Tuesday, November 13, 2018

TTAB Test: Is ATHLETE INTELLIGENCE Merely Descriptive of Wearable Monitoring Devices?

The USPTO refused registration of the mark ATHLETE INTELLIGENCE, in standard character form, for wearable monitoring devices and systems. Applicant argued that the mark is merely suggestive of the goods because "multistep reasoning" would be need to extract any information from the mark, and further argued that the mark is a double entendre. How do you think this came out? In re i1 Sensortech, Inc., Serial No. 87249539 (November 9, 2018) [not precedential] (Opinion by Judge Angela Lykos).

Examining Attorney Andrew Leaser submitted dictionary definitions of "athlete" and "intelligence," one of the definitions of "intelligence" being "information." Competitors use "intelligence" to describe biometric data or information collection products for athletes.

Within the context of Applicant’s Class 9 and Class 10 goods, purchasers will immediately recognize that the word ATHLETE in Applicant’s mark designates the person wearing Applicant’s “monitoring device and system … comprised of electronic sensors”, and that INTELLIGENCE refers to the gathering of information measuring an individual athlete’s biometrics, positioning and speed, physiology as well as the magnitude and effects of any physical impacts.

The Board concluded that applicant's mark immediately conveys a feature and purpose of the goods: they are designed to collect intelligence from athletes, such as information and data, regarding the performance, health and medical safety of athletes." Applicant's website supports this finding.

Applicant offered various other meanings of its mark, but the Board observed that the marks must be considered in the context of the goods. "[T]he question of whether a proposed mark is merely descriptive is not determined by asking whether one can guess, from the mark itself, what the goods are, but rather by asking, when the mark is seen on or in connection with the goods, whether it immediately conveys information about their nature." Here, no imagination or thought is required to discern the nature of applicant's goods.

As to the double entendre argument, applicant relied on an article on degenerative brain disease suffered by athletes who have sustained multiple concussions. Since concussions are in the news, according to applicant, ATHLETE INTELLIGENCE could be perceived as a reference to or "play" on the idea of preserving the intelligence of an athlete engaged in contact sports.

The Board pointed out that the double connotations of the mark "must be associations that the public would make fairly readily." Both meanings must be readily apparent from the mark itself, without reference to other indicia. The record did not support "a finding that [the] alternative meaning of a 'play' on an athlete's intelligence is well-known or readily apparent such that this alternative meaning might be called to mind."

Read comments and post your comment here.

TTABlog comment:  Mere descriptiveness is not a guessing game. How did you do?

Text Copyright John L. Welch 2018.r


At 1:36 PM, Anonymous VANemeth said...

Suggestive, not descriptive IMO.


Post a Comment

<< Home