Heritage All. v. Am. Pol’y Roundtable

Authored by: Jeremy J. Gustrowsky

A recent decision from the Federal Circuit offers important lessons for anyone hoping to protect a descriptive brand name as a trademark. In Heritage Alliance v. American Policy Roundtable, the court affirmed that the term “iVoterGuide” is too descriptive to function as a trademark for online voter guides, and that Heritage Alliance had not shown the term had acquired distinctiveness in the minds of consumers.

Heritage Alliance had been using “iVoterGuide” and “iVoterGuide.com” since around 2008 to offer online voter guides. When American Policy Roundtable (APR) later sought to register “iVoters” and “iVoters.com” for similar services, Heritage opposed the registration, arguing that the marks were confusingly similar. However, the Trademark Trial and Appeal Board (TTAB) dismissed the opposition, finding that “iVoterGuide” was highly descriptive—it simply described an Internet-based voter guide—and that Heritage had not provided enough evidence to show the public associated the term specifically with its services.

The Federal Circuit agreed with the TTAB, explaining that a highly descriptive mark is difficult to protect unless there is strong evidence that consumers recognize it as a brand, not just a description. Heritage’s evidence—mainly a few declarations from volunteers and proof of five years’ use—was not enough. The court noted that the TTAB has discretion to decide whether five years of use is sufficient to show distinctiveness, especially for highly descriptive marks, and that more robust evidence (like consumer surveys or significant media coverage) is often needed.

This case is a reminder that while descriptive terms may be tempting for branding, they are hard to protect as trademarks unless you can show that consumers have come to see them as uniquely identifying your business. Simply using a descriptive term for several years is often not enough—especially if the term directly describes what you do.