The USPTO refused to register the mark NUB GLOVE for “Bowling gloves and bowling balls” and for “Installation of custom bore inserts in bowling balls,” on the ground of mere desctrptiveness under Section 2(e)(1). Applicant argued that the mark is incongruous, since gloves are designed to cover one’s hands, but “the protruding nubs on Applicant’s bowling gloves will not be covered by the bowling gloves as a hand would be.” Did Kwiatkowski throw a strike or a gutterball? In re Robert Kwiatkowski, Serial No. 88367537 (Septeimber 17, 2020) [not precedential] (Opinion by Judge Frances S. Wolfson).
Kwiatkowski got off on the wrong foot when he provided an evasive answer to Examining Attorney Wendell S. Phillips III’s requet for information under Rule 2.61: “Do (or will) any of applicant’s goods feature “nubs” as that term is defined in the attached evidence, or any other similar bumps or textured surface? If so, please indicate which goods have this feature and explain the nature and purpose of these nubs.” Kwiatkowski answered “no,” but that answer was contradicted by the evidence and by his own admission that his gloves “will include a protruding nub that can be received by a bore of a bowling ball.” That evasive answer allowed the Board to draw an adverse evidentiary inference against Kwiatkowski, and further served as a basis in and of itself to affirm the refusal to register.
As to mere descriptiveness, Kwiatkowski asserted that, at the bowling alley, “nubs” refer to inward projections on an insert in a bowling ball hole that grasp the finger (see picture below), not to nubs extending outwardly from a sleeve put on a finger. But that statement was belied by his own admission, and ran counter to the Board’s inference.
As to Kwiatkowski’s hole-boring services, the word “NUB” describes “a function or purpose of the services, namely that Applicant installs custom bore inserts and drills holes in bowling balls to make them compatible with gloves that feature nubs.” The word “GLOVE” is “generic for bowling gloves, and merely descriptive for bowling balls adapted for use with bowling gloves and the related services of making or adapting bowling balls to accommodate Applicant’s gloves.” The Board brushed off Kwiatkowski’s incongruity argument, observing that consumers are not likely to consider that NUB GLOVE reverse to nubs on the inside of a bowling glove. Nor is any multi-step reasoning process required to discern the meaning of “nubs” in relation to the involved goods and services.
The Board concluded that NUB GLOVE is merely descriptive of Kwiatkowski’s goods and services, and it therefore affirmed the Section 2(e)(1) refusal.
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TTABlogger comment: The dude did not abide. WYHA? Maybe on the services portion of the refusal, but then the Rule 2.61 issue was fatal anyway.
Text Copyright John L. Welch 2020.