TTABlog Test: Is "VOTESAPP" Merely Descriptive of a Social Networking App?

The USPTO refused to register the mark VOTESAPP for "online social networking services accessible by means of downloadable mobile applications," finding it to be merely descriptive of the services under Section 2(e)(1). Applicant Mehta stated that the app is "directed toward ‘getting out the vote,'" but he argued that his mark "has no recognized meaning in connection with social networking services and the relationship between the terms 'VOTES' and 'APP' is not immediately clear." How do you think this appeal came out? In re Niraj R. Mehta, Serial No. 88453022 (October 18, 2021) [not precedential] (Opinion by Judge Christopher Larkin).

There was no doubt that the term "app" describes applicant's services. The word "votes," however, was "quite a different matter." The Board took judicial notice that "'vote' is both a verb meaning 'to make an official choice for or against someone or something by casting a ballot, raising your hand, speaking your choice aloud, etc.,' and a noun meaning 'a usually formal expression of opinion or will in response to a prompted decision, especially: one given as an indication of approval or disapproval of a proposal, motion, or candidate for office.'"

The examining attorney argued that "votes" directly describes the subject matter of applicant’s services, just like PSYCHOLOGY PRESS for books in the field of psychology and WEATHER CHANNEL for television programming and weather information services, both of which were found to be merely descriptive. The Board disagreed.

That meaning of VOTES is not at all apparent on the face of the mark, and the Examining Attorney relies solely on Applicant’s statements during prosecution that his service "provides the ability to socialize a user’s self-disclosed vote status (voted, not voted, registered, etc.) amongst their contacts," and "creates a non-political interface that provides the vote status of contacts that utilize the service." Those statements, standing alone, are insufficient to establish that the word VOTES in Applicant’s proposed mark would be understood to have such a descriptive meaning by a consumer who knows that the involved services are "Online social networking services accessible by means of downloadable mobile applications."

In light of the sparse record, the Board was "constrained to agree" with Applicant.

There is nothing on the face of the mark that causes it to immediately convey that a feature of the identified social networking services is “the ability to socialize a user’s self-disclosed vote status (voted, not voted, registered, etc.) amongst their [sic] contacts,” id. at 9, and there is no record evidence to support a finding that the relevant purchasing public would so understand the word VOTES in the mark, or the mark as a whole.

And so, the Board reversed the refusal to register, resolving any doubt in applicant's favor.

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TTABlogger comment: There seem to be a number of voting apps available, called "voteapps."

Text Copyright John L. Welch 2021.