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TTAB Rules Apple’s SMART KEYBOARD Trademark Generic for Smart Keyboards

January 16, 2021 | Intellectual Property

In an extremely long opinion, the Trademark Trial and Appeal Board (“TTAB”) affirmed a refusal to register Apple’s SMART KEYBOARD trademark based on genericness for “Accessory for a handheld mobile digital device, namely, a protective and decorative cover for a tablet computer that functions as a computer stand and incorporates a keyboard” on the Supplemental Register. There are a few factors at play here:

First and foremost,  a generic trademark is essentially the word for a good or service – like COMPUTER for computers. In this opinion, the Board ultimately found that consumers and prospective purchasers would understand the phrase “SMART KEYBOARD” to refer to a technologically-advanced keyboard, which is the genus of goods applied for.

Second, the U.S. Patent and Trademark Office maintains the Supplemental Register for trademarks that are not yet eligible for registration on the Principal Register, but may, over time, become an indicator of source. Seeking registration on the Supplemental Register on its own already suggests the proposed trademark is at best descriptive (meaning the trademark describes the goods/services applied for).

Third, Apple’s SMART KEYBOARD application already contained a Disclaimer for the word “keyboard”. A Disclaimer means the Applicant does not claim exclusive rights to use of the word – thus weakening Applicant’s trademark rights to SMART KEYBOARD even further.

Fourth, although descriptive trademarks can be registered on the Supplemental Register, generic terms cannot. Therefore, the Board considered the test for generic trademarks: 1) what is the genus (class or category) of the goods or services at issue? and 2) does the relevant public understand the designation primarily to refer to that genus of goods or services? The Board ultimately found that the genus of goods was a technologically-advanced keyboard, and that the relevant public would indeed understand SMART KEYBOARD to refer to technologically-advanced keyboards.

This opinion illustrates the fact that the best trademarks are arbitrary (unrelated to the goods/services applied for) or fanciful (made up).