Tuesday, August 28, 2012

TTAB Finds "FRIDGE BINZ!" Generic for ... Guess What?

The Board affirmed a genericness refusal of FRIDGE BINZ! for "plastic storage containers for domestic use; plastic storage containers for use within refrigerators and freezers." Neither the novel spelling of "bins" nor the addition of an exclamation point served to lift the applied-for mark out of the genericness bin. In re InterDesign, Inc., Serial No. 77906060 (August 13, 2012) [not precedential].

The Board found the the genus of goods at issue to be adequately defined by Applicant’s identification of goods. The Board focused its analysis on the second portion of the identification, "plastic storage containers for use within refrigerators." The relevant public consists of ......[wait for it] ......"the ordinary consumer interested in purchasing plastic storage containers for use within refrigerators."

Examining Attorney Amy L. Kertgate put together "an impressive record of web blogs and online discussion forums, advertisements, newspaper articles and dictionary definitions," leading the Board to conclude that there was "clear evidence to support a finding that the relevant public, when it considers FRIDGE BINZ! in connection with plastic storage containers for use within refrigerators, would readily understand the term to identify refrigerator bins."

We have seen that both words “fridge” and “bins” are generic in connection with applicant’s goods. The evidence of record also shows that the term “fridge bins” maintains its genericness when these words are combined, inasmuch as this is simply another name for storage containers for use within refrigerators

The Board noted that some online retailers use FRIDGE BINZ! when referring to Applicant's goods, but others "clearly promoted applicant’s goods online using the generic term, 'fridge bin[s],' spelled correctly[.]"

Finally, the Board observed that 'a novel spelling that is the phonetic equivalent of a generic term is also generic if purchasers would perceive the misspelling as the equivalent of the generic term." [For example, ICE PAK generic for ice packs; MINERAL-LYX generic for mineral licks for feeding livestock; SUPERHOSE! merely descriptive of a hydraulic hose.]

And so the Board affirmed the refusal.

TTABlog comment:
Why isn't this a case where the mixed record (some generic usage, some not) creates enough doubt to avoid a genericness finding?

Text Copyright John L. Welch 2012.


At 8:41 AM, Blogger Frank said...

I have never understood why a distinctive mis-spelling would not be enough to have the public identify it as a trademark. In my mind FRIDGE BINZ brand refrigerator bins come from an exclusive source. The law is just wrong on this in my opinion and does not reflect commercial reality.

At 10:04 AM, Blogger Robert said...


If I call you and ask for some fridge bins, did I want the generic item or a specific brand? If I am a rival distributor and tell a retailer that I have these cool fridge bins, did I infringe the trademark?

I guess the point is that there are some common contexts where it would be impossible to tell if I am referring to a generic item or a trademark that is an intentional misspelling.

At 10:13 AM, Anonymous Anonymous said...

My understanding is that to find genericness, you need to have evidence that the consuming public actually understands the asserted mark to signify the KIND of product, not the SOURCE of the product. Without that affirmative evidence, how do you find it to be generic?

Mental gymnastics to construct how you think the public will react is not a sufficient factual basis for refusal.

At 12:08 PM, Anonymous Anonymous said...

The goods are fridge bins and the mark is fridge binz. I don't see how this would not be generic. Allowing basic misspellings to carry these marks would flood the register with mispelled generic marks and ultimately make consumers and retailers crazy having to deal with deciding what is what.


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