The USPTO refused registration of the mark RANGE FARMS under Section 2(e)(1), finding it to be merely descriptive of poultry. According to the Examining Attorney, the mark consists of two words that describe where the poultry comes from (a range and a farm). How do you think this came out? In re Lamex Foods Inc., Serial No. 86467416 (December 14, 2016) [not precedential].

The evidence established that each of the constituent words is descriptive of poultry. Website excerpts use of the terms “range chicken” and “range poultry.” But there was no evidence of use of the term “range farms” in connection with poultry or any other agricultural product or enterprise. Applicant conducted a Google brand search for “range farms” and the only references retrieved were for “free-range farms.”

When two merely descriptive words are combined in a mark, the Section 2(e)(1) question is whether the combination evokes a non-descriptive commercial impression. “If each component retains its merely descriptive significance in relation to the goods, the combination results in a composite that is itself merely descriptive.” If the combination creates a unitary mark with a non-descriptive meaning, or if it has an incongruous meaning vis-a-vis the goods, then it is registrable. “[I]ncongruity is one of the accepted guideposts in the evolved set of legal principles for discriminating the suggestive from the descriptive mark.”

The Board found that the idea of a “range farm” is “an incongruous or strange way to identify a place for breeding poultry in that the terms ‘Range’ and ‘Farms’ can be used interchangeably.” “Range farms” has no recognized meaning in connection with poultry and it does not immediately “evoke an impression and understanding of where poultry is produced.”

Because the word “Range” modifies the word “Farms” in the applied-for mark, the compound term RANGE FARMS suggests that poultry is produced on a large area of open farm land. This suggestion requires purchasers to use some imagination and reasoning.

The Board noted that competitors are free to use the descriptive words “range” and “farms”, or variations like “range chickens” of “free-range chicken.” [How about “free chicken farm range”? – ed.]

At the very least, the Board had doubts about the issue of mere descriptiveness, and such doubts are to be resolved in favor of applicant.

And so the Board reversed the refusal to register.