IP Law Daily, TRADEMARK—TTAB: DOCK BLOCKS mark was descriptive and lacked acquired distinctiveness, (Sep 12, 2022)

By Kevin M. Finson, J.D.

The proposed mark DOCK BLOCKS was not quite generic but was highly descriptive of the goods in question and lacked acquired distinctiveness because the applicant did not provide anything but modest advertising and sales numbers that lacked context to show market penetration.

A seller of floating docks’ proposed mark DOCK BLOCKS was merely descriptive and lacked acquired distinctiveness, the Trademark Trial and Appeal Board has held. There was a lack of context to provide support for sales and advertising figures. Although TTAB reversed the genericness refusal, it also found that the Applicant fell far short of carrying its heavy burden of showing that its highly descriptive proposed mark, DOCK BLOCKS, has acquired distinctiveness. Thus, the Board affirmed the refusal to register DOCK BLOCKS on the Principal Register based on mere descriptiveness and the absence of acquired distinctiveness (In re Dock Blocks of North America, LLC, September 8, 2022, Larkin, C.).

Dock Blocks of North America, LLC (Dock Blocks) sought registration on the Principal Register of the standard character mark DOCK BLOCKS for modular floating non-metal docks, walkways, swimming platforms, and lifts for holding watercraft in International Class 19. The Examining Attorney refused registration on two alternate grounds; first that the mark was the generic name for the identified goods, and second that the mark was merely descriptive and lacked acquired distinctiveness. Dock Blocks appealed.

Genericness. The Examining Attorney argued from dictionary definitions and industry use of the two words that the ordinary consumer would interpret DOCK BLOCKS as floating blocks used in assembling docks and similar structures. Dock Blocks did not dispute the meaning of the individual terms but argued that there was no evidence of its use as a combined term by any third parties. The Board held that the strongest evidence of possible genericness was Dock Blocks’ own mixed use of the term as both a generic name for the goods and a source indicator, as when it described its goods as blocks used for docks and as the name of its company. The Board held that while it was clear that DOCK BLOCKS was an apt name for the goods, “aptness” was not enough to prove genericness, and it felt constrained to resolve any doubt in favor of the applicant. The mixed use as both a generic term and a source indicator and limited record of use by others of the compound name created such doubt. The Board reversed the refusal to register on the ground of genericness.

Descriptiveness. Dock Blocks did not dispute that its proposed mark was descriptive. The only issue was whether it had shown acquired distinctiveness. The Board noted that for all the reasons that the mark was very nearly generic, it was highly descriptive. Dock Blocks argued that it had used the mark for nearly ten years, but the Board noted that advertising and sales figures were only provided for the last five. While Dock Blocks provided advertising expenditures and sales figures, the Board noted that they were somewhat modest and lacked contextual information that would show how much of the market had been reached. Social media information likewise showed only a modest following. The Board held that Dock Blocks did not meet its burden of showing acquired distinctiveness and affirmed the refusal to register on that ground.

The case is Serial No. 88320379.

Attorneys: Todd M. Hess (Business and IP Law) for Dock Blocks of North America, LLC. April Roach for the USPTO.

Companies: Dock Blocks of North America, LLC

Cases: Trademark USPTO