Friday, October 12, 2018

TTAB Test: Is YAMSAFER (Arabic) Merely Descriptive of Travel Agency Services?

Almosafer Travel petitioned to cancel a registration for the mark YAMSAFER for travel agency services, on the ground of mere descriptiveness. The registration states that the English translation of YAMSAFER, an anglicized version of an Arabic word, is YOU THE TRAVELER. Does the doctrine of foreign equivalents apply to Arabic? How do you think this came out? Almosafer Travel and Tourism Company v. Yamsafer Inc. dba Yamsafer, Cancellation No. 92063145 (October 5, 2018) [not precedential] (Opinion by Judge Thomas W. Wellington).

Under the doctrine of foreign equivalents, foreign words from common, modern languages are translated into English to determine, inter alia, descriptiveness. The doctrine applies when ordinary American consumers, including those proficient in the foreign language, would stop and translate the word into English.

Data from the U.S Census Bureau indicated that Arabic is one of the top ten commonly spoken foreign languages in the United States as of 2017. More than 924,000 people speak Arabic at home, of whom more than 500,000 also speak English "very well" or better. Therefore the doctrine of foreign equivalents is applicable.

The Board then turned to the question of the meaning of YAMSAFER. Neither party introduced a translation of the Arabic term from an authoritative source. Respondent admitted in its discovery responses that YAMSAFER means "you the traveler" and two other admissions indicated that YAMSAVER is "a transliteration of 'the same or nearly identical Arabic word' that means 'traveler.'"

The word "traveler" is merely descriptive of the intended consumer of respondent's travel services. The Board saw little meaningful difference whether YAMSAFER means "traveler" or "you the traveler," since "the same essential information with descriptive significance will be conveyed to the relevant consumers, namely that the involved services are for 'travelers' or for 'you the traveler.'"

The Board concluded that petitioner had overcome the presumption that the registration is valid, and had proven by a preponderance of the evidence that "consumers of Respondent's travel agency services who are knowledgeable of Arabic would immediately understand YAMSAFER to convey information about a feature of those services, namely, that travelers are the intended recipients of the services." Therefore the mark is merely descriptive of the services, and the Board granted the petition for cancellation.

Read comments and post your comment here.

TTABlog comment: Is YAMSAFER generic for travel agency services? Petitioner argued that it identifies a "key aspect" of the services, but the Board declined to reach that issue. Note that the Board refused to take judicial notice of printouts from the "Google Translate" website.

If a person knowledgeable were knowledgeable in Arabic (or any foreign language), wouldn't the meaning of the foreign term be recognized and understood by that person even without translating it into English? 

Text Copyright John L. Welch 2018.


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