American Outdoor Brands Corporation

Trademark Trial and Appeal Board

Apr 14, 2020

87305157 (T.T.A.B. Apr. 14, 2020)

Mailed: April 14, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re American Outdoor Brands Corporation
_____
Serial Nos.:
87305138, 87305140, 87305141, 87305142, 87305143, 87305144
87305145, 87305146, 87305147, 87305151, 87305154, 87305155
87305156, 87305157, 87305158, 87305159, 87305162, 87305163
_____
Hara K. Jacobs of Ballard Spahr, LLP
for American Outdoor Brands Corporation.

Bianca Allen, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
_____
Before Bergsman, Adlin and Hudis, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant American Outdoor Brands Corporation filed 30 applications to register
AMERICAN OUTDOOR BRANDS CORPORATION, one seeking registration of the
proposed mark in standard characters, and the other 29 seeking registration of the
mark in this design form: . This decision addresses the 18
previously-consolidated applications identified above (the “Group I Cases”), all of
which seek to register the design form of the mark and identify hunting, fishing,
This Opinion is Not a
Precedent of the TTAB
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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climbing, firearms and camping-related products and services; a separate decision
addresses the remaining 12 applications, which have also already been consolidated
(the “Group II Cases”).1
Because the examining attorneys found in all of the Group I Cases that the literal
portion of Applicant’s mark, AMERICAN OUTDOOR BRANDS CORPORATION, is
primarily geographically descriptive of the involved goods and services under Section
2(e)(2) of the Trademark Act, 15 U.S.C. § 1052(e)(2), they refused registration absent
a disclaimer of that literal portion in its entirety.2 The examining attorneys also found
that Applicant failed to establish its alternative claim that AMERICAN OUTDOOR
BRANDS CORPORATION has acquired distinctiveness. After the refusals became
final, Applicant appealed and filed requests for reconsideration that were denied.
Applicant also requested and was granted a remand to introduce additional evidence
that it alleged “is directly relevant to the acquired distinctiveness of Applicant’s
mark,” and successfully moved to consolidate the two groups of cases as indicated. 5,
6, 14 and 15 TTABVUE.3 Applicant and the Examining Attorney filed briefs.

1 The 12 Group II Cases are application Serial Nos. 87228558, 87228588, 87305135,
87305137, 87305149, 87305160, 87305164, 87305165, 87305166, 87305167, 87305169 and
87305170.
2 The 30 Group I and Group II Cases originally were split among several examining attorneys,
each of whom handled and developed evidence in multiple cases. Eventually, all 30 cases
were assigned to Examining Attorney Bianca Allen.
3 Unless otherwise indicated, citations are to the record in parent application Serial No.
87305138 (the “’138 Application”). In citations to TTABVUE, the Board’s online docketing
system, the number preceding “TTABVUE” corresponds to the docket entry number(s), and
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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I. The Applications
Applicant filed all 18 of the Group I applications on January 18, 2017, based on
an alleged bona fide intent to use the mark in commerce for the goods and services
identified in each application. In each application, Applicant disclaimed “BRANDS
CORPORATION” apart from the mark as shown, and made an alternative claim that
“AMERICAN OUTDOOR BRANDS CORPORATION” has acquired distinctiveness
pursuant to Trademark Act Section 2(f), 15 U.S.C. § 1052(f). Each application
describes the mark as follows: “The mark consists of the wording ‘AMERICAN
OUTDOOR BRANDS CORPORATION’ adjacent to a silhouette of a mountain range
with two mountain peaks resting above a silhouette of a curved line representing a
stream.” The identified goods and services in each application are set forth in their
entirety in the Appendix to this decision.
II. Applicant
Applicant, known until November 2016 as Smith & Wesson Holding Corporation,
is the parent of Smith & Wesson Corp. August 16, 2017 Office Action Response TSDR
6-7. Smith & Wesson “has been a brand name synonymous with firearms” since 1852.
Id. at 6.

