DuetsBlog

Collaborations in Creativity & the Law

Aggie-ravating Trademark Issues with College Mascots

Posted in Infringement

Colleges serve an important role in American society, providing education, experience and leadership to each new generation. Also, sports. And did I mention SPORTS? Regardless of the reason (cable?), college sports have become a huge business over the last 25 years, with NCAA schools having a reported annual value of $8 billion (without including revenue generated for private companies). That number may not be accurate, but given the number of Division 1 school football and basketball programs, price of tickets, number of games, broadcast rights, merchandise, etc., I don’t think that’s an exaggerated number. And with revenue like that, it isn’t surprising that universities rely on trademark law to protect their brands.

Earlier this week, Oklahoma State University (OSU) filed a lawsuit against New Mexico State University (NMSU) over NMSU’s renewed use of its retro cowboy logo. The two logos are shown side by side below:

Hard to argue that those aren’t similar. OSU claims use of its mascot all the way back to the 1920s. NMSU claims use of their logo back to 1960s. However in 2005, NMSU moved toward a more modern logo. However, NMSU’s recent decision to sell merchandise featuring the old logo apparently sparked the lawsuit. On its website, NMSU has a document chronicling the history of its logo in which it admits that it “initially” paid royalties to OSU for use of the logo. There is no explanation of when these royalties ceased.

Of course, fans of the University of Wyoming might be a bit confused too. As it turns out, Wyoming has a similar logo that it uses, shown below:

Apparently OSU also objected to Wyoming’s use, but they reached a concurrent use agreement in 1993.  Based on the reported terms of the agreement, OSU concluded that so long as the respective logos appear in each school’s respective colors and with some text located on the clothing, that the two schools could avoid any confusion (oh, and don’t forget the royalties…). The NMSU design is already in NMSU’s colors, so perhaps OSU is just taking a really expensive route to get NMSU to add some text to the design. Or it could be the royalties. I’ll let you decide.

The dispute highlights an interesting aspect of trademark law. Regardless of the type of products involved or the amount of money on each side, the question ultimately comes down to consumer perception and whether consumers are likely to be confused. Sports teams, especially college teams, frequently use identical names for their mascots and teams. For example, the name “cowboys” is used by both, you guessed it, OSU and Wyoming (Also, another football team that you may heard of down in Dallas…). As far as Aggies go, you’ve got NMSU, Delaware Valley College, North Carolina AT&T, Texas A&M, UC Davis, and Utah State. I don’t know all of them, but this Wikipedia article lists 76 different Eagles, 46 Tigers, 39 Bulldogs, and 33 Panthers. In short, consumers are accustomed to relying on indicia other than merely the name (and likely the logo) to determine the source or sponsorship of the goods, such as the colors, school name, acronyms, etc.

But if you’re looking for unique college mascots, you’ve got the Fighting Okra of Delta State University in Mississippi, the Geoducks of Evergreen State College (it’s a type of mollusk, apparently), the Scotsdale Community College  Fightin’ Artichokes, or the St. Louis University Billikens. You never hear about any trademark disputes over mollusks or artichokes, do you?

But back to our friendly cowboys. The lawsuit seems a bit surprising. After all, the parties apparently had a forty year agreement and working relationship. Or, if “initially” paying royalties only meant a few years (5, 10?), NMSU used the logo the remainder of the 40 years without objection by OSU. The agreement with Wyoming also weakens OSU’s claim, but probably not enough to preclude a successful claim. I’d be highly surprised if the dispute lasts very long, as it seems to be ripe for settlement. Even in the billion dollar industry of college athletics, settlement is often the most efficient means of settling trademark disputes, especially if you both have pistols.

 

How would a corporation run a country?

Posted in Advertising, Guest Bloggers, Mixed Bag of Nuts, Search Engines, Technology

- Aaron Keller, Managing Principal, Capsule

In a recent meeting, someone dropped a forecast on the table stating that Google was on track, in five years, to become the world’s first trillion dollar company (currently they are $382 B). This is built on a virtual monopoly in the area of online advertising and now growing into a variety of other technologies and platforms. But, most important this is a company build on advertising media.

