When a USPTO Examining Attorney takes the position that a mark is merely descriptive of an applicant’s goods or services and issues a refusal on that basis, the applicant normally has an opportunity to submit arguments and evidence in support of registration directly to the Examining Attorney. If unsuccessful, the applicant may seek review of the Examining Attorney’s refusal(s) before the TTAB. However, recent statistics suggest that there is less than a 10% chance of reversing a refusal based on mere descriptiveness.
A recent article by The TTABlog® reported an affirmance rate of over 90% for 2026 thus far for refusals of trademark applications on appeal to the Trademark Trial and Appeal Board (“TTAB”) due to mere descriptiveness based on Section 2(e)(1) of the federal Lanham Act. This is slightly higher than historic rates for recent years. For example, in 2024, the TTAB affirmance rate for refusals based on Section 2(e)(1) was just under 88%.
In general, the law discourages the registration of terms that merely describe an ingredient, quality, characteristic, function, feature, purpose, or use of a trademark applicant’s applied-for goods or services because, e.g., competitors may have the right to use such wording to describe their goods or services.
Given the technical and nuanced issues that can arise during the trademark application process, experienced intellectual property counsel should be consulted and engaged to assist with the process.
