In the latest in a stream of failure-to-function affirmances, the Board upheld a refusal to register the proposed mark DESIGNED, SOURCED AND BUILT IN THE USA for industrial chemicals, hand-sanitizing preparations, face mask, and sneeze guards, finding the phrase to be merely informational. Applicant NuGeneration asserted the Examining Attorney Andrew Crowder-Schaefer did not provide sufficient evidence of "uses of the exact wording" for the same or similar goods, and further argued that the phrase is incongruous when applied to chemicals and sanitizers. The Board was unimpressed. In re NuGeneration Technologies, LLC, Serial Nos. 88852858 and 88866690 (April 7, 2022) [not precedential] (Opinion by Judge Cheryl S. Goodman).
The evidence showed use of "Designed in America," "Sourced in America," and "Built in America" separately for hand sanitizers, masks, and germ/face shields. It also included use of the entire phrase "Designed, Sourced and Built in the USA" [with and without the Oxford comma] for goods unrelated to the identified goods. [see example above]. NuGeneration charged that the Examining Attorney had mutilated its mark, and that the evidence "does not demonstrate that Appellant's mark is used in everyday parlance' or that it is 'a familiar everyday expression or slogan,' and fails to show the phrase is 'widely used in the marketplace' in relation to similar goods."
The Board, however, found that "the website evidence of the separate uses of the phrases "designed in the USA," "sourced in the USA," and "built in the USA" show how consumers are exposed to the informational terms that compose Applicant's mark as a whole." As to the lack of evidence of use of the entire phrase "designed, sourced and built in the USA" in connection with the identified goods, "the Examining Attorney's evidence shows that all types of businesses have adopted this slogan." And as to the argument regarding failure to show "widespread use," the Board observed that "[a]lthough the volume of evidence in this case is not as large as in other Board cases, there is no specific rule as to the exact amount or type of evidence necessary to prove informational use."
Finally, the Board rejected NuGeneration's argument that the refusal was "premature" because the subject application is based on intent-to-use under Section 1(b). The Board, however, agreed with the Examining Attorney that a refusal may be issued "if information in the application record or other available evidence is dispositive of the failure of the relevant matter to function as a mark."
And so, the Board affirmed the refusal to register.
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TTABlogger comment: I expected the Board to say something to the effect that just because one is the first and only user of a proposed mark doesn't automatically make it a source indicator.
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