TTABlog Test: How Did These Three Section 2(e)(1) Mere Descriptiveness Appeals Turn Out?
The TTAB recently ruled on the appeals from the three Section 2(e)(1) mere descriptiveness refusals summarized below. Let's see how you do with them. Results will be found in the first comment.
In re International Fruit Genetics, LLC, Serial No. 88710987 (January 5, 2023) [not precedential] (Opinion by Judge Marc A. Bergsman). [Mere descriptiveness refusal of COTTON CANDY for various food products, including yoghurt in Class 29, chewy sweets in Class 30, fruit beverages in Class 32, and non-alcoholic flavorings for make alcoholic beverages in class 33. The applicant argued that "consumers will perceive the mark as being suggestive because its COTTON CANDY products are not the 'common flavor’ of the spun, sugar candy floss concoction of carnivals and state fairs."]
In re Koch-Chemie GmbH, Serial No. 79286410 (January 10, 2023) [not precedential] (Opinion by Judge Robert H. Coggins). [Mere descriptiveness refusal of THE FINISHER (in the form shown below) for various surface finishing products in classes 1, 2, 3, and 21, including wetting agents, varnish, polishing wax, and auto polish. Applicant maintained that "because its proposed mark identifies a product that 'performs an action … employing a finish,' an extra step of imagination, thought, or perception is required to reach a conclusion as to the nature of the goods, and therefore the mark does not 'immediately” tell something about the goods.'"]
In re Biomineral Systems, Serial No. 88239954 (January 12, 2023) [not precedential] (Opinion by Judge Martha B. Allard). [Mere descriptiveness refusal of BIOMINERAL for various products, including plant growth stimulants, soil conditioners, and pesticides, all for use in activating or deactivating soil biominerals. Applicant argued that its products do not contain biominerals.]
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TTABlog comment: How did you do? See any WYHAs here?
Text Copyright John L. Welch 2022.
posted by John L. Welch @ 1/19/2023
7 comments
7 Comments:
All three were affirmed
LOL on the cotton candy one. That is a challenge to argue the goods don't taste like cotton candy when the specimen itself boldly states otherwise.
The Finisher seemed to me to be the only one in some doubt. I can see Applicant's arguments here. The goods are not immediately apparent, nor does it seem immediately descriptive of a characteristic, feature or function, though it is a close call.
Cotton candy grapes are my favorite fruit. They do not taste like cotton candy. It's a suggestive mark
International Fruit destroyed what would be a suggestive mark by their packaging (that clearly was not reviewed by a trademark attorney). Taste, is way too subjective. Do we just automatically believe the trademark owner? Shouldn't the Board have done a taste test? If they were called "meatloaf" grapes but tasted nothing like meatloaf even though the packaging touted the fact that they do, would that be merely descriptive? That would seem a ridiculous result. So doesn't this come down to a taste test to decide whether the mark is merely descriptive?
Agree with Anonymous #2 re; The Finisher. Supplemental at least.
Does all cotton candy taste the same? I though there were different flavors...
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