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. Let's see how you do with them. Answer will be found in the first comment.
In re ProBody Scandinavia, Serial No. 87771075 (April 1, 2022) [not precedential] (Opinion by Judge Angela Lykos). [Mere descriptiveness refusal of FASHIONSUPPORT for, inter alia, compression garments, and compression socks for medical or therapeutic use. Applicant contended that the proposed mark "is suggestive in relation to the identified goods because the juxtaposition of the two words requires the consumer to engage in multi-step reasoning since 'some degree of thought or imagination is required to understand that Applicant’s goods involve compression bandages or compression socks.'"]
In re Headspace Meditation Limited, Serial No. 79281613 (March 30, 2022) [not precedential] (Opinion by Judge Thomas Shaw). [Mere descriptiveness refusal of SLEEPCAST for "Audio recordings featuring fictional stories to be used for purposes of meditation, relaxation and sleep-induction." Applicant asserted that the proposed mark is not merely descriptive because “[t]he SLEEPCAST mark does not describe the recordings offered under the mark with any degree of particularity,” pointing out that the Examining Attorney’s sleep podcast evidence includes genres such as bedtime stories, meditation, sleep science, relaxing sounds, hypnosis, and Bible stories.]
In re Biogena GmbH & Co., Serial No. 79285012 (March 7, 2022) [not precedential] (Opinion by Marc A. Bergsman). [Mere descriptiveness refusal of 3-SALT ZINC for dietary supplements. Applicant argued that the purchasing public is unaware of the technical meaning of the term "salt," and will perceive "salt" as being "sodium chloride," "even though there is no sodium chloride in the zinc supplements. Therefore, the purchasing public will have to exercise a multiple step reasoning process to decipher the meaning of 3-SALT ZINC."]
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Text Copyright John L. Welch 2022.
posted by John L. Welch @ 4/07/2022
3 comments
3 Comments:
All three were affirmed.
I would:
affirm the 3-SALT ZINC refusal;
reverse the FASHIONSUPPORT refusal (no doubt both words individually are merely descriptive but the goods do not "support" fashion, which to me is what the mark connotes); and
affirm the descriptiveness refusal of SLEEPCAST but reverse the 2(d) refusal
I'm with Gene, I think SLEEPCAST is suggestive. I would actually be more likely to affirm FASHIONSUPPORT since support garments are a genre, that word is generic and FASHION is highly descriptive so to me FASHIONSUPPORT is much less suggestive than SLEEPCAST, which is a made up word replacing "POD" with "SLEEP". More inventive than simply jamming two generic words together (FASHIONSUPPORT). My belated two cents.
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