The Supreme Court returned to session this morning in accordance with a long-held tradition of opening the annual term on the first Monday in October. The recent changes to the Court’s composition, coupled with the potential impact of the decisions looming on the horizon, promise to make this session a particularly interesting one.
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In July 2009, the Federal Circuit affirmed a Trademark Trial and Appeal Board (TTAB) finding that the mark HOTELS.COM was generic when used in connection with information and reservation services for temporary lodging.
Traditionally, “generic” terms or phrases are defined as being incapable of carrying trademark significance, meaning that they are so highly descriptive of the pertinent goods or services that they are not capable of ever achieving enough distinctiveness to serve as a source indicator. Accordingly, a common test for determining genericness of a service mark involves an analysis of whether the term or phrase at issue is used by the relevant public primarily to refer to the class or “genus” of services.