TMEP Sec. 1209.03(k) "Laudatory Terms"
I have found what seems like an interesting recent development in the TTAB’s handling of statements of “mere puffery” as laudatorily merely descriptive marks and the possible overruling of this practice by the CAFC in the recent Duopross case involving the SNAP SIMPLY SAFER mark (Duopross Meditech Corp. v. Inviro Medical Devices, Ltd., 103 USPQ2d 1753, 1759 (Fed. Cir. 2012) ), TTABlogged HERE. While preparing a response ...more »
I have found what seems like an interesting recent development in the TTAB’s handling of statements of “mere puffery” as laudatorily merely descriptive marks and the possible overruling of this practice by the CAFC in the recent Duopross case involving the SNAP SIMPLY SAFER mark (Duopross Meditech Corp. v. Inviro Medical Devices, Ltd., 103 USPQ2d 1753, 1759 (Fed. Cir. 2012) ), TTABlogged HERE.
While preparing a response arguing a descriptiveness refusal, I reviewed a TTAB case in which the Board reversed a descriptiveness refusal of CRAZY GOOD for Kellogg’s Pop-Tart goods, In re Kellogg North America Co., Serial No. 78724957 (June 30, 2008) which is TTABlogged HERE. I found this to be a really well argued case on both sides with a great discussion about the doctrine of laudatorily merely descriptive, including a dissent and a concurrence (how often does a TTAB decision contain an opinion by each judge) The Board majority reasoned its decision that CRAZY GOOD is suggestive and not merely descriptive saying:
Accordingly, for the reasons discussed above, it is found from the record herein that applicant's "CRAZY GOOD" mark would most likely be understood by consumers of its goods as a highly suggestive figure of speech or hyperbole in that it would be regarded as an exaggeration or extravagant statement of the goodness of applicant's toaster pastries and fruit preserve filled pastry products rather than being taken literally as a term which merely describes goods which are extremely or otherwise exceedingly or superlatively good in some particular way or ways (emphasis added).
The concurrence in Kellogg reasoned its non-descriptive conclusion stating, "...the involved term [CRAZY GOOD] is a combination of two common English words where a certain amount of creative imagination is required to intuit from this term a specific attribute of the pastries" and “I would argue that the term CRAZY GOOD seems to be mere puffery which would leave customers for the pastries to speculate as to what particular quality, characteristic or function the term refers.” Judge Grendel disagreed based upon the sufficiency of the evidence.
That is how I always understood laudatory descriptiveness to be applied by the USPTO – that the allegedly laudatory term has to be something concrete, specific and clearly applicable to a particular characteristic of the good or service at issue; not merely a term that connotes a positive attribute but could have other meanings as well.
The Kellogg decision was in 2008. Then, this past year, the CAFC in the Duopross case reverses the Board’s decision that the SNAP SIMPLY SAFER mark is NOT merely descriptive for a medical syringe in which the plunger can “snap” off and lock the used needle in the syringe. The Board apparently based its decision on the same reasoning as in its Kellogg case, namely that “because SIMPLY SAFER is a laudatory phrase or puffery, the phrase renders the mark more than descriptive.” In concluding that SNAP SIMPLY SAFER is laudatorily merely descriptive, the CAFC stated: “…adding SIMPLY SAFER to SNAP does nothing more than laud the safety of Inviro’s products, which, as discussed above, is a merely descriptive use.”
Now maybe these cases are distinguishable in the differences of the commercial impressions conveyed by the adjectives CRAZY and SIMPLY, am I correct to interpret the CAFC decision as overturning the Board’s and PTO’s practice that hyberbolic, potentially ambiguous laudatory marks are suggestive instead of laudatorily descriptive?
I think it would be great if the USPTO could issue an Examination Guide on the “laudatorily merely descriptive” doctrine in Trademark Act Section 2(e)1, especially since the CAFC decision in Duopross Meditech Corp. v. Inviro Medical Devices.
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