any number(s) following “TTABVUE” refer to the page number(s) of the docket entry where
the cited materials appear. Citations to the TSDR database are to the downloadable .pdf
version of the documents.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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Over the years, “[t]hrough a series of acquisitions, Smith & Wesson has diversified
and expanded its well-known brand outside of the firearms industry.” Id. In fact, at
the time of its name change, Smith & Wesson Holding Corporation held “more than
eighteen highly respected and well-known consumer brands in such diverse areas as
personal safety and survival tools such as survival kits, camp kitchen products, and
fire starters; hunting products, such as bipods and tripods, hunting knives, hand
saws, axes, and hatchets; and recreational sports apparel and related accessories.”
Id. at 7. Applicant claims that “[w]ith every strategic acquisition, Smith & Wesson
draws closer to its strategic goal of being the leading provider of products for the
shooting, hunting, and recreational sports industries.” Id. at 6-7.
Applicant’s new name and logo, shown in the involved applications, “were chosen
as a representation of the brand and growing array of brands in the shooting, hunting,
and recreational sporting markets … to create an impression of adventure and
freedom and capture the rugged spirit possessed by the active lifestyle of the
consumer for the AMERICAN OUTDOOR BRANDS CORPORATION™ products.”
Id. at 7. As Applicant’s webpage states, it offers “some of the most popular names in
the shooting, hunting and rugged outdoor enthusiast markets,” to “consumers who
have a passion for the adventure, freedom, and personal inspiration offered by
embracing the great outdoors”:
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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September 27, 2017 Office Action TSDR 78. An article in the Springfield,
Massachusetts Republican about Applicant’s name change states “Venerable Smith
& Wesson completed its transition Tuesday to a new corporate name – American
Outdoor Brands Corporation – which is more fitting with its diversification strategy.”
March 27, 2018 Request for Reconsideration TSDR 47. A Wall Street Journal article
quotes Applicant’s spokeswoman as saying “We believe the new name better reflects
our many brands and products and our growth strategy.” Id. at 43.
III. Disclaimer Requirement
Under Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), “[t]he Director may
require the applicant to disclaim an unregistrable component of a mark otherwise
registrable,” such as a component which is merely descriptive under Section 2(e)(1)
of the Act or primarily geographically descriptive under Section 2(e)(2) of the Act.
Failure to comply with a disclaimer requirement is a basis for refusing registration.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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See In re Slokevage, 441 F.3d 957, 78 USPQ2d 1395, 1399-1400 (Fed. Cir. 2006); In
re Stereotaxis, Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005).
The Examining Attorney argues that Applicant must disclaim the literal portion
of its mark in each Group I application because it is a combination of a geographically
descriptive word (AMERICAN) and a term which merely describes the provider of
Applicant’s goods and services, or those goods and services themselves (OUTDOOR
BRANDS CORPORATION). 18 TTABVUE 12-20 (Examining Attorney’s Appeal Brief
at 11-19).
Applicant argues, however, that the literal portion of its mark is not descriptive,
geographically or otherwise: “AMERICAN OUTDOOR BRANDS CORPORATION is
amorphous, conveying nothing specific, but conjuring up a sense of freedom – a calling
to unexplored places.” 16 TTABVUE 13 (Applicant’s Appeal Brief at 9). More
specifically, Applicant claims that AMERICAN is “an inherently nuanced term,”
which “engenders the impression of the red, white, and blue; of hope and freedom; of
a dream. ‘AMERICAN’ is a way of life, a culture.” Id. at 14. In fact, according to
Applicant, the “geographic meaning of ‘AMERICAN OUTDOOR’ is different for every
consumer. It could be the Colorado Rockies, the California Redwoods, the
Shenandoah Valley, or Central Park in New York City. It means nowhere in
particular.” Id. at 15.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
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A. The Test for Assessing Geographic Descriptiveness
In order to establish that the literal portion of Applicant’s mark is primarily
geographically descriptive, the Examining Attorney must establish that: (1) the
primary significance of the term is the name of a place known generally to the public;
(2) the public would make a goods/place association, i.e. believe that the goods for
which the applicant seeks registration originate in that place; and (3) the source of
the goods is the geographic region named in the mark. In re Newbridge Cutlery Co.,
776 F.3d 854, 113 USPQ2d 1445, 1448-49 (Fed. Cir. 2015) (quoting In re Societe
Generale Des Eaux Minerales De Vittel S.A., 824 F.2d 957, 3 USPQ2d 1450, 1452 (Fed.
Cir. 1987) and In re Jacques Bernier, Inc., 894 F.2d 389, 13 USPQ 1725 (Fed. Cir.
1990)); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1210.01(a) (2018).
The Examining Attorney argues that AMERICAN OUTDOOR BRANDS
CORPORATION is primarily geographically descriptive because it consists of a
geographically descriptive term combined with merely descriptive terms. In fact,
generally, adding a descriptive or generic term (as the Examining Attorney alleges
OUTDOOR BRANDS CORPORATION to be) to a geographic one (AMERICAN) does
not alter the geographic term’s geographic significance. See e.g. In re Cheezwhse.com,
Inc., 85 USPQ2d 1917, 1920 (TTAB 2008) (NORMANDIE CAMEMBERT primarily
geographically descriptive of Camembert cheese, because “[i]t is settled that the
primarily geographic significance of a term (like NORMANDIE) is not overcome by
the addition of a generic term (like CAMEMBERT)”); In re JT Tobacconists, 59
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
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USPQ2d 1080, 1083 (TTAB 2001) (“The additional presence in applicant's mark of
the generic terminology ‘CIGAR COMPANY’ for an entity in the business of selling
cigars and related cigar products such as cigar cases and humidors does not detract
from or otherwise alter the fact that the primary significance of the mark as a whole
is geographical.”); In re California Pizza Kitchen Inc., 10 USPQ2d 1704, 1705 (TTAB
1988) (same).
B. Is AMERICAN OUTDOOR BRANDS CORPORATION Primarily
Geographically Descriptive?
The Examining Attorney has established that the literal portion of Applicant’s
mark is geographically descriptive, as AMERICAN is a geographically descriptive
term which is combined with terms that are at best merely descriptive of Applicant’s
goods and services.
1. The Primary Significance of AMERICAN is a Place Known
Generally to the Public
The Examining Attorney has established that “AMERICAN” means “of or relating
to the United States of America or its people or language or culture.” September 27,
2017 Office Action TSDR 7, 10, 15 (printouts from “ahdictionary.com,” “merriam-
webster.com” and “vocabulary.com”). These dictionary definitions belie Applicant’s
argument, which is unsupported by any evidence, that “AMERICAN” is amorphous,
or that it means freedom or conveys any other non-geographic concept or feeling. See
In re Wada, 194 F.3d 1297, 52 USPQ2d 1539, 1541 (Fed. Cir. 1999) (affirming refusal
to register NEW YORK WAYS GALLERY and rejecting mere argument, unsupported
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
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9
by any evidence, that there is a “New York style” of the goods at issue, or that NEW
YORK evokes “an aura of status or prestige”). As the Examining Attorney points out,
the adjectival form of a geographic location, such as AMERICAN, is treated the same
as the name of the geographic location itself. See e.g. In re Premiere Distillery, LLC,
103 USPQ2d 1483, 1484 (TTAB 2012) (finding that the primary significance of REAL
RUSSIAN for vodka is geographic, stating “[i]t is well-established that adjectival
forms of geographic terms are also considered primarily geographically descriptive”);
In re Joint-Stock Co. “Baik,” 80 USPQ2d 1305, 1310 (TTAB 2006) (BAIKALSKAYA,
which means “from Baikal,” is primarily geographically descriptive of vodka).
Further, not only has Applicant failed to introduce any evidence that AMERICAN
has a non-geographic meaning in the context of its goods or services, but Applicant’s
own use of the term reveals that AMERICAN is used in its geographic sense. For
example, a Napa Valley Register article on Applicant’s name change quotes
Applicant’s CEO James Debney as saying “We believe the name ‘American Outdoor
Brands Corporation’ will better reflect our family of brands, our broad range of
product offerings and our plan to continue building upon our portfolio of strong
American brands.” March 27, 2018 Request for Reconsideration TSDR 36
(emphasis added); see also September 27, 2017 Office Action TSDR 78 (essentially the
same quote on Applicant’s webpage). Despite being confronted with this evidence
throughout prosecution of its involved applications, Applicant has never even
contended, much less presented evidence, that its stated desire to build a portfolio of
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
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“strong American brands” means strong “freedom” brands, or that its use of the term
“AMERICAN” in this way has any meaning other than its geographic meaning.
In any event, even if Applicant had established that AMERICAN may have other
meanings in different contexts, which it did not, that would not alter its primarily
geographic meaning when used in Applicant’s proposed mark for Applicant’s
identified goods and services. In re Hollywood Lawyers Online, 110 USPQ2d 1852,
1858 (TTAB 2014) (finding HOLLYWOOD LAWYERS ONLINE primarily
geographically descriptive of attorney referrals, pointing out that “without additional
elements in the mark to detract from the geographic significance, there is no allusion
to the alternative meaning referencing the ‘glamour’ of the film industry”);4 In re
Opryland USA Inc., 1 USPQ2d 1409, 1412-13 (TTAB 1986) (NASHVILLE
NETWORK primarily geographically descriptive of television program production
and distribution, because the programming has “a substantial enough relation to
Nashville, Tennessee,” even though the term “has other imagery than the city of
Nashville,” stating “[b]ecause a term may have other meanings does not necessarily
alter the primacy of its geographical significance”); In re Cookie Kitchen, Inc., 228
USPQ 873, 874 (TTAB 1986) (MANHATTAN & Design primarily geographically
deceptively misdescriptive of cookies, even though term has other meanings, such as

