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ARTICLE · 05 DECEMBER 2006

A Rose (Or Grass) By Any Other Name...

McDermott Will & Emery
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The U. S. Court of Appeals for the Federal Circuit, in affirming the Trademark Trial and Appeal Board's (the Board) refusal to register the mark "Rebel" for grass seed, agreed that the mark is a generic designation for such seed.

United StatesIntellectual Property
Paul Devinsky
Paul Devinsky
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The U. S. Court of Appeals for the Federal Circuit, in affirming the Trademark Trial and Appeal Board's (the Board) refusal to register the mark "Rebel" for grass seed, agreed that the mark is a generic designation for such seed. In re Pennington Seed, Inc., Case No. 06-1133 (Fed. Cir., Oct. 19, 2006) (Judge Lourie).

Pennington had previously designated the term "Rebel" as the varietal name for a grass seed that was the subject of a plant variety protection (PVP) certificate. The trademark examining attorney refused registration of the applied-for mark on the ground that it was a varietal name for a type of grass seed, and thus was the seed's generic designation. The Board affirmed, finding that the evidence conclusively established that the term "Rebel" is a varietal name for a type of grass seed and concluding that the U.S. Patent and Trademark Office's (USPTO) long-standing precedent and policy of treating varietal names as generic was still valid.

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