Thursday, November 18, 2021

TTAB Affirms Genericness Refusal of "LETTERS & NUMBERS" for . . . . Guess What?

The Board affirmed a refusal to register the proposed mark LETTERS & NUMBERS (in standard character form) on the Supplemental Register, finding it to be generic for printed and electronic publications "in the field of educational and entertainment materials targeted to children on the topic of alphanumeric characters and symbols." Dictionary evidence, applicant's specimen of use and its response to Examining Attorney Tracy Fletcher's request for information, and numerous third-party uses of the same or equivalent terms convinced the Board that the purported mark defines "the type of good (e.g., 'letters and numbers books'), or the integral, paramount or key aspect" of the goods. In re Brand Design Company, Inc. d/b/a DBA House Industries, Serial No. 87658330 (November 16, 2021) [not precedential] (Opinion by Judge Jonathan Hudis).

Applicant and the examining attorney agreed that the genus of goods at issue is "downloadable and printed children’s educational publications on the topic of alphanumeric characters and symbols," and that the relevant public comprises ordinary consumers of these goods. The question, then, was "whether the relevant public understands the proposed mark primarily "to refer to 'downloadable and printed children’s educational publications on the topic of alphanumeric characters and symbols.'" 

Applicant argued that "[a]t best, the evidence supplied by the Office is probative to show that the terms 'letters' and 'numbers,' alone or in combination, may be merely descriptive of relevant topics for, or used descriptively in titles of, educational publications and programs, making its registration appropriate for the Supplemental Register." The Board disagreed:

The Examining Attorney provided numerous examples showing that educational product companies and the relevant purchasing public refer to LETTERS & NUMBERS as a type of learning tool or a key aspect of learning tools – including flash cards, toys, games, instructional books, software apps, wall charts, worksheets, workbooks, tracing sheets, posters, interactive videos – for the understanding and formation of alphanumeric units of the alphabet and numerical integers. We find the third-party examples of LETTERS & NUMBERS, and equivalent terms, do not simply designate the purpose or use these items, but rather define the type of good (e.g., “letters and numbers books”), or the integral, paramount or key aspect of the featured items.

The Board concluded that the record evidence clearly shows the term LETTERS & NUMBERS to be generic for applicant’s identified goods.

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TTABlogger comment: Would the stylized form of the mark be registrable with a disclaimer of the words?

Text Copyright John L. Welch 2021.


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