TTABlog Test: Is BLOCKCHAIN DRILLING Merely Descriptive of Offshore Drilling Services?

The USPTO issued a Section 2(e)(1) refusal to register the mark BLOCKCHAIN DRILLING, finding it to be merely descriptive of "Drilling of offshore oil or gas wells utilizing blockchain technology and solutions to enhance efficiencies and reduce costs" and "Implementation of blockchain technology and solutions, namely, providing a nondownloadable cloud-based computer software platform to enhance efficiencies and reduce costs in drilling offshore oil and gas wells" [DRILLING disclaimed]. Applicant argued that the mark is incongruous and therefore "at worst suggestive" of the services, since the "blockchain is traditionally used in ledgers, accountant's records, and in other data storage systems," not in the rough-and-tumble field of oil and gas well drilling. How do you think this came out? In re Diamond Offshore Drilling, Inc., Serial No. 87766205 (April 27, 2020) [not precedential] (Opinion by Judge Lorelei Ritchie).

Applicant submitted several dictionary definitions of "blockchain," all of which referred to the term in the context of "bitcoin" or "cryptocurrency" The Board, however, took judicial notice of other definitions of the term that are not so limited: e.g., "a digital database containing information (such as
records of financial transactions) that can be simultaneously used and shared within a large, decentralized, publicly accessible network; also: the technology used to create such a database."

Examining Attorney David A. Hoffman submitted a Wikipedia entry for “blockchain” that "reiterates that blockchain technology, while often used in reference to cryptocurrency exchanges, may be implemented in other systems, including supply chain monitoring."

Blockchain: A blockchain, originally block chain, is a growing list of records, called blocks, which are linked using cryptography. Each block contains a cryptographic hash of the previous block, a timestamp, and transaction data (generally representing a merkle tree root hash). By design, a blockchain is resistant to modification of the data. It is “an open, distributed ledger that can record transactions between two parties efficiently and in a verifiable and permanent way.”

The Examining Attorney also submitted an excerpt evidence from applicant’s website, touting its “Blockchain Drilling platform” as providing “transparency, provenance and immutability across the entire supply chain.”

Based on this evidence, the Board failed to see the incongruity that applicant claimed. Instead it found that the mark "when viewed in relation to Applicant’s identified services, immediately conveys that Applicant contemplates implementing 'blockchain' technology as a feature of its 'drilling' activities." Of course, the fact that applicant may be the first and only user does not immunize the mark from being merely descriptive of the services.

And so the Board affirmed the refusal.

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TTABlogger comment: So on its face the mark may seem incongruous, but when you drill down to the actual services, maybe not.

Text Copyright John L. Welch 2020.