TTAB Finds "GIGANTOSAURUS" Descriptive of Cartoon Dissemination Services, but Registrable Under Section 2(f)

The Board overturned a Section 2(e)(1) refusal to register the mark GIGANTOSAUROS for, inter alia, "cartoon dissemination services, namely, streaming of video material on the Internet," finding the mark to be "merely descriptive of a featured character with the name of the type of dinosaur depicted as used in connection with Applicant’s ... services," but further finding that applicant proved that the mark has acquired distinctiveness under Section 2(f). In re Cyber Group Studios, Serial No. 79303731 (December 12, 2023) [not precedential] (Opinion by Judge Cheryl S. Goodman).

Descriptiveness: The Examining Attorney provided evidence that a gigantosaurus was an enormous carnivorous dinosaur of the late Cretaceous period. Applicant’s website indicated that "Gigantosaurus" television show "is an animated preschool television series about four young dinosaurs who live during the Cretaceous period when 'Gigantosaurus, the biggest fiercest dinosaur reigns over it all.'"

The Board concluded that GIGANTOSAURUS is merely descriptive of cartoon dissemination services because the term "merely describes a featured dinosaur character in the preschool television series by using the name of the type of dinosaur depicted."

In the same way a term may be merely descriptive for printing and distributing magazines and television broadcasting services because it describes the content or subject matter being offered or featured, GIGANTOSAURUS is merely descriptive of Applicant’s “Cartoon dissemination services, namely, streaming of video material on the Internet.” GIGANTOSAURUS merely describes a featured dinosaur character in the preschool television series by using the name of the type of dinosaur depicted.

Acquired Distinctiveness: The Board found that applicant’s mark "is merely descriptive and not highly descriptive, so its burden is not commensurately high." [commensurate with what? ed.]. The Board applied the CAFC's Converse factors in considering applicant's Section 2(f) claim.

Applicant had a licensing agreement with Disney and its animated series was shown on the Disney channel (for three seasons). It spent $500,000 advertising the GIGANTOSAURUS brand and enjoyed unsolicited press coverage for the GIGANTOSAURUS television show prior to its premiere date. Forbes.com, with a reach of 30 million, published a placed story on the television series. 

Applicant had licensing arrangements for toys, bed linens, outdoor clothing, textiles, and videogames. Bloggers published party ideas based on the GIGANTOSAURUS brand through sponsored promotions from Applicant. "Influencer coverage, which included not just mommy bloggers but, among others, radio and news channels and newspaper websites, calculates total reach at 278,459,842 as of January 25, 2019."

Applicant’s evidence shows exclusive use, a large amount of advertising expenditure in a short period of time, and unsolicited media impressions with a tremendous amount of potential exposure, consumer impressions, and consumer reach prior to the premiere of the television series, in part due to “pickups” of the USA Today article, as well as a large amount of potential consumer exposure in the form of media impressions on the premiere date of the television series (January 18, 2019), also due to “pickups” of a second USA Today story. The influencer coverage, which includes solicited placements by Applicant, also show a sizeable and highly significant number of potential consumer impressions given the audience reach or followers of these sources as provided in the record. The total figures reflecting influencer coverage overall reflects widespread exposure relating to the GIGANTOSAURUS television show.

The Board found "the reach and number of commercial impressions generated in connection with the GIGANTOSAURUS brand in this brief period to be substantial." This extensive awareness campaign shows exclusive use and widespread exposure of the GIGANTOSAURUS mark to consumers in connection with the television series."

And so, the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Is this a WHYB? (Would you have blogged?)

Text Copyright John L. Welch 2023.