4 The design element of Applicant’s mark does not support a finding that AMERICAN has a
non-geographic meaning or commercial impression. While the mountain peaks and stream
depicted in the design element could be located anywhere, given the established meaning of
“AMERICAN,” consumers would likely perceive the pictured peaks and stream as American.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
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87305157, 87305158, 87305159, 87305162 and 87305163

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a Manhattan cocktail); In re Jack’s Hi-Grade Foods, Inc., 226 USPQ 1028, 1029
(TTAB 1985) (NEAPOLITAN primarily geographically deceptively misdescriptive of
sausage even though term has other meanings, such as a type of multi-flavored ice
cream). Here, based on multiple, consistent dictionary definitions of the term
AMERICAN, and Applicant’s own use of the term in connection with its goods and
services, AMERICAN is primarily geographically descriptive.
When we consider the mark as a whole, we find that the primary geographic
significance of AMERICAN does not change. As indicated, Applicant has disclaimed
BRANDS CORPORATION in each application. This is essentially an admission that
this portion of Applicant’s mark is merely descriptive. In re Carlson, 91 USPQ2d
1198, 1200 (TTAB 2009); Bass Pro Trademarks LLC v. Sportsman’s Warehouse, Inc.,
89 USPQ2d 1844, 1851 (TTAB 2008). See also Alcatraz Media Inc. v. Chesapeake
Marine Tours Inc., 107 USPQ2d 1750, 1762 (TTAB 2013), aff’d mem., 565 Fed. Appx.
900 (Fed. Cir. 2014). In any event, Applicant concedes the point in its Appeal Brief,
stating that it seeks registration “with a disclaimer of ‘OUTDOOR’ and ‘BRANDS
CORPORATION,’ terms that, unlike the mark as a whole, directly convey
information or describe a purpose of [Applicant’s] products or services.” 16 TTABVUE
13.
Despite agreeing to disclaim the term OUTDOOR, Applicant nevertheless
simultaneously argues that AMERICAN OUTDOOR is “unitary,” and suggestive
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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rather than merely descriptive5 as used in the literal portion of its mark. Id. We
disagree. This argument is inconsistent with Applicant’s agreement to disclaim
OUTDOOR by itself. In re Slokevage, 441 F.3d 957, 78 USPQ2d 1395, 1399 (Fed. Cir.
2006) (“If a mark is unitary, meaning that it has no ‘unregistrable components’ and
is an ‘inseparable whole,’ it is exempted from the disclaimer requirement because ‘it
does not fit within the language of 15 U.S.C. § 1056(a).”); In re Kraft, Inc., 218 USPQ
571, 573 (TTAB 1983) (“when the registrable and unregistrable elements of a
composite mark are so integrated or merged together that they cannot be regarded
as separate units, so that it is obvious that no claim other than of the composite is
involved, no disclaimer should be required”); TMEP § 1213.05 (“If the matter that
comprises the mark or relevant portion of the mark is unitary, no disclaimer of an
element, whether descriptive, generic, or otherwise, is required.”).
More importantly, AMERICAN OUTDOOR is not unitary in Applicant’s proposed
mark. In fact, the elements of a unitary mark are “inseparable,” in that “the mark
has a distinct meaning of its own independent of the meaning of its constituent

5 A mark is deemed to be merely descriptive, within the meaning of Section 2(e)(1), if it
immediately conveys knowledge of a quality, feature, function, characteristic or purpose of
the goods for which it is used. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007) (quoting In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009)); and In re Abcor
Development, 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). A mark need not
immediately convey an idea of each and every specific feature of the goods in order to be
considered merely descriptive; rather, it is sufficient that the mark describes one significant
attribute, function or property of the goods. In re Gyulay, 3 USPQ2d at 1010.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
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elements.” Dena Corp. v. Belvedere Int’l, Inc., 950 F.2d 1555, 21 USPQ2d 1047, 1052
(Fed. Cir. 1991). That is not the case here.
To the contrary, the Examining Attorney has established that if any element of
AMERICAN OUTDOOR BRANDS CORPORATION is unitary, it is the term “outdoor
brands,” which is commonly used by third parties and the media to identify entities
such as Applicant which offer products intended to be used outdoors. For example, an
Outside magazine article entitled “These Are the Coolest Small Brands We Saw at
Outdoor Retailer” states: “We give the big outdoor brands a lot of love at Outdoor
Retailer – and for good reason. Companies like Patagonia and The North Face make
great products.” September 27, 2017 Office Action TSDR 43-49 (printout from
“outsideonline.com”) (emphasis added). A Hiking for Her website article entitled “The
Best Outdoor Brands for Hikers” identifies the characteristics of “the best outdoor
brands.” It includes lists of: “outdoor brands focused on wide selection” (including
REI and Sierra Trading Post); and “outdoor brands focused on social responsibility”
(including Patagonia and REI). Id. at 60-62 (printout from “hiking-for-her.com”)
(emphasis added). One of Applicant’s apparent competitors which also sells hunting
and fishing gear operates under the trade name PRADCO OUTDOOR BRANDS:
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
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87305157, 87305158, 87305159, 87305162 and 87305163

