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Businesses thinking of including "face" in their name might want to reconsider. Facebook this week was granted a notice of allowance to trademark the word "face."
Applicant must disclaim the descriptive wording “INC” apart from the mark as shown because it merely describes the entity type of the applicant. Trademark Act Section 6, 15 U.S.C. §1056; TMEP §§1213 and 1213.03(a).
Business entity designations such as “Corporation,” “Inc.,” “Company,” and “Ltd.” must be disclaimed because they merely indicate applicant’s entity type and generally do not function to indicate the source of goods or services. TMEP §1213.03(d); see, e.g., Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602-03 (1888); In re Patent & Trademark Servs., Inc., 49 USPQ2d 1537, 1539-40 (TTAB 1998); In re The Paint Prods. Co., 8 USPQ2d 1863, 1866 (TTAB 1988).
A mark is merely descriptive under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1), if it describes an ingredient, quality, characteristic, function, feature, purpose or use of the relevant goods and/or services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986); In re MetPath Inc., 223 USPQ 88 (TTAB 1984); In re Bright‑Crest, Ltd., 204 USPQ 591 (TTAB 1979); TMEP §1209.01(b).
A mark that describes an intended user of a product or service is also merely descriptive within the meaning of Section 2(e)(1). Hunter Publishing Co. v. Caulfield Publishing Ltd., 1 USPQ2d 1996 (TTAB 1986); In re Camel Mfg. Co., Inc., 222 USPQ 1031 (TTAB 1984); In re Gentex Corp., 151 USPQ 435 (TTAB 1966).
The Office can require an applicant to disclaim exclusive rights to an unregistrable part of a mark, rather than refuse registration of the entire mark. Trademark Act Section 6(a), 15 U.S.C. §1056(a). Under Trademark Act Section 2(e), 15 U.S.C. §1052(e), the Office can refuse registration of the entire mark where it is determined that the entire mark is merely descriptive, deceptively misdescriptive, or primarily geographically descriptive of the goods. Thus, the Office may require the disclaimer of a portion of a mark which, when used in connection with the goods or services, is merely descriptive, deceptively misdescriptive, primarily geographically descriptive, or otherwise unregistrable (e.g., generic). TMEP §1213.03(a).
If an applicant does not comply with a disclaimer requirement, the Office may refuse registration of the entire mark. TMEP §1213.01(b).
A “disclaimer” is thus a written statement that an applicant adds to the application record that states that applicant does not have exclusive rights, separate and apart from the entire mark, to particular wording and/or to a design aspect.
The appearance of the applied-for mark does not change.
A disclaimer does not physically remove the disclaimed matter from the mark, but rather is a written statement that applicant does not claim exclusive rights to the disclaimed wording and/or design separate and apart from the mark as shown in the drawing.
The computerized printing format for the Office’s Trademark Official Gazette requires a standardized format for a disclaimer. TMEP §1213.08(a)(i). The following is the standard format used by the Office: No claim is made to the exclusive right to use “INC” apart from the mark as shown. See In re Owatonna Tool Co., 231 USPQ 493 (Comm’r Pats. 1983).