Thursday, January 18, 2024

In 2023, How Often Did the TTAB Affirm Section 2(e)(1) Mere Descriptiveness/Disclaimer Refusals?

By my count, in 2023 the Board issued final decisions in 60 appeals from Section 2(e)(1) mere descriptiveness refusals or from disclaimer requirements based on mere descriptiveness. The Board affirmed 56 of the refusals and reversed four. That's an affirmance rate of about 93%.

One of the affirmances was deemed precedential: for the mark DXPORTAL for the service of "providing an Internet website portal in the healthcare field to provide a patient and caregivers with the patient's drug prescription information." [TTABlogged here].

The four reversals were as follows: 

  • ADVANCED FIBER TECHNOLOGY for “Medical catheters for use in the peripheral, coronary, and neuro vasculature; Component parts of medical catheters" [FIBER TECHNOLOGY disclaimed]. [pdf here]. 

  • BEAUTY POPS for a "cosmetic kit for applying superfoods that function as a facial mask for nourishing and revitalizing the skin, the kit comprising face mask powder, tray, spatula and spoon, the foregoing used, when the powder is mixed with water and frozen, to create an applicator that has the appearance of a lollipop." [TTABlogged here].

  • URBAN TOWER for, inter alia, antenna installation and repair, Internet service provider services; leasing commercial fixed wireless spectrums; wireless telephone services; and design and development of wireless communication systems. [pdf here].

  • HEALTH PERKS for "Providing information in the fields of health and wellness" [Disclaimer requirement]. [pdf here].

Set out immediately below is a bar chart showing the sinusoidal history of Section 2(e)(1) mere descriptiveness appeals. Will the "curve" continue upward in 2024 or head back down?

Click on image for larger picture

Read comments and post your comment here.

TTABlogger comment: The BEAUTY POPS case featured two reversals: one under Section 2(d) and the other Section 2(e)(1).

Text Copyright John L. Welch 2024.


At 9:42 AM, Blogger Gene Bolmarcich, Esq. said...

Truly a flip of the coin..albeit one weighted 93% heavier on one side (although I'm not sure of the physics of that). Doesn't blackjack have better odds?

At 9:49 AM, Anonymous David Perlsack said...

More like a spinning pie chart. When you throw your dart, it might land in the "reversed" slice of the pie.


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