Thursday, February 04, 2016

WYHA? CARBON ELIMINATOR Merely Descriptive of Fuel Additive, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register the mark CARBON ELIMINATOR, finding it to be merely descriptive of "non-chemical enzyme fuel additive" [CARBON disclaimed]. Applicant's own specimen of use stated that the product "removes tough carbon deposit." Would You Have Appealed? In re Star-Brite Distributing, Inc., Serial No. 86344788 (February 2, 2016) [not precedential].

Examining Attorney Vivian Micznik First relied on a dictionary definition of "eliminate" - "to remove or take out, get rid of." Applicant's product description proclaimed that the product "uses enzyme technology to remove carbon, gum and varnish deposits."

The Board declared that "it is settled that where marks describe the intended purpose of the goods in connection with which they are used, they are merely descriptive."

Applicant's double-entendre argument (consumers couuld believe it to be a product that eliminates carbon dioxide) was both strange and unavailing, since the supposed second meaning of the mark was also descriptive of the goods. Finally, Applicant pointed to allegedly similar third-party marks, but the Board pointed out once again, quoting In re Datapipe, Inc., that "each application must be examined on its own merits. Neither the Trademark Examining Attorney nor the Board is bound to approve for registration an Applicant’s mark based solely upon the registration of other assertedly similar marks for other goods or services having unique evidentiary records."

The Board had no doubt as to the descriptiveness of CARBON ELIMINATOR, and so it affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Any thoughts?

Text Copyright John L. Welch 2016.


At 7:59 AM, Blogger Brad Salai said...

Appealed? I would probably have suggested not even filing.


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