What types of creative words can be registered as trademarks? Are double entrendes merely descriptive, or are they entitled to protection under trademark law? The Trademark Trial and Appeal Board (TTAB) felt the latter when they recently ruled that double entrendes are not merely descriptive and are entitled to trademark protection. In In re Tea and Sympathy, Inc., the TTAB held that “The Farmacy,” when used in connection with medical marijuana in International Class 035 (retail sales) and 044 (on-site health services), is more than just a misspelling of “the farm” and “the pharmacy.” It suggests a wholly different commercial impression, and is thus a registrable trademark.
The original examining attorney contended that THE FARMACY was merely descriptive of where the services are provided, essentially a pharmacy selling medical marijuana. The examining attorney argued that consumers would still view the term as descriptive despite the change in spelling. Furthermore, the examining attorney argued, the term is also descriptive of where the products sold in the pharmacy originate from, namely a farm. Thus, all interpretations of the term are descriptive of the services, not suggestive.
The TTAB disagreed with the examining attorney, and instead found that the term is suggestive:
We find that the mark THE FARMACY, as used in connection with applicant’s services, is more than simply a misspelling of “the pharmacy.” Consumers are not likely to perceive that mark as just a misspelling, but rather as a play on the natural or farm-fresh characteristics of applicant’s herbs and organic products used for medicinal purposes featured in applicant’s services.
The Board found that THE FARMACY mark was creative enough where consumers would view it as more than just “the pharmacy.” The Board compared the case to a similar decision involving the term MUFFUNS, where the Board held that the applicant's “inventive” and “stylized” play on “muffin” and “fun” created a commercial impression that was more than just “muffins.” Therefore, the TTAB reversed the examining attorney's decision and cleared the way for registration for THE FARMACY.