Thursday, April 07, 2011

WYHA? TTAB Affirms Section 2(e)(1) Mere Desciptiveness Refusal of STRETCH FIT for Incontinence Briefs

In refusing registration of the mark STRETCH FIT as merely descriptive of "incontinence briefs," Examining Attorney Michael Souders relied on dictionary definitions of "stretch" and "fit" and website pages showing use of the phrase in connection with those goods as well as with underwear and various clothing items. Would you have appealed? In re First Quality Products, Inc., Serial No. 77672102 (March 14, 2011) [not precedential].

The Board found that these Internet uses, as well as the definitions, "establish that the purchasing public of applicant's goods would immediately recognize, without imagination or thought, that 'stretch fit' refers to a fit obtained through the stretching of applicant's incontinence briefs."

Applicant feebly pointed to its application for CORRECT-FIT for incontinence products, which mark was published for opposition without any disclaimer. The Board, of course, pointed out that such evidence doesn't hold water, since CORRECT-FIT is a different mark.

Next, Applicant lamely asserted that "much" of the Examining Attorney's evidence is irrelevant because it does not concern incontinence briefs. The Board again disagreed, observing that the evidence regarding incontinence briefs was itself sufficient, and that the other evidence has probative value as well.

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2011.


At 4:17 PM, Anonymous Anonymous said...

The applicant, like the product, was full of it.


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