TTABlog Test: Is BLADE Merely Descriptive of Hammers for Hammer Mill Machines?

The USPTO refused to register the proposed mark BLADE for a "hammer sold as an integral component of hammer mill machines" on the ground of mere descriptiveness under Section 2(e)(1). Applicant Jacobs Corporation argued that that its hammers are employed in hammer mills "to crush and pulverize; they do not slice or cut as blades do." How do you think this came out? In re Jacobs Corporation, Serial No. 97513349 (April 22, 2025) [not precedential] Opinion by Judge George C. Pologeorgis).

In its brief, as an alternative to affirming the refusal, Jacobs requested "an indication from the Examining Attorney that the applied-for-mark can be registered on the Supplemental Register." Fuhgeddaboudit, said the Board. Construing this request as a proposed amendment to the Supplemental Register, the Board pointed out that Jacobs should have asked for suspension of the appeal and a remand to the USPTO for further examination pursuant to Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d).

Examining Attorney Jeri Fickes relied on two third-party utility patents - one for a "blade system for hammer mills" and the other for "hammer mill blade which will cut or pulverize a large quantity of material per hour with a minimum power expenditure" - on advertisements from online retailers for "hammer blades" used as a part for hammer mill machines, on third-party articles about hammer milling, and on Jacobs's own specimen of use (shown above).

In addition to its argument that its hammers do not slice or cut, applicant pointed to the language in the final office action stating that BLADE is "potentially" merely descriptive of a feature of Jacobs’s goods. "Applicant argues that the Examining Attorney has failed to meet her burden of establishing that the applied-for mark 'is' merely descriptive, rather than 'potentially' descriptive of the identified goods."

The Board rejected the "slice or cut" argument: "Such an interpretation . . . ignores the other meaning of 'blade' as used in the context of Applicant’s goods and as demonstrated by the evidence of record. The record reveals that it is not uncommon within the industry of hammer milling machinery for parts of the machinery to be referred to as a 'blade' or a 'hammer blade.'"

As to the "potentially descriptive" argument, the Board noted that Jacobs did not satisfactorily comply with the Examining Attorney’s request for information under Trademark Rule 2.61(b) until it filed its request for reconsideration.

It is not uncommon to indicate that a mark is potentially descriptive [or] misdescriptive [or]deceptive until such time that an applicant complies with an information request under Trademark Rule 2.61(b). Here, Applicant only responded satisfactorily to the information request in its request for reconsideration. In any event, not only does the evidence of the record clearly establish that Applicant’s BLADE mark is merely descriptive of the identified goods, but Applicant had adequate notice at all times as to the nature of the refusal.

The Board deemed the evidence "more than sufficient" to show that the term BLADE, when used in connection with Jacobs's goods, "would immediately convey to relevant consumers important information regarding the form or feature Applicant’s goods and is therefore merely descriptive of those goods."

And so, it affirmed the refusal to register.

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Text Copyright John L. Welch 2025.