Tuesday, December 20, 2022

TTAB Affirms Mere Descriptiveness Refusal of HUMAN DATA MARKETPLACE for Online Sale of Data Assets

The Board affirmed a refusal to register HUMAN DATA MARKETPLACE as a service mark, finding it merely descriptive of "online retail services featuring data assets in the field of real time and non real-time data, namely, providing an online marketplace and platform for acquiring, buying, selling, trading, licensing, leasing, advertising, rating, standardizing, certifying, researching, distributing or brokering data assets" [DATA MARKETPLACE disclaimed]. The pro se applicant argued, without success, that the proposed mark is suggestive rather than merely descriptive because "HUMAN could refer to any number of ambiguous interpretations about the mark, especially if HUMAN is used as a noun." In re Human Data Labs, Inc., Serial No. 88526515 (December 15, 2022) [not precedential] (Opinion by Judge Michael B. Adlin).

(Click on picture for larger image)

Examining Attorney Janice L. McMorrow relied on dictionary definitions of the constituent words, on website evidence showing that one type of data is "human" data, and on several media articles using the term "human data."

Applicant argued that the proposed mark could be "interpreted" as:

(1) a “[c]onsumer ‘MARKETPLACE’ for HUMANS and their ideas & interactions instead of the automated, computerized systems that plague impersonal trading interfaces ... ;” (2) a HUMAN curated ‘DATA MARKETPLACE’ that focuses on individual, consumer preferences instead of generic, algorithmic searches …;” (3) a “‘DATA MARKETPLACE’ created by HUMAN engineers, who are focused on ‘humanizing data’ with ‘humane design … instead of an outsourced marketplace created with generic code;” or (4) “a collection of focus group feedback, online comments, handwritten letters, and phone calls.”

The Board, however, had no doubt that HUMAN DATA MARKETPLACE is merely descriptive because it "immediately conveys knowledge of a quality, feature, function, or characteristic of Applicant’s online marketplace and platform featuring data assets." "Specifically, the mark immediately conveys that Applicant’s marketplace/platform features 'human data,' a type of 'data asset' encompassed by Applicant’s identification of services."

The Board was unmoved by the applicant’s contention that the proposed mark is suggestive because it could be subject to multiple "ambiguous interpretations." First, the Board need only find that one meaning of the term is merely descriptive, and here the evidence established that HUMAN DATA MARKETPLACE is merely descriptive of a marketplace featuring human data. Second, the other potential meanings are also merely descriptive. And third, the mark must be considered not in the abstract, but in the context of the services identified in the application.

And so, the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Since the applicant appeared pro se, I decided not to label this a WYHA?. BTW, is the term generic, as a subgenus?

Text Copyright John L. Welch 2022.


At 11:36 AM, Anonymous Anonymous said...

Should be generic.


Post a Comment

<< Home