Blind Lifter Productions, LLC

Trademark Trial and Appeal Board

Jun 25, 2018

No. 86595714 (T.T.A.B. Jun. 25, 2018)

Mailed: June 25, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Blind Lifter Productions, LLC
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Serial No. 86595714
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Norman J. Hedges,
for Blind Lifter Productions, LLC.
Andrea Koyner Nadelman, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
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Before Lykos, Hightower, and Coggins,
Administrative Trademark Judges.
Opinion by Hightower, Administrative Trademark Judge:
Applicant Blind Lifter Productions, LLC seeks registration on the Principal
Register of BLIND LIFTER, in standard characters, for the following services in
International Class 41 (as amended):
Educational and entertainment services, namely, providing
motivational speaking services in the fields of personal
improvement and physical fitness; conducting educational
programs featuring personal improvement and physical
fitness; presenting seminars, lectures, workshops and panel
discussions, and ongoing television shows all in the field of
personal improvement and physical fitness; entertainment
This Opinion Is Not a
Precedent of the TTAB
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services, namely, providing information by means of a global
computer network in the fields of physical fitness.1
Registration has been refused as to these services under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that BLIND LIFTER is merely
descriptive of them. After the refusal was made final, Applicant requested
reconsideration, which was denied. This appeal followed.
We affirm the refusal to register.
I. Applicable Law
In the absence of acquired distinctiveness, Section 2(e)(1) of the Trademark Act
precludes registration of a mark on the Principal Register that, when used in
connection with the applicant’s services, is merely descriptive of them. “‘A term is
merely descriptive if it immediately conveys knowledge of a quality, feature, function,
or characteristic of the goods or services with which it is used.’” In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)
(quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007)). Whether a mark is merely descriptive is determined in relation to
the goods or services for which registration is sought, the context in which the mark
is used, and the possible significance the term would have to the average consumer
because of the manner of its use or intended use. Chamber of Commerce, 102 USPQ2d
at 1219.

1 Application Serial No. 86595714 was filed on April 13, 2015 based on Applicant’s allegation
of a bona fide intention to use the mark in commerce pursuant to Trademark Act Section 1(b),
15 U.S.C. § 1051(b). The application also identifies goods in International Class 25 that are
not before us.
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It is well-established that a term that describes the source or provider of goods or
services also is merely descriptive of those goods or services. In re Major League
Umpires, 60 USPQ2d 1059, 1060 (TTAB 2001) (affirming refusal of MAJOR LEAGUE
UMPIRE as merely descriptive of clothing and baseball gear); see also Trademark
Manual of Examining Procedure (TMEP) § 1209.03(q) (October 2017).
II. Analysis
The record establishes that Applicant’s principal, Pat Leahy, is a visually
impaired weightlifter.2 Applicant does not dispute that BLIND LIFTER “readily
conveys information regarding a blind weight lifter.” Appeal Brief at 9, 7 TTABVUE
10. We find that BLIND and LIFTER both convey information about the source and
provider of Applicant’s identified services, and each term retains its descriptive
significance in combination. BLIND LIFTER, considered as a whole, thus forms a
composite that is itself merely descriptive. See, e.g., In re Omaha Nat’l Corp., 819 F.2d
1117, 2 USPQ2d 1859, 1860 (Fed. Cir. 1987) (affirming finding that wording
FIRST TIER is descriptive of banking services); Major League Umpires, 60 USPQ2d
at 1060. Underscoring the descriptive significance of the phrase, the record includes
two references to another “blind lifter,” Cody Colchado.3

2 See September 28, 2016 Subsequent Final Office Action at TSDR 2-13; March 17, 2016 Office
Action at TSDR 2-9.
3 April 18, 2017 Denial of Request for Reconsideration at TSDR 3; September 28, 2016
Subsequent Final Office Action at TSDR 26. The record also includes mentions of other “blind
lifters,” but these may be of limited probative value because they appear to be from news
media outside the United States.
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Applicant makes two arguments on appeal. First, Applicant contends that the
descriptiveness refusal pertains to Mr. Leahy’s persona rather than the identified
services. See Appeal Brief at 7, 7 TTABVUE 8. As discussed in Major League Umpires,
however, matter that describes the provider of the identified services need not
separately be merely descriptive of a different characteristic of the goods or services.
See id. at 1060-61.
Applicant’s second argument is that BLIND LIFTER is a double entendre, with
one meaning that is not merely descriptive:
The Applicant’s mark readily conveys at least two meanings:
(1) description of a blind weight lifter, and (2) “improving the
spiritual, social, or intellectual condition of” purchasers of
applicant’s services. Uplift, Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2014). The second meaning is clearly
demonstrated by applicant’s goal of inspiring people with
disabilities. Applicant’s mark also has a double significance
to the conveyed double meanings because the services are
conducted by a blind weight lifter and the goal of the
conducted services is to “improv[e] the spiritual, social, or
intellectual condition of” purchasers of applicant’s services.
Appeal brief at 8-9, 7 TTABVUE 9-10. Applicant further explains: “Because Applicant
is blind and both a weightlifter and provider of services meant to ‘lift’ others’ condition
in a spiritual, social, or intellectual way, BLIND LIFTER is a double entendre within
the single context of the applied-for services . . . .” Reply Brief at 5, 10 TTABVUE 6.
A double entendre is registrable only if the second, non-descriptive meaning would
be readily apparent to the consumer from the mark itself. See, e.g., In re Colonial
Stores Inc., 394 F.2d 549, 157 USPQ 382, 385 (CCPA 1968) (holding SUGAR & SPICE
not merely descriptive for bakery products); In re Tea & Sympathy, Inc., 88 USPQ2d
1062 (TTAB 2008) (holding THE FARMACY registrable for retail store services
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featuring natural herbs and organic products and related health and information
services). On this record, we find that consumers are unlikely to discern the second
asserted meaning of BLIND LIFTER in association with the identified services. See,
e.g., In re RiseSmart Inc., 104 USPQ2d 1931, 1934 (TTAB 2012) (“We do not find
TALENT ASSURANCE to present a double entendre such that the merely descriptive
significance of the term [TALENT] is lost in the mark as a whole.”) (quotation
omitted); In re Ethnic Home Lifestyles Corp., 70 USPQ2d 1156, 1158 (TTAB 2003)
(holding ETHNIC ACCENTS merely descriptive of “entertainment in the nature of
television programs in the field of home décor,” finding it unlikely that viewers of the
applicant’s programs would view the mark as a reference to foreign accents); In re
Wells Fargo & Co., 231 USPQ 95, 99 (TTAB 1986) (holding EXPRESSERVICE merely
descriptive for banking services, finding that the public would not make an
association with the Pony Express).
III. Conclusion
Based on the record in its entirety, we find that a consumer of Applicant’s services
would immediately understand BLIND LIFTER to convey information about the
provider of those services. Because the proposed mark, considered as a whole,
immediately conveys knowledge about the provider of Applicant’s services, it is
merely descriptive under Trademark Act Section 2(e)(1).
Decision: The refusal to register Applicant’s services in International Class 41 as
merely descriptive under Section 2(e)(1) of the Trademark Act is affirmed. The
application will proceed to publication only as to the goods in International Class 25
in due course.