The Board found the the genus of goods at issue to be adequately defined by Applicant’s identification of goods. The Board focused its analysis on the second portion of the identification, "plastic storage containers for use within refrigerators." The relevant public consists of ......[wait for it] ......"the ordinary consumer interested in purchasing plastic storage containers for use within refrigerators."
Examining Attorney Amy L. Kertgate put together "an impressive record of web blogs and online discussion forums, advertisements, newspaper articles and dictionary definitions," leading the Board to conclude that there was "clear evidence to support a finding that the relevant public, when it considers FRIDGE BINZ! in connection with plastic storage containers for use within refrigerators, would readily understand the term to identify refrigerator bins."
We have seen that both words “fridge” and “bins” are generic in connection with applicant’s goods. The evidence of record also shows that the term “fridge bins” maintains its genericness when these words are combined, inasmuch as this is simply another name for storage containers for use within refrigerators
The Board noted that some online retailers use FRIDGE BINZ! when referring to Applicant's goods, but others "clearly promoted applicant’s goods online using the generic term, 'fridge bin[s],' spelled correctly[.]"
Finally, the Board observed that 'a novel spelling that is the phonetic equivalent of a generic term is also generic if purchasers would perceive the misspelling as the equivalent of the generic term." [For example, ICE PAK generic for ice packs; MINERAL-LYX generic for mineral licks for feeding livestock; SUPERHOSE! merely descriptive of a hydraulic hose.]
And so the Board affirmed the refusal.
TTABlog comment: Why isn't this a case where the mixed record (some generic usage, some not) creates enough doubt to avoid a genericness finding?
Text Copyright John L. Welch 2012.
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