What do I do with that bit of information? Why do I care? Why would anyone care if Google is getting larger and larger and larger. Is it a good thing? Is it bad? Sergey and Larry seem to be good guys.

Well, I don’t have answers to those questions, but I do have a thought to further the conversation.

When you elevate your perspective to see all the brands in the world, and the businesses where they reside, it changes your perspective. Brands as large as Google, Apple and a longer list of others are designed to serve stakeholders (customers, partners, investors, etc). This isn’t too dissimilar to a government entity. Here are some similarities between a corporation and a government.

>> Both serve diverse audiences and need to keep people happy, active, and safe from harm.

>> Both have incoming revenue (taxes) and outgoing expenses (services).

>> Both have a team that leads and some structure to organize the social hierarchy.

>> Both have a reputation to build and protect with all stakeholders

Now, the corporation may have a mission to conquer and a government may have a mission that closer resembles the need to protect and keep safe. And, governments provide services people don’t want to pay for, but need to in order to have social order. Corporations do this as well, but many at the discretion of the leadership team.

This all leads back to the headline.

What would happen if Apple or Google purchased a small country? Just to be clear, here’s a handful of countries Apple could buy with their profits of $37 billion: Trinidad and Tobago, Paraguay, Honduras, Jamaica, Albania, Iceland, Cyprus and many others all over the world.

How would Apple design a country? What would a Google country look like? Would these captains of industry be better at running a medium size country than many of the horrid dictators we see in the world today?

What do you think?

Lessons from Improv Class for the Law Firm

Posted in Mixed Bag of Nuts

This month, the greater downtown Minneapolis community is welcoming the Brave New Workshop Student Union to the neighborhood.  Until just a few weeks ago, the improvisational comedy school convened classes at the Brave New Workshop’s original home on Hennepin Avenue in the Uptown neighborhood.  The Minneapolis-St. Paul Business Journal has a piece up about the school’s move downtown to some spacious digs across Hennepin Avenue from the Brave New Workshop’s downtown theater (I highly recommend a show there – their sketch comedy stuff or improv – the next time you’re in Minneapolis).

This fall, I signed up for the Student Union’s Everday 1 improv classes. So far, I have to say it’s been money well spent – each Wednesday I walk in somewhat tired after a long day and walk out feeling energized from laughing for the better part of two hours.  I lucked out and slotted into a class with some truly funny people.  My cohort and I are just over half way through with our weekly sessions.  With the Student Union’s move downtown, I thought it would be a nice time to reflect on some of the lessons from improv class that are transferrable to the workplace.  Yes, even a law firm.  Here are three that stick out from the first few weeks of class:

  1. Live the “yes, and” ethos.  The central tenet to doing improv is living and practicing the so-called “yes, and” mantra.  Because nothing is scripted or planned in advance, improv scenes are literally evolving as the audience sees and hears them.  How do scenes build and not flop?  The foundation is saying “yes, and . . .” to whatever your scene partners throw your way.  That’s “yes, and . . .,” and not, “yes, and?”  You don’t ask questions.  You wholly and unequivocally accept what’s given and build from there.  “No,” or questions stop the flow.  It’s been striking to see how the power of “yes” can help build collaboration, trust, and enjoyment.  I imagine practicing “yes, and” with peers at work would yield similar results.  How often do you catching yourself saying “no” at work?  Next time try yes, and…
  2. Shut up.  Walking into a room full of self-selecting improv class students can be a bit overwhelming.  Chances are, no matter how much these people profess to be shy or express a desire to be in the class because they want to get outside themselves, each of them is just waiting for the moment they get to light up the room with laughs.  And do it again.  And again.   I believe there’s a parallel to the meetings here at the law firm full of type-As who all have something to say.  Sometimes you have to shut up, hold back, and let others shine in the moment.  It takes self-control.  In improv class, they say you should serve your scene and your scene partners before you serve your own self-interest.  That idea can go a long way in the workplace, too.
  3. Don’t Self-Edit – Be Declarative.  What would it be like if we all said what we meant and meant what we said?  Oh, yeah, we Minnesotans would be living in New York.  Ha.   I kid.  One of the exercises we did in class last week was one where we let our inner-monologues outside of our heads, filter-free (to the extent that’s possible).  We’ve also worked on making direct statements that seem to roll off the tongue with slightly less inhibition.  When we say what we are thinking and say them in forceful, direct ways, we save ourselves from our typical communication foibles.  This would be great in the workplace, no?

