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Double Entendre Without Reference to Other Indicia

Posted by James Juo | Nov 30, 2022 | 0 Comments

For trademark purposes, a “double entendre” is an expression that has a double connotation or significance as applied to the mark's goods or services, such that it is not merely descriptive. E.g., In re The Place Inc., 76 USPQ2d 1467, 1470 (TTAB 2005) (defining a “double entendre” as an “ambiguity of meaning arising from language that lends itself to more than one interpretation”); In re Tea and Sympathy, Inc., 88 USPQ2d 1062 (TTAB 2008) (holding THE FARMACY was not merely descriptive of applicant's herbs and organic products used for medicinal purposes); In re Del. Punch Co., 186 USPQ 63 (TTAB 1975) (holding THE SOFT PUNCH for noncarbonated soft drink was not merely descriptive because it projects a double entendre of a non-alcoholic drink as well as having a pleasing hit or soft impact).

A trademark that comprises a “double entendre” will not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the goods or services. TMEP § 1213.05(c).

A double entendre has multiple meanings or associations that the public would make fairly readily and is readily apparent from the mark itself in relation to the goods or services. In re Calphalon Corp., 122 USPQ2d 1153, 1162 (TTAB 2017) (“The multiple interpretations that mark an expression a ‘double entendre' must be associations that the public would make fairly readily, and must be readily apparent from the mark itself.”).

In determining whether a trademark is a double entendre, the meanings or associations that the public would make fairly readily with respect to the mark are ascertained without reference to other indicia. See, e.g., In re The Place, 76 USPQ2d at 1470 (indicia that is not part of the mark cannot be considered in determining whether the mark is a double entendre); cf. In re Wells Fargo, 231 USPQ 95, 100 (TTAB 1986) (noting that other indicia “cannot be considered in our determination whether its registration would be contrary to the provisions of Section 2(e)(1)”).

If doubt exists as to whether a term is merely descriptive, such doubts should be resolved in favor of the applicant. See In re Grand Metropolitan Foodservice Inc., 30 USPQ 2d 1974, 1976 (TTAB 1994) (“any doubt with respect to the issue of descriptiveness should be resolved in applicant's behalf”); In re Atavio, 25 USPQ2d 1361, 1362 (TTAB 1992); In re Gourmet Bakers Inc., 173 USPQ 565 (TTAB 1972); cf. In re, 415 F.3d 1293, 1299, 75 USPQ2d 1420, 1423 (Fed. Cir. 2005) (noting the STEELBUILDING.COM mark could refer to the sale of “steel buildings,” as well as to “building” or designing “steel” structures).

The attorneys at Thomas P. Howard, LLC litigate trademark cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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