Thursday, January 13, 2022

In 2021, How Often Did the TTAB Affirm Section 2(e)(1) Mere Descriptiveness Refusals?

I have again reviewed the TTAB's FOIA page (now called the "TTAB Reading Room") in order to estimate the percentage of Section 2(e)(1) mere descriptiveness refusals that were affirmed by the Board during the last calendar year (2021). I counted 92 refusals, of which 84 were affirmed and 8 reversed. That's an affirmance rate of about 91.3%, a five-point rise from last year's 88%.

Only one of the mere descriptiveness reversals was precedential: namely, the TAVERNA COSTERA case [TTABlogged here], in which the Board declined to apply the doctrine of foreign equivalents because the ordinary American purchaser would not stop and translate a mark comprising words from different languages.

Here is a list of the 8 marks (with application serial numbers) involved in the Section 2(e)(1) mere descriptiveness reversals:

  • SUPER TECH (88040421)
  • MUSICAL TUSHIES (88286556)
  • JEWELED LULLABY (88380496)
  • BIG BARK (87518612)
  • AQUACHAR & Design (88539430)
  • FAST DRINK (87635652)
  • VOTESAPP (88453022)
  • TAVERNA COSTERA (88612441)

Most or all of these reversals found their way into a TTABlog post. You may find a particular post by putting the mark into the search engine box.

How does this compare with past years? Here's a bar chart (again prepared by the one-and-only Francesca ("Frankie") Householder), covering the last ten years:

Click on picture for larger, clearer image.

Read comments and post your comment here.

TTABlogger comment: Will the upward trend continue? Not likely.

Text Copyright John L. Welch 2022.


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