Wednesday, May 24, 2023

Sustaining Tumblr's Opposition, TTAB Finds "TUMBLOG" Generic for .... Guess What?

In a rare opposition based on genericness, the Board sustained Tumblr's challenge to an application to register TUMBLOG for "[p]roviding customized on-line web pages and data feeds featuring user-defined information, which includes blog posts, new media content, other on-line content, and on-line web links to other websites," deeming the proposed mark to be generic for the recited services. The Board, without explanation, applied a "preponderance of the evidence" standard, ignoring CAFC case law requiring "clear evidence" of genericness. Tumblr, Inc. v. Mark David-Dale Kindy, Opposition No. 91252639 (May 19, 2023) [not precedential] (Opinion by Judge Jonathan Hudis).

There was no dispute that Applicant Kindy's recitation of services adequately defined the genus at issue. The Board found the relevant consumers to be "members of the general public who do or may take advantage of the services provided by blogging websites, including customized web pages and data feeds provided by such websites." "The critical issue in genericness cases is whether members of the relevant public primarily use or understand the term sought to be protected to refer to the genus of goods or services in question."

Kindy, appearing pro se, admitted that "the term 'tumblelog' and its contraction 'tumblog' are generic, or at best highly descriptive, for a microblog or a short-form blog," and that use of those terms in connection with blogging platforms has been "prevalent" for many years. Dictionary materials and news articles, in addition to Kindy's admissions, led the Board to the inescapable conclusion that TUMBLOG is a generic term for Kindy’s services.

Opposer Tumblr submitted the expert testimony of a linguistics expert with regard to the derivation of the term "tumblog." "Generally, the testimony of a linguistics expert has been accepted on questions such as to how a term or mark will be perceived or pronounced." Her testimony corroborated the other evidence on this point.

The Board, however, did not accept her testimony on the ultimate factual issue of genericness. "The Board is the ultimate arbiter of whether TUMBLOG is generic based on our assessment of the record as a whole, and we will not substitute the opinion of a witness, even an expert witness, for our evaluation of the facts."

Ultimately, the evidence pointed to one conclusion:

The relevant public also understands a “tumblog”, a contraction from “tumblelog” whose etymology is from the terms “tumble” and “log,” to be an alternative generic term for a microblog, that is, a specific form of a blog whose content is typically shorter, allowing users to exchange smaller elements of textual content (paragraphs or short sentences), images, video links, or links to other websites.

And so, the Board sustained the opposition.

Read comments and post your comment here.

TTABlogger comment: On the issue of the appropriate standard for proof of genericness, see Michael Hall's TTABlog article here.

Text Copyright John L. Welch 2023.


At 10:27 AM, Anonymous Anonymous said...

I'm probably behind the times, but tum or tumb does not identify anything to me.


Post a Comment

<< Home