IP Law Daily, TRADEMARK—TTAB: GOLDN PAYDIRT mark was merely descriptive of novelty dirt bags containing gold flecks, (Jun 22, 2022)

By Kevin M. Finson, J.D.

The proposed mark GOLDN PAYDIRT was merely descriptive of goods containing gold because its literal meaning was a key component of the goods.

A seller of novelty bags of gold ore was unable to show that its mark was not merely descriptive, the Trademark Trial and Appeal Board has held, in affirming a Trademark Examining Attorney’s refusal to register. The mark’s literal interpretation comprised a key component of the applicant’s novelty bags of dirt which contained varying amounts of gold (In re Walrus Rodeo LLC, June 13, 2022, Heasley, D).

Walrus Rodeo, LLC (Walrus) sought registration on the Principal Register of the standard character mark GOLDN PAYDIRT for gold ore and related goods in International Class 14, various sorts of clothing in Class 25, amusement parks and related services in Class 41, and mining exploration and related services in Class 42. The Examining Attorney refused registration as to classes 14 and 42 on the ground that the mark was merely descriptive of the identified goods and services. Walrus appealed as to both classes but waived the Class 42 dispute by not raising it in its briefs.

Mere descriptiveness. Walrus argued that its goods, which consisted of novelty bags of dirt which contained varying amounts of gold were only suggested by the mark, because both “golden” and “paydirt” had non-literal meanings. Walrus also argued that not all the goods contained gold but were more like playing a slot machine because the buyer did not know how much, if any, gold he or she would receive. The Examining Attorney argued that the literal meaning of the words “golden,” even when misspelled as “GOLDN,” and “paydirt,” were plain and referred to the literal gold sold by Walrus. The Board held that an ordinary consumer would find the mark descriptive and affirmed the refusal to register.

The case is Nos. 2021-1961; 2021-2116.

Attorneys: Jessie A. Maihos for the USPTO. Nathan Brown (Brown Patent Law, PLLC) for Walrus Rodeo LLC.

Companies: Walrus Rodeo LLC

Cases: Trademark USPTO