Congenital Diaphragmatic Hernia!
It’s a serious condition, but… what about it?
BoingBoing has the latest story of trademark insanity, where a “charity” focused on the rare, but apparently serious disease of Congenital Diaphragmatic Hernia (CDH), is trying to trademark [sic] the phrase “Congenital Diaphragmatic Hernia Awareness” and appears to be threatening other charities for using the phrase, and (according to this petition) has filed complaints to get fundraising stores shut down for using the phrase.
Brilliant use of a charity’s resources, pro bono or otherwise! Just the thought of it gives me a neurological hernia. But congenital it ain’t. I just got it from reading this item. Or maybe I just became “aware” of it.
In fact, as the page at the “petition” drive shows, a registration was in fact issued for CONGENITAL DIAPHRAGMATIC HERNIA AWARENESS last April. Well, okay — it’s only on the Supplemental Register. It was bounced there last July after being rejected for inclusion on the Principal Register on the unsurprising grounds of “mere descriptiveness.” For non-trademark professionals, it’s like this:
A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods and/or services.TMEP §1209.01(b) . . .
In the present case, as seen from the recitation of services, the mark, CONGENITAL DIAPHRAGMATIC HERNIA AWARENESS, is merely descriptive of a feature of the services that provides awareness regarding congenital diaphragmatic hernia.Because the mark is merely descriptive of the services, registration must be refused on the Principal Register pursuant to Section 2(e)(1) of the Trademark Act.
They can take another shot at a real registration if they can ever demonstrate that the “mark” has “acquired distinctiveness.”
But there’s more: a new, pending application (serial number 77640674) for CONGENITAL DIAPHRAGMATIC HERNIA AWARENESS DAY! And, once again, they’re shooting for the Principal Register over at Breath of Hope, Incorporated. Because “awareness” may be descriptive, but a “day” of “awareness”? Who would ever figure out what that means?
Don’t fret too much. There are “petitions” — such as the one linked to in the story above — and there are petitions — such as this Petition to Cancel. Filed by a rival organization working the same territory (yes!), it’s based on two arguments: “Fraud” on the PTO about how and when the mark was first used and whether the first use claimed is really for the pending DAY mark (indeed there’s a lot of back and forth on this topic in the application archive), and “genericness” — i.e., that the “mark” will never acquire distinctiveness and never can and that the opposer will be harmed by the registration by being unable to talk about… that awareness thing.
Quite a bit of intrigue here, actually, because it appears that the DAY application was indeed filed after the opposition!
Considering how little heavy lifting is involved, I’d bet on the latter “petition” … but not on the end of “trademark insanity.” It’s the modern-day version of competition by other means.
UPDATE: The registration was in fact cancelled in June of 2010.