I have reviewed the TTAB’s FOIA page in an attempt to estimate the percentage of Section 2(e)(1) mere descriptiveness refusals that were affirmed by the Board during the last calendar year (2017). I counted 107 refusals, of which 95 were affirmed and 12 reversed. That’s an affirmance rate of about 89%. So the odds are almost 9 out of 10 for affirmance. [Slightly lower than last year’s 90% rate, but then this is not an exact science].
Three of the mere descriptiveness cases were precedential.
In re Calphalon Corp., 122 USPQ2d 1153 (TTAB 2017) [TTABlogged here].[The Board affirmed a Section 2(e)(1) refusal to register the mark SHARPIN, in standard character form, finding it merely descriptive of “cutlery knife blocks which incorporate built-in sharpeners that automatically sharpen knives.” Applicant Calphalon asserted that the examining attorney had failed to enter its amendment of the mark to the special form “SharpIN” and instead improperly treated the mark as a standard character mark (although the examining attorney accepted the amendment to the drawing). Calphalon further contended that SharpIN (in special form) is incongruous or a double entendre. No dice, said the Board.]
In re Well Living Lab Inc., 122 USPQ2d 1777 (TTAB 2017) [TTABlogged here]. [The Board affirmed a Section 2(e)(1) refusal of the mark WELL LIVING LAB, finding it merely descriptive of scientific research services in the field of human health and wellness in indoor environments. Discounting applicant’s largely outdated evidence that “well living” refers to leading a moral life, the Board instead relied on more current evidence employing the phrase to mean “health and wellness.”]
In re United Trademark Holdings, Inc., 122 USPQ2d 1796 (TTAB 2017) [TTABlogged here]. [The Board affirmed a Section 2(e)(1) refusal of LITTLE MERMAID, finding the mark merely descriptive of “dolls.” Drawing a distinction between character names in the public domain and those derived from works in which the applicant owns intellectual property rights, the Board concluded that consumers will not perceive LITTLE MERMAID as a source identifier but instead will “understand the mark to describe the public domain character in the Hans Christian Andersen fairy tale, as well as a young or little mermaid.”]