Applicant appealed a final refusal to register the mark BANANA CHAIR for a chair on the ground that it was merely descriptive. Based on the record, the TTAB found that the term “banana chair” was not the common commercial name for a particular type of chair. Further, although the TTAB acknowledged that the chair had a curved shape that could suggest the curve of a banana, it found that the BANANA CHAIR mark did not immediately and directly describe the shape of the chair, and reversed the refusal to register on the ground of mere descriptiveness.
Future First LLC (“Applicant”) filed an application for the mark BANANA CHAIR for “furniture, chair,” in Class 20. The Examining Attorney refused registration under Section 2(e)(1) of the Lanham Act on the ground that Applicant’s BANANA CHAIR mark was merely descriptive. Applicant appealed the decision to the TTAB.
Applicant’s owner invented a legless rocking chair with a curved bottom, which he began marketing in 1974 under the mark BANANA CHAIR. The chair was designed for lounging, watching television, and playing video games. The chair was inexpensive ($19 to $59 at retail) and was often marketed along with casual furniture such as bean bag chairs.
In refusing registration, the Examining Attorney contended that the term “banana chair” was the common commercial name for a curved, legless rocking chair. Specifically, the Examining Attorney argued that Applicant’s chair was similar to the shape of a banana fruit, and that chairs in an identical or similar shape and size to Applicant’s chairs had become known as “banana chairs.” The Examining Attorney further asserted that although the evidence of record showed that this type of chair varied in style and size, all of the chairs featured a basic set of similarities that would allow consumers to recognize a highly similar “banana” shape. In support of his position, the Examining Attorney submitted evidence in which the term “banana chair” was used for furniture that appeared similar to Applicant’s chairs. He also submitted hits from an Internet search where the term was used online in nonretail settings, such as chat rooms, on Craigslist and eBay, and in forums and blogs.
The TTAB concluded that the Examining Attorney’s evidence was of little probative value. The TTAB explained that it had no way of knowing whether some or even many of the online excerpts were in fact references to Applicant’s goods. The TTAB further noted that most of the products in the excerpts were connected to the Pacific Coast and Intermountain West region of the United States, which was the part of the country where most of Applicant’s goods had been marketed. In addition, the TTAB explained that the fact that an individual posting a comment on a blog or other online forum may use a term without proper capitalization was not necessarily evidence that he or she believed the term was a common commercial name, or that the readers of the posting viewed the term as a common commercial name. Also, given that Internet search engines could retrieve many uses of almost any term, the TTAB refused to find that the term “banana chair” was clearly the name of a type of chair on the basis of the isolated uses of “banana chair” as a common commercial name by individuals on blogs or public access sites such as Craigslist. Accordingly, the TTAB found that the Examining Attorney had not met his burden of showing that the term “banana chair” was the common commercial name for a particular type of chair.
The TTAB also considered the Examining Attorney’s argument that the BANANA CHAIR mark was merely descriptive because it described the shape of the chair. The TTAB rejected this argument, finding that although the chair had a curved shape that could suggest the curve of a banana, the chair did not in fact look like a banana, and the term “banana chair” did not immediately and directly describe its shape. Accordingly, the TTAB found that the BANANA CHAIR mark was not merely descriptive.
Without more, evidence of de minimis use of a term as a common commercial name of a product by consumers on blogs or public access sites is not sufficient to bar registration of that term on the ground it is merely descriptive under Section 2(e)(1).