap, and that they primarily associate the term “jock” with an athlete. Applicant points out that his usage of JOC is meant to convey the “athlete” meaning of the term, especially in view of his use of "athletic-looking models" in advertisements.

Wiens and the Examining Attorney agreed that the genus of goods at issue is men's and women's protective athletic garments. The relevant public, the Board found, comprises athletes, "or, more generally, men and women who participate in athletic and/or sporting contests."

The Board recognized that Wiens' goods "do not appear to encompass athletic supporters, per se, but rather goods, such as shorts and pants, that incorporate the qualities and functions of an athletic supporter." However, the evidence showed the term "jock" used with other types of athletic garments: numerous websites offered "jock shorts" and "jock pants." Moreover, the evidence included uses of "jock short" and "jock" in connection with women's athletic garments.

The Board therefore found that "joc" is the "phonetic equivalent and a misspelling of the term 'jock,' and is therefore generic" for shorts and pants that feature protective cups and/or cup pouches." Because Applicant's designation JOC "is used in connection with 'jock'-type athletic garments, this meaning will be the primary meaning, and one that clearly dominates over the meaning of 'jock' as 'an athlete.'"

Given the widespread generic use of “jock” in connection with athletic shorts and pants, the designation “joc,” the phonetic equivalent and misspelled version of “jock,” is incapable of distinguishing applicant’s goods from the same or similar goods of others.

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2010.


At 12:01 PM, Anonymous Anonymous said...

In the context of these goods, I'd say they *upheld* the decision.


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