Refusal of Registration of ASPIRINA Leaves Bayer with a Headache

In re Bayer, [06-1279](May 24, 2007)[MOORE, Newman, Schall) The Federal Circuit affirmed the TTAB's ruling that ASPIRINA was merely descriptive of analgesics.
BRIEF: Bayer applied to register ASPIRINA as a trademark, the Examiner refused registration on the ground that the mark was merely descriptive, and the TTAB affirmed. The Federal Circuit explained that a term is merely descriptive if it immediately conveys knowledge of a quality, feature, function or characteristic of the goods with which it is used. Descriptiveness is not considered in the abstract, "it is considered in relation to the particular goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of use or intended use." LOF: The determination that a mark is merely descriptive is a factual finding, which is reviewed for substantial evidence. Evidence of descriptiveness may be obtained from any competent source, such as dictionaries, newspapers, or surveys. "Aspirin" is generic, and the Federal Circuit agreed with the board that merely adding an "a" did not result in an inherently distinctive term. Bayer challenged the use of only definitions and translations as being unreliable. The Federal Circuit noted that "[i]nternet evidence is generally admissible and may be considered for purposes of evaluating a trademark" and found that such evidence indicated that ASPIRINA was descriptive. Bayer's challenge to Google search engine results, had a better reception: "Search engine results -- which provide little context to discern how a term is actually used on the web page that can be accessed through the search result link --
may be insufficient to determine the nature of the use of a term or the relevance of the search results to registration considerations, and noting that web-based information that includes greater context for the use o t ether term will have greater probative value. The Federal Circuit also dismissed evidence of foreign registrations on ASPIRINA as "not legally or factually relevant to potential consumer perception " in the United States. The Federal Circuit concluded by noting that there was conflicting evidence in the record, but concluded that under the deferential substantial evidence standard, the decision of the Board must be affirmed.