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Id. at 52 (printout from “pradcooutdoorbrands.com”). A section of Field & Stream’s
website is devoted to the “Top Outdoor Brands”:

Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
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Id. at 50 (printout from “fieldandstreamshop.com”). The Industry Insights section of
Migrate Outdoor includes an article entitled “Why Outdoor Brands Need Awesome
Content”:

Id. at 64-66 (printout from “migrateoutdoor.com”) (emphasis added). An Adventure
Journal article entitled “Outdoor Brands That Guarantee Their Gear for Life”
separates outdoor product companies – including Jansport, Eddie Bauer, Gore-Tex,
The North Face and REI – into two groups, those which provide lifetime warranties
for their products, and those which provide limited lifetime warranties:
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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Id. at 54-63 (printout from “adventure-journal.com”). Finally, news articles use the
term “outdoor brand(s)” to refer to entities which offer outdoor goods, such as hunting,
fishing, camping, climbing and related products:
A Business Briefing in the Canton, Ohio Repository states
that “L.L. Bean is positioning itself as an outdoor brand
focused less on individual pursuits and more on family and
friends enjoying the outdoors, whether it’s a remote lake or
local park.”

The Salt Lake City Deseret Morning News article “Ogden
Signs Agreement with European Firms” quotes Ogden’s
Mayor as saying “Hosting the EU4Sports Alliance will
connect Ogden with outdoor industry partners and
discover synergies for business growth … We want to open
doors to global outdoor brands and support their efforts
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
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as they look to Ogden’s mountain to metro community as
their partner for U.S. market expansion.”

A Minneapolis St. Paul Business Journal article quotes
Winnebago’s CEO as saying “The Winnebago brand and
the company is almost iconic. It’s a great part of the history
of American business and outdoor brands, but yet it had
been struggling to some degree over the last 10 years.”

A Denver Post article indicates that Backbone Media
“represents dozens of outdoor brands that are forging the
new progressive outdoor economy ethos.”

A Manchester, New Hampshire Union Leader article
states “Colleen Vien is the sustainability director at
Timberland, a global outdoor brand based in New
Hampshire.”

A Memphis Commercial Appeal article states “Mossy Oak
is one of today’s iconic outdoor brands. With beginnings
as a maker of camouflage clothing for hunting, Mossy Oak
has grown into a family of brands.”

A Lewiston Idaho Morning Tribune article about Vista
Outdoors states “Outside of its guns and ammunition line,
it holds a number of outdoor brands such as Jimmy Styks
paddleboards, CamelBak and Camp Chef.”

A St. Louis Post-Dispatch article about a clothing designer
states that he designs a “rugged collection of flannel with a
modern fit and details that set it apart from other outdoor
brands.”

A Quad City Times article on activewear states “most
outdoor brands have moved away from the ‘pink it and
shrink it’ philosophy that frustrated female outdoor
enthusiasts for so long.”

Id. at 68-77 (emphasis added). Thus, to the extent that any part of the literal portion
of the proposed mark is unitary, it is OUTDOOR BRANDS rather than AMERICAN
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
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18
OUTDOOR. It is of course significant that this evidence of use of OUTDOOR
BRANDS also establishes that there are many American “outdoor brand(s)”
companies, several of which are “corporations.”
In any event, even if OUTDOOR BRANDS was not a unitary term, that would not
matter here, and disclaimers of AMERICAN and OUTDOOR would still be required.
As we found above, AMERICAN is primarily geographically descriptive. As Applicant
admits, OUTDOOR directly conveys information about and describes a purpose of
Applicant’s identified goods and services, which are outdoor-focused. 16 TTABVUE
13. And Applicant’s conclusory contention to the contrary notwithstanding, using
AMERICAN and OUTDOOR together does not alter the meaning of either of the
term’s constituent elements. Indeed, Applicant is an American company offering
outdoor products and services. And even if AMERICAN is interpreted as modifying
OUTDOOR, such that it conveys that Applicant’s brands are intended for use in
outdoor environments in the United States, the term would still not amount to
anything more than its constituent elements.6

6 Applicant’s argument that “AMERICAN OUTDOOR is capable of many different
meanings,” 16 TTABVUE 21, is unsupported by any evidence, and unpersuasive in any event.
“It is well settled that so long as any one of the meanings of a term is descriptive, the term
may be considered to be merely descriptive.” In re Chopper Industries, 222 USPQ 258, 259
(TTAB 1984); see also, In re IP Carrier Consulting Group, 84 USPQ2d 1028, 1034 (TTAB
2007); In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).

Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

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Turning back to the literal portion of the proposed mark as a whole, as explained
above it is settled that adding a descriptive or generic term (as the evidence shows
OUTDOOR BRANDS CORPORATION to be) to a geographic one (AMERICAN) does
not alter the geographic term’s geographic significance. In re Cheezwhse.com, 85
USPQ2d at 1917; In re JT Tobacconists, 59 USPQ2d at 1080; In re California Pizza
Kitchen, 10 USPQ2d at 1704. In other words, Applicant’s use of OUTDOOR BRANDS
CORPORATION for a United States corporation comprised of many outdoor brands
does not detract from or otherwise alter the fact that the primary significance of the
literal portion of Applicant’s mark as a whole is geographic. Applicant is an American
outdoor brands corporation.
The literal element of Applicant’s mark is also geographically descriptive when
considered in the context of the specific goods and services identified in the involved
applications. In fact, terms such as AMERICAN OUTDOOR BRANDS
CORPORATION which describe the provider of a good or service are themselves often
unprotectable, unless they have acquired distinctiveness. For example, in In re The
Chamber of Commerce of the U.S., 675 F.3d 1297, 1301, 102 USPQ2d 1217 (Fed. Cir.
2012), the Federal Circuit affirmed the Board’s finding that NATIONAL CHAMBER
is merely descriptive of “promoting the interests of businesspersons or industry on a
national level, or connecting local chambers of commerce through a nationwide
network,” because CHAMBER can refer to a chamber of commerce and chambers of
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

