By James Juo.

Typically, the mere misspelling of a word as a phonetic equivalent is not sufficient to change a merely descriptive term into an inherently distinctive trademark. In re Carlson, 91 USPQ2d 1198, 1200–1201 (TTAB 2009) (finding “URBANHOUZING” to be a phonetic spelling of “urban” and “housing”); In re Organik Tech. Inc., 41 USPQ2d 1690, 1694 (TTAB 1997) (finding “ORGANIK” is the phonetic equivalent of  “organic”); Hi-Shear Corp. v. Nat'l Automotive Parts Ass'n, 152 USPQ 341, 343 (TTAB 1966) (finding HI-TORQUE “is the phonetic equivalent of the words ‘HIGH TORQUE'”); In re Quik-Print Copy Shop, Inc., 616 F.2d 523, 526 & n.9 (C.C.P.A. 1980) (finding “QUIK-PRINT” is a phonetic spelling of “quick-print”); see also Nupla Corp. v. IXL Mfg. Co., 114 F.3d 191 (Fed. Cir. 1997) (finding CUSH-N-GRIP “is merely a misspelling of CUSHION-GRIP”).

In an appeal of a Section 2(e)(1) descriptiveness refusal of an intent-to-use application for the DRYPZ mark for therapeutic services, such as intravenous hydration therapy, etc., the Trademark Trial and Appeal Board (“TTAB”) found that “Applicant has modified the spelling of DRIPS to DRYPZ, with the letters ‘Y' and ‘Z' substituting for the letters ‘I' and 'S' in DRIPS, but the modified term DRYPZ remains the phonetic equivalent of DRIPS.” In re DRYPZ, LLC, Serial No. 88711363 (TTAB Sept. 13, 2021) (emphasis added).

The DRYPZ mark was viewed as a single word, and apparently no argument was made as to whether DRYPZ could viewed be a compound mark, see TMEP 807.12(e) (“A compound word mark is comprised of two or more distinct words, or words and syllables, that are represented as one word (e.g., BOOKCHOICE,…)”), comprised of, for example, “dry” and “pz” (where “pz” might be slang for peace, or an acronym for party zone or pickup zone) that might give rise to a meaning different from “drips”; especially as “dry” would seem incongruous with the intravenous hydration therapy recited in the trademark application.

With respect to the phonetics, according to SpeakMoreClearly.com, the letter “S” may have an /s/ or a /z/ sound depending on the preceding letter. When the letter ‘S' is after an unvoiced consonant such as ‘P' (see ThoughtCo.); it is pronounced as an /s/ sound. When the letter ‘S' is after a vowel or a voiced consonant (a consonant pronounced with the vibration of the vocal cords); it is pronounced as a /z/ sound. For example, houzing and starz are phonetic equivalents to housing and stars. But because ‘P' is an unvoiced consonant, the ‘S' in “drips” would be pronounced with an /s/ sound and not a /z/ sound. If pronounced with a /z/ sound, then it would sound more like “drip see” with a German accent. Even so, this difference in sound, by itself, might not be enough to alter the descriptive character of a misspelled word “unless the alteration is sufficient to avoid encumbering use of the original word.” Restatement (Third) of Unfair Competition (Oct. 2019 update) § 14, Cmt. a; see also In re Bayer Aktiengesellschaft, 488 F.2d 960 (Fed. Cir. 2007) (finding ASPIRINA was sufficiently similar to “aspirin” to render it merely descriptive of analgesic goods notwithstanding “some differences in sound”).

But such arguments were not made, and in view of the claimed “intravenous” therapeutic services, where terms such as “IV drip” appear to be commonly used in the medical industry (not to mention medical-based television shows); it sounds like the DRYPZ mark was intended to be the phonetic equivalent of DRIPS.

The applicant nonetheless argued that the applied-for mark is suggestive because DRYPZ or “drips” could involve several different products or services, such as plumbing, coffee shops, irrigations systems, and fashion. But, citing In re Chamber of Commerce of the U.S., 675 F.3d 1297 (Fed. Cir. 2012), the TTAB held that the fact that “drips” may be used in connection with such unrelated goods and services is immaterial because descriptiveness must be determined in relation to the particular goods or services for which registration is sought.

Thus, the TTAB concluded that “when used in connection with Applicant's intravenous therapeutic services, the proposed mark, DRYPZ, is merely descriptive of the services.”