Gibson Guitar Facing 15 Trademark Opposers

Posted in Articles, Audio, Genericide, Loss of Rights, Non-Traditional Trademarks, Product Configurations, Sight, Trademarks, TTAB, USPTO

A brand owner’s non-traditional trademark application will sometimes gain the critical attention of multiple direct competitors. Gibson Guitar’s unlucky number is apparently fifteen.

Last Thursday, Gibson’s guitar configuration application shown to the right and below was opposed by far more competitors than it has strings on the above ebony Gibson ES-339 Studio Electric Guitar:

  • U.S. Music Corporation
  • ESP Shibuya Enterprises, Inc.
  • Cordoba Music Group, Inc.
  • Collings Guitars, Inc.
  • Ed Roman Enterprises, Inc.
  • Armadillo Enterprises, Inc.
  • Schecter Guitar Research, Inc.
  • Westheimer Corporation
  • Peavey Electronics Corporation
  • Warwick GmbH & Co. Music Equipment KG
  • James Trussart Guitars, Inc.
  • JS Technologies, Inc.
  • Premier Builders Guild, LLC
  • Sadowsky Guitars, Ltd.
  • John Hornby Skewes & Co., Ltd.

The opposers contend that the shape of the guitar is either generic or lacking in distinctiveness as a result of the “rampant” use of identical or substantially similar designs by a multitude of third parties over the past half a century. They name names, decade by decade.

So, stay tuned as we follow this interesting trademark chord, anxiously awaiting to hear whether Gibson is able to play something more than a classic blues riff, perhaps on something like this 15 string bad boy:

It appears that the opposers have spent some time doing their homework; if even half of what they say can be proven, they’ll be strumming Gibson’s pain with their fingers, and killing the trademark application (not so) softly.

UPDATE: It appears we have officially reached the point where I can’t keep track of all our content, I’m reminded that Dan Kelly had a great post from 2010 dealing with the guitar head issue, enjoy:

http://www.duetsblog.com/2010/11/articles/trademarks/get-your-paper-jamz-guitars-while-you-can/

Amy, Whatcha Wanna Do (About this TM)?

Posted in Articles, Branding, Infringement, Law Suits, Marketing, Trademarks, TTAB, USPTO

As we start to think about welcoming in the weekend, why don’t we all hum this Pure Prairie League tune, while viewing this image and reading this very brief blog post:

As this image (that I snapped this morning) shows, the skyway in downtown Minneapolis is sporting a relatively new snack shop called Amy’s. I’m not sure whether it is related to this one, only a block away. The branding and signage appears pretty different, but who knows?

I’m also not sure whether either of them are related to the pair of Amy’s that have suspended their present dispute at the TTAB of the USPTO, in order to have the federal district court in Austin, Texas decide not only the right to register, but the right to use. Sound familiar?

Anyway, within the last several days, the federal court in Austin, Texas, ruled that a trial will be necessary to decide the disputed issues of fact regarding whether likelihood of confusion exists as between the different Amy’s.

So, it’s probably fair to say, the dispute will be going “for a while, maybe longer.”

If my name is Amy, and I’m wanting to start a small business, and I’m seeing this trademark mess, I’m falling out of love pretty quickly with my personal name as my business name!

If your name is Amy, what you wanna do?

Converse: Stomping Out Counterfeits through Int’l Trade Commission Proceedings

Posted in Articles, Counterfeits, Famous Marks, Fashion, Infringement, Law Suits, Non-Traditional Trademarks, Product Configurations, Trademarks, TTAB, USPTO

Earlier this week, Converse launched an all-out offensive to combat what it considers counterfeit and knock-off versions of its Chuck Taylor All-Star line of sneakers. Reports peg the number as at least 22 separate lawsuits against more than 30 companies, both in district court and at the International Trade Commission (the “ITC”). The defendants read like a who’s who list in the fashion or retail world: Wal-Mart, Skechers, H&M, Ralph Lauren, Ed Hardy, Fila,  and others.  An image below, courtesy of the New York Times, shows the Converse All Star (left) next to the Fila version (middle) and Skechers (right):

