Tuesday, September 27, 2011

TTAB Affirms Genericness Refusal of FIREPOT for ... Guess What?

Applicant Bird Brain had the idea that it could register the term FIREPOT for "decorative tabletop torches," but Examining Attorney Cheryl Clayton issued a refusal to register on the ground of genericness. Bird Brain's appeal went up in smoke when the Board affirmed the refusal, finding via its In re Gould analysis that "the individual components of applicant’s mark are generic for the goods, specifically pots that hold fire, and their combination lends 'no additional meaning to the term.'" In re Bird Brain, Inc., Serial No. 77817178 (September 7, 2011) [not precedential].

The Board, as usual, found the genus of the goods to be "adequately defined by applicant's identification of goods." The Examining Attorney relied on website evidence and on dictionary definitions of "firepot," including one from Wikipedia, in contending that applicant's decorative torches "are simply one style of fire pot of the entire genus of fire pots."

Applicant Bird Brain argued that the vast majority of website pages refer to its products, that its goods are not used for cooking (unlike those of the dictionary definitions), and that the Wikipedia entries are "unverified, unprofessional," and "highly susceptible to challenge from professional sources."

The Board, however, observed that Wikipedia evidence is admissible as long as the non-offering party has an opportunity to rebut it; here, Bird Brain offered no rebutting evidence. [Wikipedia evidence must also be corroborated: see TTABlog posting here].

The Board took judicial notice of dictionary definitions of "fire" and "pot," concluding that FIREPOT is generic for "a pot that holds fire." The website evidence showed use of the term FIREPOT for a "broader array of pot-like vessels that contain fire for decorative and functional purposes."

The fact that applicant’s firepot is a subset of goods that are referred to as firepots does not transform it into a term capable of source-identifying significance for applicant’s firepots.

The record established that "the individual components of applicants mark [It's not a mark - ed.] are generic for the goods, specifically pots that hold fire, and their combination lends no additional meaning to the term." The definitions and website excerpts supported that conclusion.

As to the evidence showing use of FIREPOT in connectionvwith BIRD BRAIN's goods, the Board pointed out that "no amount of evidence can transform a generic term into a registrable trademark." [That kind of begs the question, doesn't it? - ed.]

TTABlog comment: After you watch the Bird Brain video below, do you have any doubt about the term's genericness?

Text Copyright John L. Welch 2011.


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

Isn't there a recall for these BirdBrain products? Did they have a duty to advise the TTAB that their use had stopped? Notwithstanding, why didn't their attorney help them select a better name or at least a stylized version that they might try to protect instead of a generic word mark?

At 12:05 PM, Anonymous Anonymous said...

Watched the video - OMG! Obviously, BirdBrain's name says it all - no Lanham act false advertising case here.


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