Thursday, May 22, 2014

SPIDERGRAPH Merely Descriptive of Printed Graphs and Charts, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register the mark SpiderGraph, finding it to be merely descriptive of "printed material, namely, printed graphs and charts for use in the comparison and analysis of alternative choices in decision-making applications." Applicant's ownership of a now-expired registration for the same mark for the same goods was of no help. In re Chester, Serial No. 85220392 (May 20, 2014) [not precedential].

Prior Registration: The Board observed that, even though a term may be distinctive at its adoption, it may become merely descriptive over time. Moreover, the Board is not bound by the prior decision of the examining attorney who examined the prior application. Each case must be decided on its own merits. And a cancelled registrations provides none of the legal presumptions under Section 7(b) of the Act.

Mere Descriptiveness: Examining Attorney Nicholas A. Coleman provided Internet web pages referring to "spider graph" and "spider chart." For example, "[a] spider chart is a specialized type of chart that represents your data on a series of spokes (or radians), where each spoke is an attribute you are trying to measure, and the spoke's value is the distance from the center of the graph."

Applicant Gregory L. Chester feebly contended that the PTO's evidence did not show his particular charts, but the Board referred to the identification of goods in concluding that the mark conveys to consumers "an idea of an ingredient, quality, characteristic, feature, purpose or use of the goods."

Civility: The Board once again had to caution a pro se against personal attacks on the Examining Attorney [remember the FOK'N HURTS case, TTABlogged here].

Suffice to say that Applicant’s comments did nothing to advance the substantive prosecution of is application. The USPTO and the Board require all parties, whether represented by counsel or proceeding pro se, "to conduct their business with decorum and courtesy." Trademark Rule 2.192. In any future contact with the USPTO, Applicant should refrain from ad hominem attacks on USPTO personnel.

And so the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: Is this applicant selling charts, or real estate services? In other words, are these charts really "goods in trade" or are they merely part and parcel of applicant's services?

Text Copyright John L. Welch 2014.


At 10:00 AM, Anonymous Anonymous said...

applicant's briefs are really entertaining


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