Monday, June 27, 2022

TTAB Affirms FLIPPABLE FIRMNESS Refusal: Specimens Do Not Show Use With Retail Store Services

The Board affirmed a refusal to register the proposed mark FLIPPABLE FIRMNESS for "Online retail store services featuring bed frames, foundations, mattresses, pillows, toppers, and bed sheets" on the ground that the specimens of use do not show use of the mark in connection with the services identified in the application. Examining Attorney Monica R. Reid agreed that Applicant Layla offers retail store services, but the term FLIPPABLE FIRMNESS refers only to a "touted feature" of a mattress product. In re Layla Sleep, Inc., Serial No.88359361 (June 24, 2002) [not precedential] (Opinion by Judge Robert H. Coggins).

The Board agreed with the Examining Attorney, finding that "[t]here is nothing on any specimen that refers to, or even suggests, that there is such a thing as a FLIPPABLE FIRMNESS online retail store service." The text surrounding the term supported that finding. "The web pages advertise the advantages of a FLIPPABLE FIRMNESS mattress – that is, a mattress a consumer can flip to obtain different levels of firmness or support – and the Google Display Ads list it as a feature. In each of the substitute specimens, the mark is preceded by “with” (or its abbreviation)."

We recognize that the first substitute specimen includes an interactive link leading to Applicant’s website, the second substitute specimen contains a “visit site” button, and the third substitute specimen contains an add-to-cart button (presumably as does the original specimen based on Applicant’s explanation of what happens when a consumer scrolls the webpage). However, none of the specimens creates the required direct association between FLIPPABLE FIRMNESS and online retail store services. Instead, the mark simply promotes Applicant’s goods by describing a feature thereof.

And so, the Board affirmed the refusal to register.

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TTABlogger comment: WYHA?

Text Copyright John L. Welch 2022.


At 7:33 AM, Anonymous Anonymous said...

Seems to me the services should have been goods.


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