TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?

By my count, the Board has affirmed more than 90% of the Section 2(e)(1) mere descriptiveness refusals that it reviewed so far this year. Here are three more. How do you think they came out? [Results in first comment].

In re Family Defined Benefits, LLC, Serial Nos. 97248954 and 97248972 (November 27, 2023) [not precedential] (Opinion by Judge Jonathan Hudis). [Mere descriptiveness refusals of ASK ME ABOUT RISK TAXES REGULATION INFLATION DEPRECIATION OF THE DOLLAR for, inter alia, annuity services, estate planning, business training, and for downloadable webinars in the field of tax preparation and estate planning. Applicant pointed to existing registrations for the marks ASK ME ABOUT MY WIENER, ASK ME ABOUT REALTY IN HOUSTON!, ASK ME ABOUT SURROGACY, and ASK ME MONEY THINGS to show the USPTO's history, pattern, or practice of registering marks “in the form ‘Ask Me About’ + a generic or descriptive term."]

In re MBA Media Group, LLC, Serial No. 90746611 (December 5, 2023) [not precedential] (Opinion by Judge Thomas L. Casagrande) [Refusal to register NAME IMAGE LIKENESS VALUATION for ““Promotional and marketing services; branding services, namely, consulting, development, management and marketing of brands for public persons, including athletes and entertainers, based on name, image, likeness." Applicant argued that its services do not provide any "determination” of the value of a client's NIL "but rather are associated with increasing such a value." It further argues that the proposed mark is not descriptive because it only "suggests the desired result of the services not the service itself [sic]."]

In re Clara Foods Co., Serial No. 90746431 (December 15, 2023) [not precedential] (Opinion by Judge Wendy B. Cohen) [Mere descriptiveness refusals of the proposed mark ALL PROTEIN. NO ANIMAL for "proteins for the food industry; enzymes for the food industry; enzyme preparations for the food industry; bioactives for the food industry, namely, yeast fermentation byproducts, namely, oligosaccharides in the nature of unprocessed polymers, fatty acids, carotenoids, lutein, zeaxanthin, and branch chain amino acids, all being chemicals for use in the manufacture of foods." Applicant argued that "given the syntax of the combination of these two short abrupt sentences, the terms do not directly tell consumers a characteristic or function of the goods." It further argued that there was no evidence of third-party use of the proposed mark.]

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Text Copyright John L. Welch 2023.