On December 10, 2015 Scott Slavick's article, "Girl Interrupted. Literally." was published in InsideCounsel.
Double Entendre? Say So Up Front or Do Nothing, Says Slavick
Trademark applicant Do Something! Inc. failed to persuade the TTAB that its applied-for mark, pregnancy text, was more than solely descriptive of its services "featuring a simulated pregnancy experience in mobile wireless form." In response, the company argued that its mark was not a common expression, and that it evoked the phrase pregnancy test, creating a double entendre and an incongruous twist of the actual meaning of pregnancy test.
The TTAB disagreed. In its non-precedential ruling in In re Do Something!, Inc., the Board upheld the USPTO examiner's descriptiveness refusal. It's enough that a term describes one significant attribute, function or property of the services, noted the Board.
The main takeaway from this case, says Brinks' Slavick in his latest article for InsideCounsel.com, is that if you're a trademark applicant and want to argue that your mark is a double entendre, say so from the outset—not in response to a refusal. Do Something! Inc. failed to deliver.
Originally published by InsideCounsel December 10, 2015
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