TTABlog Test: Is MOBILIZER Merely Descriptive of Massage Apparatus?

The USPTO refused to register the mark MOBILIZER for "massage apparatus and instruments," deeming the mark merely descriptive under Section 2(e)(1). The PTO's evidence consisted a dictionary definition and examples of use of the term “mobilizer” in various contexts. Applicant, of course, argued that the mark is merely suggestive of a function, feature or characteristic of its goods. How do you think this came out? In re Simple Mobility Tools LLC, Serial No. 87717065 [not precedential] (Opinion by Judge Peter W. Cataldo).

The Examining Attorney maintained that MOBILIZER "describes a feature, characteristic, purpose and use of applicant’s massage apparatus and instruments in that it describes their capacity to therapeutically mobilize joints." Pointing to a dictionary definition of the word, he asserted that "by its plain meaning the word MOBILIZER is descriptive of applicant’s massage apparatus and instruments in that they are used to make mobile and/or restore the power of motion to a joint." The Examining Attorney provided screenshots from various websites utilizing the term “mobilizer” to describe or identify Applicant’s goods as well as other exercise and mobility enhancing devices.

The Board was not impressed. The excerpts from applicant's website showed use of the term MOBILIZER as a mark and such terms as “mobility” and “mobilizing” to describe the functions and uses of Applicant’s goods. Third-party websites referred to certain devices as "mobilizers" (e.g., a "spinal mobilizer" and a "thoracic spine mobilizer") but the devices were not massage apparatus or instruments. Only four, at best, appeared to relate to massage apparatus or instruments.

Moreover, the dictionary definition of mobilizer, as the noun form of "mobilize," did not reveal a clear meaning relevant to applicant's goods.

Simply put, the majority of the Examining Attorney’s evidence shows that the term “mobilize” and derivations thereof are used to discuss various therapeutic devices and their uses. However, very little of the evidence demonstrates use of MOBILIZER to describe such devices

Finally, the Board noted that any doubt as to the descriptiveness of the mark should be resolved in favor of the applicant.

And so the Board reversed the refusal to register.

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TTABlog comment: Seems pretty descriptive to me, in the context of the goods. And even if applicant were the first and only user of the term, that still doesn't mean it isn't merely descriptive of the goods.

Text Copyright John L. Welch 2020.