TTAB Test: Is CRAWLER Merely Descriptive of SUV Suspension Parts?

The USPTO refused registration of the mark CRAWLER under Section 2(e)(1), finding it merely descriptive of "light truck and sport utility vehicle aftermarket suspension parts, namely, link arms and coil springs." Applicant stated that its goods may be used in off-road vehicles referred to as "Rock Crawlers." The evidence showed that "crawler" is a British term for a "slow-moving vehicle." How do you think this appeal came out? In re Fabtech Industries, Inc., Serial No. 86916673 (October 27, 2017) (Opinion by Judge Cheryl S. Goodman).

Applicant's Specimen of Use
The Examining Attorney maintained that consumers seeking automotive parts for rock crawling will understand the connection between CRAWLER and off-road crawling of all types. She asserted that the specimen of use shows that the goods raise the vehicle's center of gravity and turn the vehicle into a "crawler," a vehicle designed to move slowly in order to drive over rocks and rugged terrain.

The Board, however, found no evidence that "crawler" refers to full-size (as opposed to toy) trucks and SUVs with altered suspensions. The website evidence refers to "rock crawlers," not "crawlers," and to vehicle shocks, not link arms and coil springs. The definitions that the Examining Attorney relied on to conclude that "crawler" means a full-size vehicle used on rough terrain comprise "British English" and lack probative value.

The Examining Attorney urged consideration of the use of "crawler" in connection with scale radio-controlled vehicles referred to as "comp crawlers," "rock crawlers," or "R/C crawlers," which perform "the same function as a standard automotive rock crawler." The Board, however, was unimpressed, noting that a term that is descriptive of one type of goods is not necessarily descriptive of another type, even if the goods are closely related.

The Board concluded that the USPTO had failed to show that CRAWLER is merely descriptive of the identified goods, and so it reversed the refusal.

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TTABlog comment: I think the Board is slicing the baloney pretty thin here.

Text Copyright John L. Welch 2017.