In a 75-page opinion, the Board affirmed a refusal to register the proposed mark SMART KEYBOARD on the
Since Apple sought registration on the
The Genus: Examining Attorney
Applicant, here, appears to have purposely "structured" its identification of goods in a manner that deemphasizes the core function of its goods in order to avoid a likely finding of genericness. However, we need not turn a blind eye to the reality of what is offered by Applicant's description of goods as shown by the evidence, including Applicant's own evidence.
The Relevant Public's Understanding: The Board agreed with the Examining Attorney that the relevant public comprises ordinary consumers who purchase applicant's goods. The evidence of record included dictionary definitions, third-party Internet webpages and publications in the nature of articles, reviews, and retail promotions, and a variety of patents and patent applications. The Board concluded that Apple's particular keyboard (and its feature of being foldable into a stand and cover) "is but one of many technologically advanced keyboards that may be described as a smart keyboard."
Applicant challenged the USPTO's evidence on various grounds and provided a substantial amount of evidence in support of its argument that "the public recognizes SMART KEYBOARD as its trademark for the identified goods." However, the Board
Applicant's response in this case to the Examining Attorney's evidentiary showing is fairly impressive, as was the applicant's in Merrill Lynch. However, unlike the record in Merrill Lynch, in this appeal, we have unrebutted and unexplained generic use of the term SMART KEYBOARD or other more specific wording (e.g, smart wireless keyboard), both before and subsequent to Applicant's adoption of that term as its trademark, by no less than ten other companies (e.g., Always Innovating, Das, OneBoard,
And so the Board affirmed the refusal to register.
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TTABlogger comment: A thorough opinion, but I suspect this will be appealed.
The TTABlog
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