The Board sustained oppositions to registration of ENHANCED PUSH-TO-TALK for telecommunication services on the ground of mere descriptiveness under Section 2(e)(1), and to AT&T ENHANCED PUSH-TO-TALK for the same services, in the absence of a disclaimer of "ENHANCED PUSH-TO-TALK. (Applicant AT&T had already disclaimed PUSH-TO-TALK in both applications.) Because ENHANCED PUSH-TO-TALK is "highly descriptive" of
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Opposer's witness testified that
Based on the dictionary definition, the Board found that the term "enhanced" means "to increase or improve in value, quality, desirability, or attractiveness." "It is this "dictionary sense" in which "enhanced" is being used in the telecommunications market, and it is not being used in a source-identifying manner by Applicant."
Third-party registrations for marks that included the word "enhanced" were too few to be persuasive regarding descriptiveness. More persuasive was the number of descriptive uses by
[W]e find each of the words comprising the term "enhanced push-to-talk," "enhanced" and "push-to-talk," is highly descriptive of telecommunication services of the type provided by Applicant. Moreover, when combined, we further find the composite terminology "enhanced push-to-talk" is, at the very least, highly descriptive of a walkie talkie type service provided over a cell phone accompanied by additional features and functionality.
Turning to the issue of acquired distinctiveness,
The Board found that "the nature and number of descriptive uses in the record by Opposer and third-parties of 'enhanced push-to-talk,' 'enhanced' and 'push-to-talk' indicate that use by Applicant has not been 'substantially exclusive' as is required for a showing of acquired distinctiveness." Therefore, "enhanced push-to-talk" is not perceived by consumers as an indicator of a single source.
Moreover,
And so, the Board sustained the opposition as to the ENHANCED PUSH-TO-TALK application and allowed
The TTABlog
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