20
commerce typically offer those services. In fact, some of the applicant’s services were
a “core function” of chambers of commerce. Id. at 1221.
Similarly, in this case, various American outdoor brands typically provide the
types of goods and services for which Applicant seeks to register its mark, most of
which relate to hunting, fishing, shooting, climbing, camping and other outdoor sports
and endeavors.7 See also In re Major League Umpires, 60 USPQ2d 1059 (TTAB 2001)
(MAJOR LEAGUE UMPIRE merely descriptive of clothing, face masks and chest
protectors provided by a company owned and operated by Major League Baseball
umpires because it describes the provider and designer of the goods); In re E.I. Kane,
Inc., 221 USPQ 1203 (TTAB 1984) (OFFICE MOVERS, INC. generic for moving
services for offices); In re Career Employment Services, Inc., 219 USPQ 951, 952
(TTAB 1983) (THE PROFESSIONAL HEALTHCARE PEOPLE generic for providing
temporary employment services for medical personnel because the term refers to the
applicant and its employees who place temporary workers); In re Old Boone Distillery
Co., 172 USPQ 697, 698 (TTAB 1972) (DISTILLER’S LIGHT merely descriptive of
scotch whisky because it “conveys the information that applicant’s product is a
distiller’s light blended scotch whisky”). Similarly, here, AMERICAN OUTDOOR
BRANDS CORPORATION merely describes a conglomeration of outdoor brands
based in the United States which provide outdoor products and services.

7 This is true whether the outdoor brands operate independently or under a parent
corporation which owns many different outdoor brands, such as Applicant.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

21
The literal element of Applicant’s mark describes not only the provider of
Applicant’s identified goods and services, but also those goods and services
themselves, because they are all outdoor-focused goods and services. Specifically, the
identifications of goods and services in the 18 involved applications all fall into one
or more of four general categories:
CAMPING CLIMBING HUNTING and
FISHING
FIREARMS and
SHOOTING
Serial Nos.:

87305138
87305140
87305142
87305145
87305146
87305151
87305154
87305155
87305156
87305157
87305158
87305159
87305163
Serial No.:

87305141
Serial Nos.:

87305143
87305162
Serial Nos.:

87305144
87305147

The Examining Attorney has established that goods falling within these general
categories are known as “OUTDOOR” products and services, and that various
“OUTDOOR BRANDS” offer goods and services in these general categories. In
addition, the Examining Attorney has established that OUTDOOR and OUTDOOR
BRANDS are terms used in connection with specific goods and services identified in
the involved applications. For example, outdoor gear may include climbing gear, as
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

22
revealed by Gear Patrol’s report on “The 25 Best Outdoor Stores in America,” which
lists Redpoint Climber’s Supply and Pagan Moutaineering, both of which offer specific
goods identified in the involved applications for climbing products:

November 14, 2017 Office Action in ‘144 Application TSDR 21-22, 25 (printout from
“gearpatrol.com”). The Great American Outdoor Show is a National Rifle Association
(NRA) event which covers firearms, hunting, shooting and other outdoor goods and
services. It reveals the relationship between firearms and related products and
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

23
services, identified in some of the involved applications, and the outdoors more
generally:

Id. at 33-45. Duckworth is described in an article about “outdoor brands” as offering
clothing in-part identical to clothing identified the ‘159 Application (t-shirts):
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

24

September 27, 2017 Office Action TSDR 44, 46 (printout from “outsideonline.com”).
Similarly, Gear Patrol’s report reveals that some sources of outdoor products and
services offer their “own brand of apparel”:

Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

25
November 14, 2017 Office Action in ‘144 Application TSDR 22.
In short, because Applicant is an outdoor brands company from the United States
which offers outdoor products and services through and under its various outdoor
brands, AMERICAN OUTDOOR BRANDS CORPORATION is merely geographically
descriptive and must be disclaimed. We have often found analogous terms to be non-
distinctive. See e.g. In re Wm. B. Coleman Co., Inc., 93 USPQ2d 2019 (TTAB 2010)
(ELECTRIC CANDLE COMPANY generic for light bulbs and lighting products
where the applicant and third parties used the term ELECTRIC CANDLE generically
for those products, stating that “even if the proposed mark as a whole is not the literal
name of the goods,” or the name the public would use to describe them, it is
“nonetheless incapable” of distinguishing source, because “the relevant public would
nonetheless understand the term to refer to a company which offers electric candles”);
In re Cell Therapeutics, Inc., 67 USPQ2d 1795 (TTAB 2003) (CELL THERAPEUTICS,
INC. generic for pharmaceutical preparations and laboratory research related to
biochemical signaling pathways because medical doctors and researchers, the
relevant purchasers of the goods and services, would readily understand the term to
refer to “various goods and services that treat cells …”); In re The Paint Products Co.,
8 USPQ2d 1863, 1866 (TTAB 1988) (PAINT PRODUCTS CO. highly descriptive of
paints and coatings because purchasers “would view those words not as a trademark
but in their ordinary dictionary sense: a company that sells paint products,” and “the
phrase should remain available for applicant’s competitors”).
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

26
Here, the literal element of Applicant’s mark would be viewed not as source
identifying, but instead in its ordinary dictionary sense: a United States corporation
consisting of outdoor brands. More specifically, consumers who know which specific
goods or services are identified in the involved applications will understand that
these hunting, fishing, camping, shooting and climbing products and services are
provided by such a corporation. DuoProSS Meditech Corp. v. Inviro Medical Devices
Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (“The question is not
whether someone presented with only the mark could guess what the goods or
services are. Rather, the question is whether someone who knows what the goods or
services are will understand the mark to convey information about them.”) (quoting
In re Tower Tech Inc., 64 USPQ 2d 1314, 1316-17 (TTAB 2002)). The Examining
Attorney has established this element of the test.
2. The Public Would Make a Goods/Place Association
We find that the public would believe that Applicant’s goods and services originate
in America, because: as revealed by the involved applications, Applicant was
organized in Nevada and is based in Massachusetts; Applicant’s website promotes its
“portfolio of strong American brands;” and Applicant files reports with the United
States Securities and Exchange Commission, one of which states that it
manufactures its “firearm products at our facilities in Springfield, Massachusetts and
Houlton, Maine.” September 27, 2017 Office Action TSDR 88; March 27, 2018 Request
for Reconsideration TSDR 23-25. In re JT Tobacconists, 59 USPQ2d at 1084 (finding
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

