In a decision that is not citable, the TTAB upheld the examining attorney’s refusal to register Midwest Bus Company’s mark BYK-RAK for vehicle bicycle racks, on the grounds that the term was generic.

Although the applicant argued that the term was not merely a misspelling, but rather a “creative and distinguishing makeup of words”, the Board found the argument so much back-peddling. The Board first noted that a term is generic if it identifies the class of goods or services to which it applies. In applying the test for genericness, namely, whether the relevant public sees the term as defining a class of goods, the Board determined that consumers would identify the term BYK-RAK to mean that class of goods that holds bicycles to cars. Accordingly, the mark, despite its creative spelling, was generic.

Longstanding case law is clear that a slight misspelling of a word doesn’t turn an otherwise descriptive or generic term into a protectible mark. For a detailed discussion of the issues related to generic terms and misspellings See, In re Hubbard Milling Company 6 USPQ 2d 1239 (TTAB 1987), in which the board held that MINERAL LYX was generic for “mineral licks” for livestock.

This entry was posted by Tsan Abrahamson on Tuesday, April 18th, 2006 at 8:38 pm and is filed under Trademarks. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.