Wednesday, January 11, 2023

In 2022, How Often Did the TTAB Affirm Section 2(e)(1) Mere Descriptiveness/Disclaimer Refusals?

In 2022, by my reckoning, the Board issued final decisions in 51 appeals from Section 2(e)(1) mere descriptiveness refusals or from disclaimer requirements based on descriptiveness. The Board affirmed 45 of the refusals and reversed 6 refusals. That's an affirmance rate of about 88.2%.

One of the affirmances was deemed precedential: namely, the SMART BEZEL case [TTABlogged here], in which the Board found the proposed mark to be merely descriptive of "electronic sensor modules for controlling and integrating home automation systems, lighting systems, and smart heating systems" [SMART disclaimed].

One of the reversals was labeled precedential: namely, the Lego case [TTABlogged here], in which the Board overturned a requirement that Lego disclaim the word KID in both Latin and non-Latin characters, in the two marks shown below for various goods and services primarily aimed at children. The Board found each mark to be unitary, and therefore disclaimers were not required.

Here is a list of the marks (with application serial numbers) involved in the six reversals:

  • THE STEVIE WONDER SONG PARTY (88388322) [disclaimer of SONG PARTY]
  • HOME OF THE HYBRID TIRE (88675139) [disclaimer of HYBRID TIRE]
  • MONKIE KID & Design (88698784) [disclaimer of KID in both Latin and non-latin characters]
  • THE FARMHOUSE BY RACHEL ASHWELL (88737743) [disclaimer of FARMHOUSE]
  • LUKUMADES (Stylized) (88844592) [mere descriptiveness refusal]
  • PLM TRUSTLINK (90136321) [disclaimer of TRUSTLINK]


Most 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 eleven years:

Read comments and post your comment here.

TTABlogger comment: So as a rule of thumb, one could say that nine out of ten are affirmed.

Text Copyright John L. Welch 2023.

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