 

And the view from the back, with a slight change in positioning from the front view

(From left to right: Converse, Skechers, Fila)

Halfway through one of the articles, I realized that even I had fallen victim to one of the defendants. I purchased these guys about a year and a half ago:

Making a direct comparison, there are certainly similarities. The white sole, the toe bumper, and the midsole cap all match up with the claimed mark in Converse’s registration. Other similarities include the placement of the brand name on the back sole as well as the contrasting use of a white sole with a solid colored top. However, there are no laces or other similarities with the toe box, mid-sole, or any portion other than the rubber sole.

There certainly will be a lot of digital ink spilled on this lawsuit as there are a number of interesting legal issues. But one item that isn’t discussed as frequently in the trademark is the role that the ITC can play as part of a robust intellectual property enforcement strategy.

As noted above, Converse filed a complaint (small ‘c’ complaint) with the ITC, alleging similar facts as those in the district court complaints. The relevant statutory provision is 19 U.S.C. Sec. 1337 (aka Section 337 of the U.S. Tariff Act). The ITC provides a distinct forum with unique advantages for certain situations. The ITC Trial Lawyers Association has a helpful FAQ here. One of the primary differences of an ITC proceeding is that it utilizes in rem jurisdiction based upon the presence of imported goods. The ITC will consider claims of trademark, patent, and copyright infringement, as well as trade secret misappropriation and a limited number of other business torts. Once an investigation is instituted, it is conducted similar to a Trademark Trial and Appeal Board or district court proceeding. There is an Administrative Law Judge, discovery, motion practice, and a trial. A major difference, though, is that an ITC staff attorney can participate throughout the process in order to ensure that the public interest is protected (also, no jury). Decisions of the ITC can be appealed to the U.S. Court of Appeals for the Federal Circuit and the decisions  (decisions are also subject to official “disapproval” by the President, but this rarely occurs).

If the plaintiff is successful, the ITC can issue permanent exclusion orders or cease and desist orders. Exclusion orders prevent the importation of the articles at issue in the proceeding (and potentially those of third-parties). The cease and desist order can enjoin defendants from certain activities within the United States. There are no damages available at the ITC.

Proceedings at the ITC may not always be available or a cost effective means of trademark enforcement. The ITC is most appropriate for consumer goods. And because money damages are not available, the volume of imported infringing goods must be large enough to justify the cost and expense of an ITC proceeding. The proceedings are also helpful where a trademark is unregistered and therefore cannot be recorded with the U.S. Customs and Border Protection division of the Dept. of Homeland Security.

There are a number of potential benefits to an ITC proceeding:

  • The process has a compressed schedule and often is concluded within a year;
  • Although damages aren’t available to the plaintiff, violations of an exclusion order carry up to a $100,000 fine per violation;
  • The ITC can enforce unregistered trademark rights as well as copyright, patent, trade secret, and general unfair competition claims; and
  • The ITC can issue exclusion orders that are not subject to the “irreparable harm” standard for traditional injunctive relief.

The last bit is worth highlighting. In light of the Supreme Court decisions in eBay v. MercExchange, 547 U.S. 388 (2006), and Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), district courts and appellate courts have begun raising the bar for plaintiffs to obtain injunctive relief for trademark infringement. For decades, most jurisdictions provided a presumption of irreparable harm upon a successful showing of a likelihood of confusion in a trademark infringement action. The Ninth Circuit reversed this long-standing case law in Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc. Although the plaintiffs appealed, the Supreme Court denied cert on October 6, 2014.

Depending on the fate of the presumption of irreparable harm in trademark cases, practitioners may want to take note of the remedies available at the ITC as the ease of obtaining an injunction upon a successful showing of likelihood of confusion may change the calculus as to whether an ITC proceeding would be worthwhile. Although the ITC isn’t as well-known as the other players in the game, if the other circuits follow the Herb Reed lead, the ITC may soon become an all-star in the minds of trademark lawyers around the country.

