Examining Attorney Lourdes Ayala relied on dictionary definitions of the constituent words, third-party registrations disclaiming “fidget,” and Internet product reviews, online retailer advertisements, and online articles referring to “fidget cubes.”
Applicant argued that it was the first to use the term “fidget cube,” but that, of course, does not immunize the term from genericness. “The law does not permit ‘anyone to obtain a complete monopoly on use of a descriptive [or generic] simply by grabbing it first.’” Applicant, according to the Board, “had the obligation . . . to educate the public promptly to use some name other than the term it wants to call its mark.”
Similarly, applicant’s argument that “fidget cube” is not in the dictionary, and that the PTO’s evidence was suspect because the Examining Attorney relied on the less popular BING search engine rather than GOOGLE. Applicant also pooh-poohed the citation of blog entries, since there was “no evidence that consumers even read blogs.” [Ouch! – ed.]. The Board was unimpressed. “[W]e are unaware … any precedential decision that articulates a blanket prohibition on evidence taken from Internet forums or blogs.” [Right on! – ed.].
Several of the articles attributed to applicant the creation of a new type of stress-relieving toy, but those articles “did not demonstrate trademark or brand usage of the designation FIDGET CUBE with Applicant’s identified goods.” They simply state that applicant “was the creator or inventor of the original version of the product known as fidget cube.”
[T]he record demonstrates extensive third-party use of the designation FIDGET CUBE as the generic name of a particular type of stress-relieving toy after Applicant began using such designation in commerce. Moreover, while Applicant argues that its policing efforts have caused third parties to cease use of the designation FIDGET CUBE, the record indicates otherwise.
Applicant argued that there are other names for the product – fidget dice, infinity cube, fidget box, stress cube, stress block, and dodecahedron – and therefore competitors have no need to use the term FIDGET CUBE to describe their products. Irrelevant, said the Board: there can be more than one generic term for a particular genus of goods or services.
Likewise irrelevant was an arbitration decision by WIPO in a doman name dispute, in which the sole panel member found that applicant had common law rights in FIDGET CUBE. The Board observed that courts have found that a WIPO decision “has no collateral estoppel or res judicata effect and is entitled to no deference from the court.”
And so the Board affirmed the refusal to register under sections 23(c) and 45 of the Trademark Act.
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TTABlog comment: A well-written and convincing decision.
Text Copyright John L. Welch 2020.