It’s Even Less Easy Being Green post-Calera

In In re Calera Corporation, Serial No. 77409087 (non-precedential) (March 24, 2010)  (access the full opinion here), the Trademark Trial and Appeal Board (“TTAB”)  affirmed the United States Patent and Trademark Office (“USPTO”) Examiner’s refusal of the mark:

Mark Image

in connection with

Non-metallic construction materials, namely mineral-based cementitious materials in the nature of portland, hydraulic, white, masonry, plastic, stucco, and oil well cement, other mineral-based cementitious materials; supplementary cementitious materials, namely pozzolanic materials, blast furnace slag, coal clinker and fly ash; non-metallic construction materials, namely cement mixes and patches, concrete, mortar, stone, aggregate, sand, non-metallic mosaic, non-metallic floor and roofing tiles, non-agricultural lime, non-rubber plaster, gypsum, gravel, brick; asphalt; building materials made from concrete, namely, blocks, bricks, stones, walls, conduits, ducts, pavers, posts, pedestals for use as a building material, beams, partitions for use as walls, barriers of concrete for use as a building material, pipes, panels, architectural columns, monuments, concrete containers for holding a liquid, concrete street curbs, concrete fences, concrete beams, and concrete planks

The Examiner refused registration under Section 2(e)(1) of the Lanham Act, on the ground that the mark was merely descriptive of the goods because:

[applicant’s] goods are . . . specifically made in a way that is more environmentally friendly than normal . . . [a]s such, the mark as a whole is clearly descriptive of the applicant’s goods-namely environmentally friendly cement.

The Applicant appealed. On appeal, the TTAB affirmed the Examiner, citing the Applicant’s admission that its goods are “. . . produced using processes that emit low level carbon dioxide by-products as compared to standard processes” and “. . . will be made in a way that reduces their carbon footprint.” Further, the TTAB relied on: 1) a on-line dictionary definition of “green” as  “environmentally sound or beneficial”; 2) web pages that demonstrated the phrase “green cement” being used to descriptively describe cement possessing some sort of eco-friendly qualities; 3) third-party registrations where the term GREEN was disclaimed as merely descriptive as applied to eco-friendly products.  The TTAB went on to state:

The term GREEN indicates that the product is environmentally beneficial. There simply can be no dispute that the term green, ubiquitously used an adjective with any good or service, will be perceived as an indicator that the good or service is environmentally friendly. . . Nothing is left to the imagination that the term GREEN CEMENT is referring to environmentally-beneficial cement.

Analysis: This outcome is consistent with the restrictive trend with respect to green marks that has been developing in the TTAB since last year (In re Bargoose Home Textiles, Inc. (March 27, 2009) (non-precedential) (ALLERGYGREEN merely descriptive for hypoallergenic and environmentally friendly bedding) and In re Cenovo Corp.) (GREEN-KEY and Design used on environmentally-friendly key-cards refused registration as generic). But, why is GREEN CEMENT only descriptive while GREEN-KEY is generic?  How will the definition of the term “GREEN” applied to potentially generic/descriptive marks be affected by the upcoming revisions to the Federal Trade Commission’s Green Guides?


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