Musical Tushies Means Something More Than You Think
In Brief: “Tushies” is not a descriptive trademark for greeting cards.
Here’s What Happened: JHR Entertainment LLC filed an intent to use application for the trademark “Musical Tushies”. The trademark was going to be used for musical greeting cards that included images of the posteriors of humans and animals. JHR disclaimed the word “Musical” because it was descriptive of a feature of the cards. The Examining Attorney refused registration arguing that “Tushies” is descriptive of a feature of the goods.
JHR filed a request for reconsideration and an appeal to the Trademark Trial and Appeal Board (TTAB). The request for reconsideration was denied. But[t], JHR had better luck before the TTAB.
The record before the TTAB included dictionary definitions for “musical”, “tushy” and “tushies”. The parties also submitted webpages showing paper or electronic musical greeting cards that show human or animal derrieres.
In reversing the Examining Attorney, the TTAB engaged in a thorough discussion of the word “Tushies” and found that it wasn’t descriptive of greeting cards; even if those cards featured, well, tushies. A descriptive trademark conveys, with some degree of particularity, a feature, quality or characteristic of the goods and services. However, a mark that suggests a feature of the goods isn’t descriptive. The TTAB found the question of whether “Tushies” is merely descriptive of greeting cards a difficult question. The TTAB delved further into how the general public perceived the word “tushies” to see if it was merely descriptive as used in the mark. The TTAB looked on the Internet and found numerous greeting cards that featured rumps (3 of which are reproduced here). While there are websites that use the word “Tush” for greeting cards, the TTAB found none that used the plural “Tushies”. In the end, the TTAB concluded that word “Tushies” might describe a body part on a greeting card. But[t] it doesn’t describe a genus of greeting cards. So taking the mark as a whole, “Musical Tushies” creates a commercial impression that is greater than the sum of its parts.
The TTAB also stated that it really doesn’t know what a musical tushy is exactly. I’m sure we all have a notion of what that would mean.
WHY YOU SHOULD KNOW THIS: Using descriptive terms in a trademark is always a crap shoot. A term that suggests rather than describes the goods and services is better. But there is no bright line between descriptive and suggestive marks. The bottom of the matter is that while “tushies” might describe a graphic on a greeting card, tushies doesn’t describe greeting cards.