Targeting an Old Liquor Store

Posted in Branding, Famous Marks, Marketing, Trademarks

When I moved from Minnesota to Wisconsin to go to college, among the local customs that I had to get acclimated to were the revulsion against the word “pop” for carbonated beverages named “soda;” hearing classmates say “I just need to find the time machine” when they meant an ATM branded with Tyme; and the foreign concept of adults of legal age being able to purchase liquor in the checkout lane at the grocery store.  Minnesota, in case you’re not familiar, has some rather Puritan restrictions regarding liquor sales, including:  no Sunday sales, no sales in grocery stores, and most liquor stores close before 9 pm.

Even with these restrictions, that great Minnesota retail institution known as Target (say it with a French accent and it sounds even more noble) has come into the mix here locally.  Likely wanting a piece of the growing market for craft beer, wine and spirits, Target began opening liquor stores in the state over the last few weeks, first in Ostego and a second planned in St. Louis Park.   While this seemed like huge news to me, I guess it really only applies to Minnesota.  As Tim informs me, you can generally purchase liquor at Target in almost any other state (or at least the one that matters, Iowa).

Upon reading that news, this St. Paul girl immediately thought of this iconic sign at Snelling Ave. & University Avenue in St. Paul.

 

Snelling Ave. Fine Wines is a liquor store located about 6 blocks from the nearest Target and 4 miles down Snelling Avenue from the first Target store in the U.S in 1962.  Until writing this post, I did not realize this store actually had a name; I’ve always referred to it based on the sign.

Target Brands owns a registration for the “Target” bullseye symbol, originally registered for a “retail liquor store,” but that portion was cancelled sometime earlier than 1993 (it’s difficult to tell exactly when from the available record in the USPTO online database).  They have some more recent intent-to-use based filings for the brand’s smaller concept retail outlet, Target Express, that feature the bullseye symbol and include liquor store services as part of the identification of goods.

Now, I couldn’t locate much regarding the history behind this sign or whether Target and the owner of the liquor store have ever battled over this sign in the past. My sense though is that the sign is related to Target’s past use of the mark in the liquor store industry.  If any readers out there have any information regarding the sign, I would be interested in its history.  I’m sure local architectural historian Larry Millett or my uncle Tommy would have something to add.

Given Target’s entry – or re-entry after almost four decades – into the Minnesota liquor store market, is there a possibility of consumer confusion between Snelling Ave.’s signage and Target’s use?  I suspect that there might be some, but Target’s use to date has only been as a cordoned off section of a much larger retail location where you can purchase everything you need.  Consumers are not generally conditioned to a small, Target branded store offering products in only one segment.  Even with this new smaller Target Express, products will be sold in multiple segments.  And certainly in Minnesota, consumers know that they can only buy liquor in liquor stores or through a separate entry at a grocery store.  Could Target enjoin Snelling Ave. Fine Wines from using the sign?  Probably not, given the likely availability of a laches defense (an unreasonable delay in bringing a lawsuit that prejudices the other party) and the City of St. Paul’s interest in preserving its historic landmarks, buildings, and signage.

This signage makes me think of another Minnesota institution, although these are franchised locations:

 

Based on the growing interest in nostalgia and heritage branding, one would think that Target might want the sign back.

Right to Use/Register TMs: Webinar Friday!

Posted in Branding, Infringement, Law Suits, Trademarks, TTAB, USPTO

We have spent quite a bit of time here discussing the critical difference between a brand owner’s right to register a trademark, as compared to a brand owner’s right to use a trademark.

We have noted that these are distinct rights — they are not coextensive rights. Just because a brand owner is denied the right to register based on likelihood of confusion doesn’t necessarily mean that the brand owner has infringed the trademark rights of another with prior rights.

We also have expressed concern, but remain hopeful that the U.S. Supreme Court will recognize this important distinction when it hears oral argument in the B&B Hardware case this December.

Now is your chance to learn more about this important topic, and engage on this topic in an upcoming live webinar sponsored by West LegalEdcenter, details can be found here.

I’m looking forward to a lively discussion with Patrick Gallagher of the Norton Rose Fulbright firm and Draeke Weseman of the Weseman Law Office. We hope you’ll join us!

