"TICK TAPE" Merely Descriptive for Patented Insect Removal Device

In In Re Innovation Development Group, Inc. (Fed. Cir.; March 14 2005; not citable as precedent), Innovation Development filed an intent-to-use application to register the mark TICK TAPE for the hand tool device described in the U.S. Patent No. 6,718,686 (above) as "a foam backing with an adhesive surface" that "will adhere to the body of the tick while the device is pulled away from the skin, resulting in the removal of the tick." The court held that substantial evidence supports the Board’s findings that TICK TAPE is merely descriptive:

The Board found that "tape" has a broad definition that includes "adhesive tape." In addition, the Board found that Innovation Development intended to use the mark in the following context:

A device for the removal of insects, particularly ticks, from a human or
animal host includes a foam backing with an adhesive surface that folds
along a central folding axis. The adhesive surface will adhere to the body
of the tick while the device is pulled away from the skin, resulting in the
removal of the tick.

Innovation Development disputes this finding, arguing that it did not concede that "tape" means "adhesive tape," but only that "[a]dhesive tape is one of many possible types of tape." For purposes of this appeal, we assume that adhesive tape is one type of tape. (quoting the ’686 patent’s abstract). It would seem, therefore, that an essential feature of Innovation Development’s product is a foam structure
that folds around an insect, such as a tick, and has adhesive qualities so as to
be capable of removing the tick from the host. Innovation Development’s product
consequently falls squarely within the definition of "tick tape." Thus, we
think substantial evidence supports the Board’s finding that, as used in the
context of Innovation Development’s hand tool, "the mark TICK TAPE would
immediately indicate that one component of [the] hand tool is an adhesive tape
and that the hand tool is particularly useful for removing ticks," and that the
mark is therefore merely descriptive.