[This guest post was written by Kira-Khanh McCarthy, a 2L at University of Notre Dame Law School]. The Board affirmed a Section 6(a) requirement that Applicant disclaim the word KING in its applied-for mark KING LIVING in the design form shown below. The mark was used for, inter alia, furniture and bed-related goods and services. Applicant argued that KING LIVING is a unitary phrase and a double entendre. Examining Attorney Dustin Bednarz maintained that KING is "merely descriptive of a characteristic or feature of [the] goods and services." Ultimately, the Board affirmed Examiner's refusal to register the mark based on Applicant's refusal to disclaim the word KING. In re King Furniture Australia Pty Ltd., Serial No. 79204467 (September 29, 2018) [not precedential] (Opinion by Judge Jyll Taylor).
Applicant contended that KING LIVING is "a unitary phrase and a double entendre in connection with its goods and services because as used in its mark, the word KING does not stand alone as a separable and merely descriptive element of the mark." In fact, Applicant insisted that KING LIVING is synonymous with the expression "living like a king." It therefore urged that no disclaimer was required. In support of this position, Applicant submitted definitions of the term "king," definitions of the phrase "live like a king," and internet excerpts using the phrase "king living."
On the contrary, the Examining Attorney asserted that KING "merely describes a characteristic or feature of Applicant's goods, namely being 'principal or chief in size or importance' and 'of or relating to a king-sized bed.'" Thus, a disclaimer of the word would be necessary. He submitted as evidence definitions for "king" and "live like a king," internet sources of various third-party commercial entities showing the word KING used in connection with the sale of bed-related products, a copy of Applicant's Reg. No. 5010020 for the mark KING KINGLIVING.COM & Design with KING disclaimed, and internet materials from Applicant's website that use the term KING to refer to the size of bed and mattress.
The Board found that Applicant's evidence fell short of showing that its mark conjured the phrase "living like a king." In Applicant's submitted brief, only a single internet post (in the user-generated comment section posted on Trip Advisor) showed the phrase "king living" being used "in a manner that invokes the same lavish lifestyle connotation as that conveyed by the phrase 'living like a king.'" The other website excerpts were found not to convey any impression of living in comfort or luxury.
Accordingly, the Board found that Applicant's mark is not a unitary phrase or a double entendre. The Examining Attorney hence properly dissected Applicant's KING LIVING and design mark and confirmed that the word KING is merely descriptive. Perhaps the strongest evidence for descriptiveness was found in Applicant's own use of the word KING on its websites when referring to beds and mattresses.
Consequently, the Board affirmed the refusal to register based on Applicant's failure to disclaim KING. Applicant was allowed the standard thirty days to submit a disclaimer in order to have the decision set aside. If Applicant does not submit the required disclaimer, the application will nonetheless continue in its registration process with respect to the goods and services not subject to the refusal.
TTABlog comment: Seems to me that KING LIVING is a unitary phrase because it would be recognized by ordinary consumers as advertising puffery. But how would you prove that? And the survey says ......?
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