'COPPER 88' Merely Descriptive Of Clothing Made Of Fabric Containing Copper, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register the mark COPPER 88, in standard character form, finding it to be merely descriptive of "clothing made of fabric containing copper, namely, athletic sleeves, sweatshirts, pants, scarves, scrubs not for medical purposes, shorts, socks, T-shirts and underwear, shoes, gloves, hats." Applicant argued that there is no "variety of copper or copper composition referred to as COPPER 88," that the term has no meaning in the industry, and that COPPER 88 "is suggestive of a feature of the product and requires 'mental steps' to determine 'the actual technical feature' that removes it from descriptiveness." Cu later, said the Board. In re GCool-Tech USA LLC, Serial No. 87433779 (July 30, 2018) [not precedential] (Opinion by Judge Cheryl S. Goodman).

Examining Attorney Patrick Shanahan pointed to applicant's own website, where applicant described its goods as "[c]onsisting of 88% embedded copper nylon and 12% spandex." Applicant's Canadian website said the same thing, only in Canadian English.

Applicant argued that no competitor uses the term "copper" combined with any numbers to describe any technical feature of its products, nor do they need to use "copper 88," but the Board pointed out the irrelevancy of that argument: the USPTO is not required to prove "use" or "need" by others, and even if applicant is the first and only user of COPPER 88, that does not justify registration of a merely descriptive term.

Applicant contended...