A generic term is “the name of a class of products or services” and “is ineligible for federal trademark registration.” U.S. Patent & Trademark Office v. Booking.com B.V., 591 U.S. ___, 2020 USPQ2d 10729, at *2-3 (2020) (“Booking.com”). Whether a term is generic depends on its meaning to consumers. “[A]ll evidence bearing on public perception must be given appropriate consideration.” In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1958 (TTAB 2018).

The genericness inquiry in a case involving a generic term and a top-level domain such as .com is unique because “only one entity can occupy a particular Internet domain name at a time,” and therefore, a proposed mark consisting of “generic.com” might be capable of “convey[ing] to consumers a source-identifying characteristic: an association with a particular website.” Booking.com, 2020 USPQ2d 10729, at *6.

RESERVATIONS.COM

In an appeal of a refusal to register the RESERVATIONS.COM mark, the TTAB noted that evidence that numerous third-party competitors use the term “reservation” generically to identify travel reservation services for hotel and auto transportation, or use domain names incorporating “reservation” in connection with such services, may be probative of genericness. In re Benjamin & Brothers, LLC d/b/a Reservations.com, Ser. Nos. 88396223 (TTAB Sept. 26, 2023) (considering a Teflon survey by First Survey).

            Although the flaws in the First Survey diminish its probative value, it is not devoid of significance. We consider the results of the First Survey to the extent they provide some corroboration for the consumer reviews suggesting that the proposed mark may be capable of serving to identify the source of Applicant's services.

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Here, the consumer reviews ultimately reflect consumer understanding of RESERVATIONS.COM as identifying a particular website, as opposed to a class of travel reservation websites. The First Survey corroborates the consumer reviews and as such has some value despite its numerous flaws. Applicant's own use of the term further supports a finding that consumers may perceive RESERVATIONS.COM as a source-identifier.

Accordingly, the TTAB found that consumers may perceive RESERVATIONS.COM as a source-identifier which overcame a prima facie case of genericness.

Finding RESERVATIONS.COM to be highly descriptive, however, the TTAB held that the survey and consumer reviews “fall short of supporting a conclusion that RESERVATIONS.COM has achieved such recognition among consumers, particularly as many consumers initially mistakenly believed the proposed mark referred generically to a reservation page for specific hotel websites.”

            Applicant's proposed mark is highly descriptive of Applicant's services and the record does not support Applicant's assertion that its use of RESERVATIONS.COM has been “substantially exclusive.” Under these circumstances, Applicant's use of RESERVATIONS.COM since 2014 is far from sufficient to demonstrate acquired distinctiveness. The survey evidence and consumer reviews do not support a finding that the proposed mark has acquired distinctiveness as a source identifier. In addition, Applicant's figures regarding advertising, sales, reservations, and webpage views do not appear to be limited to the U.S., and we are lacking important information regarding Applicant's U.S. market share and U.S. consumer exposure to Applicant's advertising as well as examples of how the proposed mark is used in advertising, on the Bing and Yahoo search engines in particular.

Thus, the TTAB reversed the USPTO's refusal for genericness, but affirmed that RESERVATIONS.COM was merely descriptive and lacked acquired distinctiveness; and allowed the mark to proceed on the Supplemental Register.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.