The USPTO refused registration of the mark ATHLETE
INTELLIGENCE, in standard character form, for wearable
monitoring devices and systems. Applicant argued that the mark is
merely suggestive of the goods because "multistep
reasoning" would be need to extract any information from the
mark, and further argued that the mark is a double entendre. How do
you think this came out? In re i1 Sensortech, Inc., Serial No.
87249539 (November 9, 2018) [not precedential] (Opinion by Judge
Angela Lykos).
Examining Attorney Andrew Leaser submitted dictionary
definitions of "athlete" and "intelligence,"
one of the definitions of "intelligence" being
"information." Competitors use "intelligence"
to describe biometric data or information collection products for
athletes.
The Board concluded that applicant's mark immediately
conveys a feature and purpose of the goods: they are designed to
collect intelligence from athletes, such as information and data,
regarding the performance, health and medical safety of
athletes." Applicant's website supports this
finding.
Applicant offered various other meanings of its mark, but the Board
observed that the marks must be considered in the context of the
goods. "[T]he question of whether a proposed mark is merely
descriptive is not determined by asking whether one can guess, from
the mark itself, what the goods are, but rather by asking, when the
mark is seen on or in connection with the goods, whether it
immediately conveys information about their nature." Here, no
imagination or thought is required to discern the nature of
applicant's goods.
As to the double entendre argument, applicant relied on an article
on degenerative brain disease suffered by athletes who have
sustained multiple concussions. Since concussions are in the news,
according to applicant, ATHLETE INTELLIGENCE could be perceived as
a reference to or "play" on the idea of preserving the
intelligence of an athlete engaged in contact sports.
The Board pointed out that the double connotations of the mark
"must be associations that the public would make fairly
readily." Both meanings must be readily apparent from the mark
itself, without reference to other indicia. The record did not
support "a finding that [the] alternative meaning of a
'play' on an athlete's intelligence is well-known or
readily apparent such that this alternative meaning might be called
to mind."
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