27
a goods/place association between Applicant’s goods and Minnesota based on the
applicant’s admission that its goods were packaged and shipped from there); In re
Handler Fenton Westerns, Inc., 214 USPQ 848, 850 (TTAB 1982). This element of the
test is therefore also satisfied.
3. The Source of the Goods is the Geographic Region Named in the
Mark
As indicated, the involved applications and the evidence of record reveals that
Applicant is based in the United States and manufactures goods here. September 27,
2017 Office Action TSDR 88; March 27, 2018 Request for Reconsideration TSDR 23-
25. The Examining Attorney has therefore established each element of the test.
4. Applicant Has Not Rebutted the Examining Attorney’s Prima
Facie Case
Applicant’s argument that AMERICAN OUTDOOR BRANDS CORPORATION is
“amorphous, conveying nothing specific” and means something “different for every
consumer” is not well taken. As we have found, the evidence − including the evidence
establishing that OUTDOOR BRANDS is descriptive of, and commonly used to refer
to, companies which offer products and services of the type identified in the involved
applications – is to the contrary as a matter of fact.
Moreover, the argument is misplaced as a matter of law. Applicant’s argument
calls to mind a similar contention made in In re Patent & Trademark Svcs., Inc., 49
USPQ2d 1537 (TTAB 1998), in which the applicant sought to register PATENT &
TRADEMARK SERVICES, INC. for “legal representation in the area of Intellectual
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

28
Property administered by representing others before the Patent and Trademark
Office and the Copyright Office.” There we found essentially the same argument
unpersuasive because the proposed mark “describes significant aspects of applicant’s
services, and the fact that the phrase does not specify exactly which patent and
trademark services applicant offers does not mean that applicant is entitled to
exclusively appropriate the phrase.” Id. at 1539.
Here, we find Applicant’s similar argument unpersuasive for essentially the same
reason – Applicant’s mark need not “specify exactly which” outdoor goods or services
Applicant offers to be found merely descriptive, because all of Applicant’s specifically-
identified goods and services are outdoor-focused and come from America. Similarly,
Applicant’s mark need not describe any particular place in America to be primarily
merely geographically descriptive. See In re American Furniture Warehouse Co., 126
USPQ2d 1400, 1404 (TTAB 2018) (“we find that the primary significance of
AMERICAN is geographic, the adjective form of AMERICA, a place generally known
to the American public”).
Applicant argues that unlike other geographic terms, the word AMERICAN is
entitled to “special treatment,” citing TMEP § 1210.02(b)(iv) (Oct. 2018). 16
TTABVUE 13-15. While that TMEP section makes clear that if AMERICAN “is used
in a nebulous or suggestive manner, then it is inappropriate to treat” the term as
primarily geographically descriptive, at the same time it restates the law that if
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

29
AMERICAN “is used in a way that primarily denotes the United States origin of the
goods or services, then the term is primarily geographically descriptive.”
Here, while Applicant argues that it uses AMERICAN in a “nebulous” manner,
there is no evidence that as used in Applicant’s mark AMERICAN is amorphous, that
it conjures up a sense of freedom or that it “engenders the impression of the red,
white, and blue; of hope … of a dream.” As the Federal Circuit has held, "[a]ttorney
argument is no substitute for evidence." Zheng Cai, d/b/a Tai Chi Green Tea Inc. v.
Diamond Hong, Inc., 901 F.3d 1367 , 127 USPQ2d 1797, 1799 (Fed. Cir. 2018)
(quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005));
In re U.S. Tsubaki, Inc., 109 USPQ2d 2002, 2006 (TTAB 2014) (finding that there
was no proof to support the statements in the record by counsel). See also In re
California Pizza Kitchen, 10 USPQ2d at 1705 (“However, applicant has not submitted
any evidence whatsoever in support of the contention that the public would associate
‘CALIFORNIA’ with western-style or wood-fire cooking. In the absence of any
evidence of a non-geographical meaning of ‘CALIFORNIA’, we conclude that the
primary (and on this record the only) significance of ‘CALIFORNIA’ is its
geographical significance.”) and In re JT Tobacconists, 59 USPQ2d at 1084 (“There is
simply no support for applicant’s assertion that the primary significance of its mark
[MINNESOTA CIGAR COMPANY] ‘is to suggest a level of excellence in procuring
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

30
top quality cigars and cigar related products.’”).8 In fact, the evidence of record reveals
that Applicant uses AMERICAN to denote the United States origin of its outdoor
brands.
The cases upon which Applicant relies, discussed in Applicant’s Appeal Brief at
16 TTABVUE 14-15, are therefore inapposite. Indeed, as the Examining Attorney
points out, in Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251 (1916), the
term AMERICAN in the mark THE AMERICAN GIRL referred not to the geographic
origin of the shoes for which the mark was used, but instead to the GIRL referenced
in the mark, and was therefore found to not be a geographical term. In In re Jim
Crocket Promotions, Inc., 5 USPQ2d 1455 (TTAB 1987), the term AMERICAN in THE
GREAT AMERICAN BASH is used in a laudatory manner, as part of the commonly-
used term “Great American,” and therefore the public would not “consider that it is
intended to, or that it does, primarily describe the geographical origin of applicant’s
services.”9 See also September 27, 2017 Office Action TSDR 19-33 (evidence of
widespread third party use of the term GREAT AMERICAN, for example in “great

8 Of course, even if AMERICAN was shown to mean freedom, or the red, white and blue or
the like, as in In re Opryland USA, “these meanings are all so closely connected to” America
“that they do not … obviate that term’s primary geographic sense.” In re Opryland USA, 1
USPQ2d at 1413.
9 In re Olejar, 2016 BL 289681 (TTAB 2016) is non-precedential. In any event, in that case
the term AMERICAN in AMERICAN BARRISTER was found to be part of a unitary,
incongruous phrase that did not describe the geographic origin of the services. Barristers are
lawyers in England or Wales who perform their services only there, so “consumers will likely
perceive ‘American’ to refer primarily to a personal characteristic rather than to the
geographic location per se.”
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

