TTAB Continues to Rule on Genericness

This article explores the Trademark Trial and Appeal Board's (TTAB) issuance of a second precedential decision involving genericness this year in In re Hikari Sales, USA. Hikari filed a trade mark application to register the mark ALGAE WAFERS covering fish food. When the USPTO examiner refused to register the mark on the grounds that the term was generic, Hikari appealed the refusal to the TTAB. The TTAB investigated the use of the term Algae Wafers by Hikari, competitors and the media, among other channels, in affirming the refusal to register. The case serves as a cautionary tale to brand owners when it comes to using a trademark which provides an understandable message to consumers about an attribute of a product or service. It also serves as a reminder to consider whether, or to what extent, a term is descriptive when assessing the risks of adopting a term as a trademark.

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