Wednesday, June 22, 2022

TTABlog Test: Is "GOLDN PAYDIRT" Merely Descriptive of Gold and Other Precious Metals?

The USPTO refused to register the proposed mark GOLDN PAYDIRT for ""Gold; Gold bullion; Gold ore; Gold and its alloys; Gold, unworked or semi-worked; Gold, unwrought or beaten; Palladium; Palladium and its alloys; Precious metals; Precious metals and their alloys; Precious metals, unwrought or semi-wrought; Silver; Silver bullion; Silver ore; Alloys of precious metal; Platinum; Unworked or semi-worked gold," finding the mark to be merely descriptive of the goods. Examining Attorney Jesse A. Maihos maintained that the mark describes a feature of applicant's goods, which comprise "paydirt that is golden in color and contains gold and minerals." Applicant Walrus Rodeo argued that "[t]here is no guarantee of gold. It is suggestive that there might be gold in there." How do you think this came out? In re Walrus Rodeo LLC, Serial No. 88728723 (June 13, 2022) [not precedential] (Opinion by Judge David K. Heasley).



Walrus Rodeo explained that its goods are novelty items: bags of dirt through which consumers can sift in hopes of striking gold. The mark GOLDN PAYDIRT should not be taken literally, according to applicant, but “as a figurative and thus suggestive indicator of the rewards offered to the consumer.”

The Board, however, agreed with the Examining Attorney. As indicated in the application, the goods must contain some amount of gold or other precious metal. Walrus Rodeo's advertising states: “Guaranteed Real Native Gold Inside!” and “When used correctly, all paydirt will contain randomly varied amounts of gold." The term "paydirt" is defined as "earth or ore that yields a profit to a miner." Applicant's competitors use the term in the same sense as applicant, as evidenced by ten third-party websites.

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: Is this a WYHA?

Text Copyright John L. Welch 2022.

2 Comments:

At 4:03 PM, Anonymous Stephen L. Anderson said...

As for the (bag of dirt) goods, I get it and I concur.

As for services however, I panned the decision and saw no nuggets that were mined to suggest that the mark would be merely descriptive of Class 41 amusement park services.
Perhaps the Applicant should have considered the prospect of class 41 a bit more carefully.

 
At 7:10 PM, Blogger John L. Welch said...

Maybe so, Steve. It was a run-of-the-mine Section 2(e)(1) case for the class 14 goods.

 

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