Another proposed mark ran into the TTABrick wall known as the failure-to-function refusal. The Board affirmed a refusal to register the phrase INVENTORY IS EVIL as a service mark for "business consulting; business consulting, management, and planning services in the field of product distribution, operations management services, logistics, reverse logistics, supply chain and production systems, and distribution solutions." The evidence provided by Examining Attorney Robert N. Guliano "overwhelmingly establishes that the term INVENTORY IS EVIL is a common phrase that is widely used in business management and consulting throughout a variety of industries." In re Arthur Koch Management Consulting, LLC, Serial No. 88325642 (May 10, 2021) [not precedential] (Opinion by Judge Mark Lebow).
Matter that is widely used to convey ordinary or familiar concepts or sentiments, or similar informational messages that are in common use, would not be perceived as indicating source and is not registrable as a mark. See In re Mayweather Promotions, LLC, 2020 USPQ2d 11298, at *1 (TTAB 2020) (PAST PRESENT FUTURE); Team Jesus, 2020 USPQ2d 11489 at, *7 (TEAM JESUS); Texas With Love, 2020 USPQ2d 11290, at *2 (TEXAS LOVE); see also D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1716 (TTAB 2016) (I ♥ DC). "The more commonly a phrased is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark [or service mark]." In re Eagle Crest, Inc., 96 USPQ2d at 1229.
The Examining Attorney provided dictionary definitions of "inventory" and "evil" and printouts from numerous third-party websites, to support his argument that "[t]he expression INVENTORY IS EVIL is commonly used in the business supply chain and logistics industry as an adage or mantra and, in the context of business consulting, management, and planning services, informs consumers that the principle guiding those services is that having goods on hand causes harm."
The Board agreed with the Examining Attorney, finding that the evidence "overwhelmingly establishes that the term INVENTORY IS EVIL is a common phrase that is widely used in business management and consulting throughout a variety of industries, in news articles, and in academia, as an adage or mantra expressing the concept or sentiment that large inventories of goods can be extremely damaging to the economic well-being of companies in any industry for a variety of reasons, and that reducing inventory can save businesses and even a global crisis brought on by a recession or a pandemic."
Applicant argued that the cited articles that use the phrase "Inventory is evil" do not refer to the sale or promotion of business consulting services, but rather to a broad concept that is not intended to be a source indicator. The Board was unimpressed: "The fact that the plethora of evidence in this case shows widespread use and common use of the term INVENTORY IS EVIL as a well-known concept within the industry of business management and consulting, and not as a mark promoting goods or services, does not detract from its probative value; it enhances it."
While not used as a mark in the evidence, the term INVENTORY IS EVIL is routinely used by providers of business management and consulting services, or other services, in the course of explaining this well-known business management concept, either to agree or disagree with it, as shown by the evidence.
Applicant conceded that "[t]he concept behind Applicant's INVENTORY IS EVIL mark stems from a quote by Tim Cook, the current CEO of Apple," who was quoted widely in the Internet articles of record. The Board again agreed with the Examining Attorney: "the evidence of a prominent business leader's adoption of a closely similar phrase as a business principle enhances the mark's significance as a business mantra and reinforces the commonality of the phrase in the minds of business consulting, management, and planning consumers."
Applicant provided several examples of its use of the term INVENTORY IS EVIL on its website but none demonstrated that the phrase INVENTORY IS EVIL would be perceived as a source-indicator for business consultation services.
Consequently, the Board concluded that the term INVENTORY IS EVIL fails to function as a mark under Sections 1, 2, 3 and 45 of the Trademark Act.
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