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ARTICLE · 13 JANUARY 2023

In 2022, How Often Did The TTAB Affirm Section 2(e)(1) Mere Descriptiveness/Disclaimer Refusals?

Wolf Greenfield & Sacks
Wolf Greenfield & Sacks
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In 2022, by my reckoning, the Board issued final decisions in 51 appeals from Section 2(e)(1) mere descriptiveness refusals or from disclaimer requirements based on descriptiveness.

United StatesIntellectual Property
John L. Welch
John L. Welch
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In 2022, by my reckoning, the Board issued final decisions in 51 appeals from Section 2(e)(1) mere descriptiveness refusals or from disclaimer requirements based on descriptiveness. The Board affirmed 45 of the refusals and reversed 6 refusals. That's an affirmance rate of about 88.2%.

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One of the affirmances was deemed precedential: namely, the SMART BEZEL case [TTABlogged  here], in which the Board found the proposed mark to be merely descriptive of "electronic sensor modules for controlling and integrating home automation systems, lighting systems, and smart heating systems" [SMART disclaimed].

One of the reversals was labeled precedential: namely, the Lego case [TTABlogged  here], in which the Board overturned a requirement that Lego disclaim the word KID in both Latin and non-Latin characters, in the two marks shown below for various goods and services primarily aimed at children. The Board found each mark to be unitary, and therefore disclaimers were

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