Thursday, January 25, 2024

CUESZ Is Deceptively Misdescriptive of Cue-less Fitness Training Services, Says TTAB

The Board upheld a Section 2(e)(1) refusal to register the proposed mark CUESZ, finding it to be deceptively misdescriptive of "Real time personal fitness training services including performance, nutritional, medical restorative and mindfulness personal fitness training and further including conditioning and recovery strategies therefor to individual clients." In response to an initial mere descriptiveness refusal, the applicant stated that he had "no intention to provide prompting or reminders from the instructor/trainer, now or in the future." After that, things went south. In re Mark Beveridge, Serial No. 90647376 (January 17, 2024) [not precedential] (Opinion by Judge Jennifer L. Elgin).

As the first part of the deceptive misdescriptiveness test, a mark is misdescriptive "when it is merely descriptive, rather than suggestive, of a significant aspect of the [services] . . . which the [services] . . . plausibly possess but in fact do not." The Board observed that "[a] novel or misspelling of a word will not turn a descriptive word into a non-descriptive mark."

Examining Attorney Nelson Snyder pointed to a promotional video made of record by Applicant Beveridge which uses the subject mark in advertising, pronounces the mark as the word “cues,” and shows individuals participating in various fitness activities. Based on a number of Internet references, the examining attorney argued that "the mark’s sole term (properly spelled as CUES) identifies a characteristic or feature of the identified services, namely, that they involve ‘reminder[s], prompting, hint[s], or suggestion[s]’ from the trainer/instructor."

The Board found that the Office had established a prima facie case that "cues" is merely descriptive of an aspect of Applicant’s physical fitness training services.

In view of the evidence of record as a whole, we find it plausible that that physical fitness training services could feature cues, rendering the mark CUESZ merely descriptive for Applicant’s “real time personal fitness training services including . . . conditioning . . . strategies therefor to individual clients.” Because Applicant represents that his training services do not involve cues, the misspelled term CUESZ misdescribes Applicant’s services under the first factor of the test.

The second element of the deceptive misdescriptiveness test asks whether a reasonably prudent consumer would be likely to believe the misrepresentation. The Board found that "[t]he uncontroverted evidence of record demonstrates that consumers are accustomed to encountering cues in personal fitness training and conditioning."

It is likely, therefore, that the reasonably prudent consumer (i.e., someone who receives personal fitness training services) would believe that Applicant’s services, promoted under the proposed CUESZ mark, would feature corrective exercise cues.

And so, the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: I'm not convinced that "cues" isn't merely suggestive.

Text Copyright John L. Welch 2024.


At 10:03 AM, Anonymous Anonymous said...

I have never once heard the term “cue” used in conjunction with exercising nor do I have any association with it. Really surprised it was considered descriptive.

At 11:53 AM, Anonymous Brok Humbert said...

A "cue" is a fairly common term in weightlifting circles to refer to a reminder of an aspect or technique of an exercise (e.g. "drive your feet into the floor" while deadlifting).

At 12:06 PM, Blogger Bob Cumbow said...

I'm equally surprised. How did they get from "we find it PLAUSIBLE that that physical fitness training services COULD feature cues" to "IS misdescriptive"? And did they consider at all whether a reasonable consumer would perceive CUESZ not as a misspelling of "cues" but as an outright fanciful mark? That's exactly how I responded to it at first glance.

At 10:44 PM, Anonymous Alex B. said...

What if the trainer of that training class, or the trainer who invented the workout, was named Susie? Why was the mark necessarily pronounced as CUES instead of CUE SUSIE or the like? I guess it is necessary to read the whole opinion to see what the evidence of record was.


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