31
American novel” and “great American smokeout”). Here, by contrast, there is no
evidence that the term AMERICAN in Applicant’s mark refers to anything other than
the geographic location where Applicant’s goods and services originate.
5. Conclusion Regarding Geographic Descriptiveness
Other American outdoor brands or outdoor brand companies that compete with
Applicant have a “legitimate interest … in truthfully being able to use [the geographic
term “American outdoor brands corporation”] to inform the public of the origin of their
similar products” and services. In re Cambridge Digital Sys., 1 USPQ2d 1659, 1662
(TTAB 1986). See also In re MCO Properties, Inc., 38 USPQ2d 1154, 1156 (TTAB
1995) (“The purpose of the proscription in Section 2(e)(2) of the Act against
registration of primarily geographically descriptive terms is to leave place names free
for all businesses operating in particular areas to inform customers where the goods
or services originate.”). The requirement for a disclaimer of AMERICAN OUTDOOR
BRANDS CORPORATION in Applicant’s Group I applications is affirmed.
IV. Acquired Distinctiveness
Applicant argues in the alternative that the literal element of its mark is entitled
to registration under Section 2(f) of the Trademark Act because it “has become
distinctive.” In other words, Applicant argues, “in the minds of the public, the primary
significance of [the term] is to identify the source” of Applicant’s goods and services.
15 U.S.C. § 1052(f); Royal Crown Co. v. The Coca-Cola Co., 892 F.3d 1358, 127
USPQ2d 1041, 1045 (Fed. Cir. 2018) (citation omitted). Applicant bears the burden
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

32
of establishing acquired distinctiveness. In re La. Fish Fry Prods., Ltd., 797 F.3d
1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015).
“Where a mark sits on a sliding scale of descriptiveness impacts the burden a
proposed registrant must bear with respect to its claim of acquired distinctiveness.”
Royal Crown, 127 USPQ2d at 1045. Indeed, “the applicant’s burden of showing
acquired distinctiveness increases with the level of descriptiveness; a more
descriptive term requires more evidence of secondary meaning.” In re
Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1424 (citing In re Bongrain
Intern. (Am.) Corp., 894 F.2d 1316, 13 USPQ2d 1727 (Fed. Cir. 1990)). Therefore, we
“must first determine whether the proposed mark is highly descriptive rather than
merely descriptive.” Royal Crown, 127 USPQ2d at 1045.
Here, based on the evidence of record, and as discussed above, AMERICAN
OUTDOOR BRANDS CORPORATION is highly geographically descriptive, as it
identifies the geographic origin of the goods and services offered by Applicant’s
outdoor brands. Indeed, Applicant is a United States company comprised of outdoor
brands. Because the literal element of Applicant’s mark is so highly geographically
descriptive, Applicant’s burden to show acquired distinctiveness is “concomitantly
high.” In re Steelbuilding, 75 USPQ2d at 1424.
In assessing whether Applicant has met its heavy burden of establishing acquired
distinctiveness, we consider any evidence bearing on: “(1) association of the
trade[mark] with a particular source by actual purchasers (typically measured by
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

33
customer surveys); (2) length, degree, and exclusivity of use; (3) amount and manner
of advertising; (4) amount of sales and number of customers; (5) intentional copying;
and (6) unsolicited media coverage of the product embodying the mark.” In re
Snowizard, Inc., 129 USPQ2d 1001, 1005 (TTAB 2018) (quoting Converse, Inc. v. Int'l
Trade Comm'n, 907 F.3d 1361, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018)).
Applicant’s evidence of acquired distinctiveness is sparse. It consists of the
Declaration of Elizabeth A. Sharp, its Vice President of Investor Relations, who
testifies that Applicant’s involved mark “has acquired distinctiveness for financial
information services and for shareholder and investor relations services.”
March 27, 2018 Request for Reconsideration TSDR 94 (Sharp Dec. ¶ 3) (emphasis
added). This testimony is not probative, because “financial information services” and
“shareholder and investor relations services” are not at issue here. In fact, all 18 of
the Group I applications identify traditional outdoor products and services; none
identify financial information or shareholder and investor relations services.
Applicant has not introduced any evidence that AMERICAN OUTDOOR BRANDS
CORPORATION has acquired distinctiveness for the outdoor goods and services
specifically identified in the involved applications.
Nevertheless, Applicant relies on the following evidence in support of its claim of
acquired distinctiveness:
Ms. Sharp’s testimony that Applicant’s mark is “well
known among the consuming and investing public” for
financial information and shareholder and investor
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

34
relations services, and that Applicant has used its mark
since January 1, 2017 to identify and promote the
company, its corporate identity, its financial information,
and its shareholder and investor relations services.” Id. at
94-95 (Sharp Dec. ¶¶ 3-4, 7).

Applicant has invested “more than $450,000 to advertise,
promote, and develop” Applicant’s brand and mark and
associate it with Applicant, “and its corporate identity, its
financial information, and its shareholder and investor
relations services.” Id. at 95 (Sharp Dec. ¶ 5).

“Between January 1, 2017 and January 31, 2018,
[Applicant’s] revenue exceeded $400 million.” Id. (Sharp
Dec. ¶ 6).

Several news articles, including in the Chicago Tribune,
Forbes, NPR’s website, San Diego Union-Tribune, USA
Today and Wall Street Journal reporting on Applicant’s
name change to AMERICAN OUTDOOR BRANDS
CORPORATION. Id. at 27-55.

