Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE NATIONAL PATENT DEVELOPMENT CORPORATION
Serial No. 430,128
November 19, 1986
Hearing: July 10, 1986
Edward M. Prince and Vincent P. Pirri for applicant
Gary L. Shaffer
Trademark Examining Attorney
Law Office 7
(Lynne Beresford, Managing Attorney)
Before Rice, Simms, and Krugman
National Patent Development Corporation has appealed from the final refusal of the Trademark Examining Attorney to register the term FIRST AID for 'adhesive tape, gauze pads, sterile absorbent cotton, adhesive bandages, conform bandages, cotton tipped applicators.' [FN1] The Examining Attorney has refused registration of this term, now sought to be registered on the Supplemental Register, on the ground that these words are so highly descriptive of applicant's products that they are incapable of distinguishing applicant's goods from those of others. We affirm.
It is applicant's position that the words FIRST AID are, at worst, merely descriptive of applicant's goods but not the generic or common descriptive name thereof; that applicant prominently uses these words as a trademark on its products; and that two prior registrations of the terms FIRST-AID and FIRSTAID under the Act of February 20, 1905, demonstrate that applicant's mark is capable of distinguishing its goods from those of others, at least at some future date.
We agree with the Examining Attorney, however, that these words are so highly descriptive of applicant's products that they are unregistrable, even on the Supplemental Register. First, some of the specimens filed with the application demonstrate that applicant's products, such as its sterile gauze pads, are for 'first aid use.' (See illustration below.)
The Examining Attorney also points to the illustration on the back of the promotional brochure submitted by applicant which demonstrates obviously generic use of the term 'first aid' for such products as applicant's First Aid Kit, Marina First Aid Kit, The Handyman First Aid Kit, Bikers First Aid Kit and Travel First Aid Kit. It is the Examining Attorney's position that the term FIRST AID is generic not only with respect to the first aid kits but also for the items which make up those kits.
The Examining Attorney has also pointed to usages of the term 'first aid' from articles appearing in the popular press and in trade publications as found on the NEXIS computer search system. In these excerpts, 'first aid' is used both to refer to immediate or emergency treatment and also to the products used in such treatment:
Becton Dickinson is the exclusive U.S. team sponsor for first-aid products, including ankle braces, elastic bandages, and cold packs and cold compression wraps . . .
Your first aid kit should include gauze bandages, adhesive bandages, medicine, disinfectant, menstrual pads and any other items that you may need . . .
Other deals were for various goods ranging from textiles to pesticides and first aid bandages, many of them exported to Iran for the first time . . .
*2 More than 75 percent of those surveyed said they carry first-aid kits, most often mentioning such ingredients as plastic bandage strips, first-aid salve, alcohol, iodine, tourniquet, calamine lotion, sunscreen, and hydrocortisone . . .
We knew they'd be fooling with the campfire, and packed in plenty of first-aid cream, which made me feel lots better when I burned myself on the frying pan . . .
This and other evidence of record clearly shows that applicant's goods are first aid products or supplies (the genus of the goods) and that the term FIRST AID is commonly used and understood by the relevant public to refer to that genus or category of goods. H. Marvin Ginn Corporation v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986). That is to say, applicant's goods are in fact first aid tape, gauze, bandages, etc. While it is true that the words FIRST AID do not name applicant's goods, we nevertheless agree with the Examining Attorney that they are so highly descriptive of those products that they are incapable of distinguishing applicant's first aid products from those of others. See, for example, In re Helena Rubinstein, Inc., 410 F.2d 438, 161 USPQ 606 (CCPA 1969) (PASTEURIZED and PASTEURIZED FACE CREAM SPECIAL for face cream held so highly descriptive of those goods as to be incapable of registration on the Supplemental Register), Roselux Chemical Co., Inc. v. Parsons Ammonia Co., Inc., 299 F.2d 855, 132 USPQ 627 (CCPA 1962) (SUDSY for 'aqueous ammonium hydroxide composition' held a common descriptive name of 'sudsy ammonia'), and In re National Patent Development Corp., ---- USPQ ----, Serial No. 359,452 (TTAB Aug. 25, 1986) (ULTRA PURE held unregistrable on the Supplemental Register).
Decision: The refusal of registration is affirmed.
J. E. Rice
R. L. Simms
G. D. Krugman
Members, Trademark Trial and Appeal Board
FN1. Serial No. 430,128, filed June 13, 1983, as an application on the Principal Register, amended to the Supplemental Register on July 30, 1984, claiming use since August 8, 1979.