Bottega Veneta Unties a Trademark Knot

Posted in Advertising, Articles, Branding, Fashion, International, Look-For Ads, Marketing, Non-Traditional Trademarks, Product Configurations, Sight, Trademarks, USPTO

It is easy for some to get all tied up in knots at the USPTO when facing challenging grounds for refusal against federal registration of a claimed non-traditional trademark. Not Bottega Veneta.

Last week the Swiss-owned fashion house and luxury brand was able to persuade the USPTO to approve for publication the three dimensional knot (shown to the right) as a non-verbal trademark for “handbags, shoulder bags, ladies’ handbags, clutch bags and purses”:

The mark is described this way: “[It] consists of a configuration, namely a three-dimensional knot with caps at each end, affixed to a clasp on the goods.” Registration was initially refused registration as a non-distinctive product design under Sections 1, 2, and 45 of the Lanham Act.

But, the recent 586-page submission, touting more than $18 million in sales over the past decade, more than $5 million in advertising since 2003, favorable declarations from a few fashion industry experts, and a good deal of unsolicited media attention and mentions of the iconic knot design, carried the burden of showing acquired distinctiveness under Section 2(f) of the Lanham Act (as the USPTO was not persuaded that the knot design could be considered inherently distinctive). The knot design is a feature of the configuration of the goods, so Supreme Court precedent would appear to make impossible a successful inherently distinctive trademark claim.

I was left wondering about whether look-for advertising played a role in Bottega Veneta’s success, but it appears not. Although none was required for the showing of acquired distinctiveness, there was no specific mention of look-for advertising in the Bottega Veneta submission to the USPTO, despite the existence of a few helpful references on the Bottega Veneta website:

The knot design is not limited to appearing on bags and purses, it appears. Just last month, Bottega Veneta’s same knot design trademark was published for opposition, as an inherently distinctive intent-to-use trademark for various personal care products in Int’l Class 3, but as the image below reveals, the mark already appears to be in use at least with women’s fragrances:

To the extent you’re wondering why the knot design for personal care products could be approved for publication with no showing of acquired distinctiveness — unlike the knot design as applied to bags and purses — the answer is: fragrances and personal care products don’t have configurations. So, unlike the knot design that forms a portion of the bag or purse, when it comes to fragrances and personal care products, the knot design forms a portion of the packaging for those products. As we have noted previously, the Supreme Court has indicated inherently distinctive product configurations are not possible, but inherently distinctive product packaging or containers are possible.

Having said that, the Examining Attorney at the USPTO appears to be reserving the right to refuse registration without a showing of acquired distinctiveness — even for the knot design in connection with fragrances — once Bottega Veneta submits evidence of use in connection with the claimed personal care products. In fact, it advised Bottega Veneta “that, upon consideration of an allegation of use, registration may be refused on the ground that the applied-for mark, as used on the specimen of record, is a nondistinctive configuration of packaging for the goods that is not registrable on the Principal Register without sufficient proof of acquired distinctiveness.”

I’m thinking that if such a refusal is issued after evidence of use is submitted, Bottega Veneta will be able to untie that knot as well, do you agree?

Last, I love the way Bottega Veneta has given the non-traditional knot design a name, not surprisingly it’s KNOT — and the luxury brand owner is seeking federal registration of the word too. What is surprising, however, is the USPTO’s initial registration refusal based on mere descriptiveness for Int’l Class 18 goods, such as purses and bags:

“Registration is refused because the applied-for mark merely describes a feature of applicant’s goods.  Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.

A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods and/or services.  TMEP §1209.01(b); see, e.g., DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).

The term KNOT means “an interlacement of the parts of one or more flexible bodies forming a lump or knob (as for fastening or tying together).”  Please see the attached definition from the Merriam-Webster Online Dictionary.

As shown by the attached evidence from AStitchAHalf.com and PatternPile.com, the term merely describes bags and purses that are closed by tying a knot with the straps.  As such, the mark merely describes a feature of the applicant’s goods in Class 18.

Accordingly, because the applicant’s mark is merely descriptive under Section 2(e)(1) of the Trademark Act, registration is refused.”

I’d call that a pretty loose knot, wouldn’t you?