TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?
The TTAB recently ruled on the appeals from the three Section 2(e)(1) mere descriptiveness refusals summarized below. No hints this time. Let's see how you do with them. Answer will be found in the first comment.
In re Esther Yang, Serial Nos. 88708065 and 88708080 (November 1, 2021) [not precedential] (Opinion by Judge Jyll Taylor). [Mere descriptiveness refusals of HOT KARATE and HOT SELF DEFENSE for physical fitness instruction and training services. Applicant maintained that the marks are registrable because they create "double meanings," since "hot" can mean high in temperature or "hot" as in "currently popular or in demand."]
In re Oral Arts Laboratory, Inc., Serial No. 88092627 (November 3, 2021) [not precedential] (Opinion by Judge Cynthia C. Lynch). [Mere descriptiveness refusal of BIOLOGIC HYBRID (Stylized) for "dental implants; dental crowns; dental fixtures, namely, prefabricated parts for crowns, bridges and pontics." Applicant argued the mark is merely suggestive because "biologic" suggests something that is biological in nature, thus making the goods more appealing to consumers by implying that they are natural and thus compatible with the human body.]
In re Foil Boarding Company, Inc., Serial Nos. Serial No. 88622718 and 88622731 (November 4, 2021) [not precedential] (Opinion by Judge Christopher Larkin). [Mere descriptiveness refusal of FOIL, in standard character and stylized form, for "electric hydrofoil surfboards." Applicant asserted that "foil" is not "unconditionally defined as a hydrofoil," since there are more than 30 other definitions of the word "foil" and in any case, the term does not describe a significant characteristic of the goods.]
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TTABlog comment: How did you do? See any WYHAs here?
Text Copyright John L. Welch 2021.
posted by John L. Welch @ 11/09/2021
5 comments
5 Comments:
All three refusals were affirmed.
Given the questionable nature of some of the generic refusals over the last several years, I am rather surprised to see that FOIL was not rejected as being generic. "Foil" is certainly more generic for hydrofoils than, for example, "Blueberry Muffin" is for beer.
The first decision was a karate chop in the mouth by claiming HOT was an industry term for training in a hot room and that is what they do. The second didn't give me a toothache once the definition for Biologic was made clear. The third decision was foiled by all the evidence submitted by examiner - client probably furious because there is a lot of advertising with this mark.
No generic refusal was issued bc applicant did not claim 2f or registration on the Supplemental Register.
For some reason, these other comments were for other cases.
For FASHIONSUPPORT, the decision in my humble opinion is plain wrong. Where does it state in the description of the goods that the medical socks etc are fashionable? It doesn't. Also, the advertising for FASHIONSUPPORT is being misconstrued on what is fashionable - the other clothes worn with the supports or the supports themselves.
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