Non-precedential opinion of TTAB for proceeding No. 98199104 in 2025

A copy of the opinion (downloadable at https://ttab-reading-room-aws.uspto.gov/cms/rest/legal-proceeding/97344289/decision/EXA_10.pdf) should be appended to the motion or brief. TBMP §101.03(a)(2).

(1) Holding

The Board reversed the refusal to register the mark GHOSTWRITTEN INC. because it was not merely descriptive for the Applicant’s services.

(2) Mark

The Applicant, Ghostwritten LLC, sought registration on the Principal Register of the standard-character mark GHOSTWRITTEN INC. for numerous services in International Class 41, some of which could be ghostwritten:

• Educational and entertainment programs accessible via audio, web-based applications, and computer networks (covering daily life, comedy, pop culture, current events, memes, internet videos, and music).
• Providing websites featuring blogs, non-downloadable podcasts, and videos in various fields like daily life, entertainment, social issues, music, movies, and celebrity news.
• Providing information in the fields of entertainment and current events.
• Digital video, audio, and multimedia publishing services, including e-books and electronic publications.
• Live musical performances, music production, and music publishing services.
• Entertainment services in the nature of web series and webcasts.
• Online databases featuring music.
• Conducting art exhibitions (including NFT art and virtual exhibitions), custom art drawing/sketching, and providing virtual museum services.
• Film production and multimedia publishing of various media.
• Providing online non-downloadable virtual clothing, headwear, footwear, eyewear, fashion bags, games, toys, CDs, and DVDs for use in virtual environments for entertainment purposes.

(3) Procedural History

The Examining Attorney refused registration on two grounds:

• Likelihood of Confusion: With four registered marks: GHOSTWRITER (Class 9 – video/DVDs, TV programs), GHOSTWRYTER (Class 41 – music artist/production/live performances), GHOSTWRITER (Class 9 – audio/video recordings, downloadable publications/content), and GHOSTWRITER (Class 16 – printed materials, Class 41 – TV programs, multimedia programs, online information). This ground was withdrawn in the final office action.
• Mere Descriptiveness: Arguing that GHOSTWRITTEN INC. is merely descriptive of the services because the Applicant provides services related to creative content that could be produced for another who is the presumed or credited creator. The Examining Attorney provided dictionary definitions for “ghostwritten” and Internet evidence showing its common use in creative industries. In the final action, additional evidence was attached to illustrate that blog posts, website content, e-books, and written information are commonly ghostwritten.

(4) Issues

Whether the Examining Attorney carried her burden of proving that GHOSTWRITTEN INC. immediately conveys knowledge about a significant feature of Applicant’s services, thereby being merely descriptive under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1).

(5) Rationales

The TTAB reversed the refusal based on the following rationales:

• Vagueness and Amorphousness: The Board found the term GHOSTWRITTEN INC. to be “too amorphous, nebulous and vague” for consumers to immediately understand it as describing a significant feature of the Applicant’s recited services. The leap between the mark and the services’ attributes is not “almost instantaneous”.
• Lack of Prevalance in Public Perception: The Examining Attorney’s evidence did not demonstrate that the consuming public would instantaneously perceive GHOSTWRITTEN INC. as describing a key attribute of Applicant’s specific services.
• Applicant’s Intent to be Confirmed by Statement of Use: Applicant explicitly stated that “none of the services listed in the identification of services are intended to be created for another who is the presumed or credited creator or author”.
• Third-Party Registrations: The Board noted that four similar “GHOSTWRITER” or “GHOSTWRYTER” marks were registered without overcoming Section 2(e)(1) refusals, even though they covered creative works. This indicated that the Office had taken a different position in the past, supporting the idea that the public does not immediately understand “GHOSTWRITTEN” as descriptive of such services.
• Suggestive, Not Merely Descriptive: The Board concluded that the mark is, “at worst, ‘suggestive of the services in connection with which it is used’”. Given the difficulty in drawing the line between descriptive and suggestive marks, any doubt was resolved in favor of the Applicant, as the Examining Attorney failed to meet the burden of establishing mere descriptiveness.

Non-precedential opinion of TTAB for proceeding No. 97344289 in 2025

A copy of the opinion (downloadable at https://ttab-reading-room-aws.uspto.gov/cms/rest/legal-proceeding/97344289/decision/EXA_10.pdf) should be appended to the motion or brief. TBMP §101.03(a)(2).

Holding

The board affirmed the disclaimer requirement and preemptively reversed the likelihood of confusion.

Mark

EquipKeyCo, LLC (“Applicant”) sought to register for “pre-fabricated metal ignition keys for starting heavy equipment, namely construction and agricultural equipment” in International Class 6.

Procedural history

Examiner required a disclaimer of the wording “EQUIP KEY CO” within the mark, arguing that it is merely descriptive of the Applicant’s goods because “EQUIP” is a recognized abbreviation for “equipment”, “KEY” directly refers to the goods (keys), and “CO” is a common abbreviation for “company”.

Examiner also refused the registration based on the likelihood of confusion because the applied-for mark’s wording, which is a dominant feature, consists of only the entire wording of the cited mark plus a descriptive wording.

Issues

1. Isa unitary mark with a nondescript meaning?
2. Is likely to be confused with for “metal, brass and aluminum key blanks; metal and aluminum key chains; metal and brass locks, lock cylinders, pad locks and door locks” in Class 6?

Rationales

1. Finding the wording Equip Key Co is descriptive, the board noted that the composite mark did not create a unitary mark with a non-descriptive meaning because of the capitalization and coloring. The design elements were deemed irrelevant to the descriptiveness of the wording itself.
2. The Board found similarity in goods and shared channels, and it doubted the equipment purchasers, however sophisticated, would exercise the same degree of care for small, inexpensive items like keys. Nevertheless, the board found that the words Key and Co were conceptually weak and highly suggestive in connection with keys and key-related goods so as to the difference in design portions was sufficient to avoid confusion. See In re Bed & Breakfast Registry, 791 F.2d 157, 159 (Fed. Cir. 1986); In re Hartz Hotel Servs., Inc., 102 USPQ2d 1150, 1154 (TTAB 2011).