In In re Jeffrey Butscher, Serial No. 87572095, the Trademark Trial and Appeal Board (TTAB) reversed the Examiner’s refusal to permit the trademark registration of the mark CANNABIS CANNIBALS for “entertainment services, namely, an ongoing series featuring animated cannabis smoking cannibals provided through network or cable TV and the internet.” According to the Applicant’s IMDb page, “Cannabis Cannibals stories the irreverent and comedic life of two weed smoking cannibals, who move to America in pursuit of becoming Reality TV Stars, while at the same time battling their unique eating disorder.”
The Examiner asserted that the CANNABIS CANNIBALS mark merely describes the subject matter of the entertainment series, (i.e., cannabis smoking cannibals). The Applicant admitted that the series features animated cannabis smoking cannibals. However, the Applicant argued that the mark is suggestive, not descriptive, because viewers must use their imagination to understand the content and genre of the show.
The TTAB applied the test for descriptiveness: whether a mark “immediately conveys knowledge of a quality, feature, function, or characteristics of the goods or services with which it is used.” If a mark is deemed to be descriptive, the TTAB determines whether the descriptive mark has acquired distinctiveness, thereby overcoming this basis of refusal. Descriptiveness is determined in relation to the particular goods or services, the context in which it is being used, and the possible significance that the term has to an average consumer. The TTAB further clarified that competitor use or need is not part of this inquiry.
For a suggestive mark, the test is whether “one must exercise mature thought or follow a multi-stage reasoning process in order to determine what product or service characteristics the term indicates.”
In applying these tests, the TTAB determined that CANNABIS CANNIBALS is not merely descriptive, because the “primary significance of CANNABIS CANNIBALS to a prospective viewer indicates an ongoing entertainment series and the fanciful animated fictional, principal characters of the series.” The TTAB further found that a descriptiveness finding in this case would “lead to an inequitable result that this Applicant, as well as countless other applicants in the creative industries, could not register their marks because the marks identify their characters or the subject matter of the televisions shows.”
As an example, the TTAB cited registrations for the marks MORK & MINDY, THE LITTLE ENGINE, SUPERMAN, BATMAN, JOKER, and ROAD RUNNER as marks that identified fictional characters, yet still functioned as protectable trademarks. The TTAB noted that other decisions where character marks were held to be merely descriptive were distinguishable because those marks were for historical figures or fictional public domain characters, such as MARTHA WASHINGTON or THE LITTLE MERMAID, where consumers do not typically associate a commercial entity as the source for these marks.
The TTAB also found that the alliteration in the double use of the letter “C” further adds to the suggestive character of the mark.
This decision is also notable because the TTAB rarely reverses an Examiner’s descriptiveness refusal. In fact, about 90% of the time, the TTAB affirms the Examiner.