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Federal Circuit Evaluates the Use of Domain Names in Trademarks
The Federal Circuit affirmed that absent secondary meaning, the mark “patents.com” for patent tracking software was descriptive, but that no bright line rule exists that would automatically preclude the distinctiveness of a domain name added to a descriptive term.
In In re Oppedahl, 2004 U.S. App. LEXIS 12875 (Fed. Cir. 2004), the USPTO refused to register “patents.com” because the term “patents” was deemed descriptive for patent tracking software and the addition of “.com” did not make the mark distinctive. In rejecting the mark, the USPTO pointed to the policy regarding top level domain names (“TLDs”) in the Trademark Manual of Examination and Procedure (“TMEP”), which states “because TLDs serve generally no source-indicating function, their addition to an unregisterable mark typically cannot render it registerable.” On appeal, Applicants argued that the USPTO had developed a bright line rule against the distinctiveness of TLDs and was not properly considering the mark in its entirety.
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