Thursday, October 12, 2006

When is a trademark "descriptive"?

I'm steamed a little bit.

I have a client who has "24 7" as a part of several different trademarks. Two of them were recently rejected and (partially) one was because "24 7" is descriptive of "continuous."

It's hard to disagree with a part of the statement, but a consumer has to make what is called a multi-step logical thought process in order to go from seeing "24 7" to knowing it means "24 hours a day, 7 days a week." Also, I was unable to find any other trademarks with "24 7" that were rejected because "24 7" was deemed to be descriptive as "continuous."

Remember, in trademark law, the best mark is one that has no elements of the product - in other words, one that does not describe the product.

Let's take a quick look at two marks that registered today - EZ-COROSA and EZ-HYPERIC - and a quick look at a mark many commuters know - E-ZPASS.

Is not "E-Z" just a description for "easy," or "simple," or "facile"? E-ZPASS represents a system to make payments at toll booths easy, right? The goods/services description reads "services provided to travelers; namely, collection of tolls using an electronic system to expedite passage of such travelers through a toll facility." In other words, it makes paying tolls easy! (The mark is too old for the USPTO to store all its paperwork on the USPTO website, but you can see that the mark was never rejected!)

EZ-COROSA and EZ-HYPERIC both come from a Danish company for selling dietary supplements. Hmm. Is this because the goods both marks represent are to make our lives easier? You'll find phrases like "preparations to promote digestion," and "weight-reducing and meal replacements mainly consisting of processed cereals," and "nutritional supplements and food supplements for medical purposes...." In other words, yes, they're to make our lives easy.

So if a part of my clients' mark that has "24 7" is descriptive of "continuous," why are all these marks not descriptive of something that is easy when they all contain something that sounds like "Easy" in the marks?

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