ZEROing In On Genericness: Federal Circuit Vacates Decision Finding ZERO Registrable

In Short

The Decision: The Federal Circuit vacated the Trademark Trial and Appeal Board's determination that "ZERO" is not generic and has acquired distinctiveness, and remanded.

The Reasoning: The Board erroneously framed the standard for genericness and failed to evaluate the degree of descriptiveness of "ZERO" when assessing acquired distinctiveness.

The Implications: Marks can be refused registration on the basis of genericness if they are considered generic for a subset of the goods on which they are used. Additionally, the Trademark Office applies a sliding scale in determining the amount of evidence necessary to establish acquired distinctiveness based on the mark's descriptiveness.