The evidence is not persuasive.
All of the involved applications are based on an intent to use the mark in
commerce rather than actual use. Typically, as Applicant itself points out, “an intent-
to-use applicant cannot rely on acquired distinctiveness as a basis for registration
because acquired distinctiveness presumes that the public has had an opportunity to
encounter the mark on products or services sold in interstate commerce.” 16
TTABVUE 16 (Applicant’s Appeal Brief at 12); see also In re Olin Corp., 124 USPQ2d
1327, 1333 (TTAB 2017) (“A claim of distinctiveness under Section 2(f) normally is
not raised in a Section 1(b) application before the applicant files an amendment to
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
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87305157, 87305158, 87305159, 87305162 and 87305163

35
allege use or a statement of use because a claim of acquired distinctiveness, by
definition, requires prior use.”).
Applicant relies, however, on what it calls an “exception” which allows an intent
to use applicant to establish a prima facie case of acquired distinctiveness “where it
can show that [the] same mark acquired distinctiveness for sufficiently similar or
related goods, and that this acquired distinctiveness will transfer to the goods
specified in the application when the mark is used in connection with them.” In re
Olin, 124 USPQ2d at 1333 (citing, among others, In re Dial-A-Mattress Operating
Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)).
This is a difficult showing to make. In fact, “by the very nature of the inquiry,
Section 1(b) applicants face a heavy burden in establishing that their mark will
acquire distinctiveness when use commences. Accordingly, the required showing for
acquired distinctiveness to ‘transfer’ to new products is a rigorous one.” Id. at 1335
(emphasis added). More specifically, Applicant must establish that the financial
information and shareholder and investor relations services for which the literal
portion of Applicant’s mark has allegedly acquired distinctiveness are “sufficiently
similar or related” to the goods and services in the involved applications. In re Olin,
124 USPQ2d at 1334; In re Rogers, 53 USPQ2d 1741, 1744 (TTAB 1999) (“applicant
must establish, through submission of relevant evidence rather than mere
conjecture, a sufficient relationship between the goods or services in connection
with which the mark has acquired distinctiveness and the goods or services recited
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

36
in the intent-to-use application to warrant the conclusion that the previously created
distinctiveness will transfer to the goods or services in the application upon use”)
(emphasis added). In its attempt to meet its high burden,10 Applicant may seek to
rely on: prior registrations for the same mark; five years of substantially exclusive
and continuous use of its mark in commerce; or other evidence “showing duration,
extent, and nature of the use in commerce and advertising expenditures in connection
therewith (identifying types of media and attaching typical advertisements) ….”
Trademark Rule 2.41(a), 37 C.F.R. § 2.41(a).
Here, while Applicant owns Registration No. 5487449 for its mountain and stream
design alone ( ), as the Examining Attorney points out, “this would not be
a suitable basis for the applicant’s Section 2(f) assertion since the wording of the mark
is at issue” and the cited registration does not include the same wording (or any
wording at all). 18 TTABVUE 20-21; see generally In re Binion, 93 USPQ2d 1531,
1539 (TTAB 2009) (failure to show that BINION and BINION’S are the “same mark”
as previously-registered marks JACK BINION and JACK BINION’S renders those
registrations incompetent to establish the transfer of acquired distinctiveness).
Further, given the highly geographically descriptive nature of the wording in
question, and the “rigorous” showing Applicant must make to show that any alleged

10 Applicant’s burden is high both because it is seeking to transfer alleged acquired
distinctiveness, and because the literal portion of its mark is so highly descriptive.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

37
acquired distinctiveness transfers to the new goods and services, five years of
substantially exclusive use would not be enough to meet Applicant’s high burden. See
In re Ennco Display Systems, Inc., 56 USPQ2d 1279, 1286 (TTAB 2000) (while the
Board may consider evidence of continuous use for more than five years, “the
language of the statute is permissive, and the weight to be accorded this kind of
evidence depends on the facts and circumstances of the particular case”). More to the
point, both the design and literal components of Applicant’s mark, and the mark in
its entirety, have only been in use since 2017, which is less than five years in any
event. Therefore, Applicant may only rely on, and we now turn to consider,
Applicant’s “other evidence” of acquired distinctiveness. Trademark Rule 2.41(a)(3),
37 C.F.R. § 2.41(a)(3).
Applicant’s “other evidence” of acquired distinctiveness is not persuasive. The
overwhelming majority of Ms. Sharp’s testimony and all of the other evidence is
related to financial information and shareholder and investor relations services,
which are not identified in any of the Group I applications. More importantly, there
is no evidence whatsoever that financial information or shareholder and investor
relations services are related in any way to the outdoor products and services
identified in the involved applications. We perceive no relationship between retail
services and goods related to camping, climbing, hunting, fishing and firearms on the
one hand and financial information or shareholder and investor relations on the
other. See generally Bausch & Lomb Inc. v. Leupold & Stevens Inc., 6 USPQ2d 1475,
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

38
1478 (TTAB 1988) (“Applicant’s almost total reliance on the distinctiveness which its
gold ring device has achieved vis-à-vis rifle scopes and handgun scopes is simply not
sufficient by itself to establish that the same gold ring device has become distinctive
vis-à-vis binoculars and spotting scopes.”). Therefore, Applicant has not established
that any acquired distinctiveness of the literal portion of its involved mark for any
goods or services will transfer to Applicant’s new outdoor-focused goods and services.
Applicant’s evidence of acquired distinctiveness is not probative or persuasive for
other reasons. First, while Applicant’s revenue between 2017-2018 is impressive by
any measure, it is not tied in any way to the literal portion of Applicant’s mark, or to
the outdoor goods and services identified in the involved applications. In fact, the
record establishes that Applicant is a holding company, which owns a number of
brands, and that many of Applicant’s goods and services are sold under those various
brands, which are completely different than AMERICAN OUTDOOR BRANDS
CORPORATION or .
For example, the Chicago Tribune article about Applicant’s name change states
that the “change only affects the holding company, not the brand name of its guns,”
which will remain SMITH & WESSON. March 27, 2018 Request for Reconsideration
TSDR 33; see also id. at 42 (Wall Street Journal article stating “Next month, the
nation’s largest gun maker will ask shareholders to approve changing the name of its
holding company to American Outdoor Brands Corp., though it will continue to use
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

39
Smith & Wesson for its best-selling handguns.”) and 52 (Head Down News article
stating “The S&W name will remain on all of their guns, so it’s not like they’re
changing that.”). Applicant introduced a Seeking Alpha article focusing on Applicant,
“the owner of the iconic brand Smith & Wesson and newer noted brands such as
Crimson Trace, Thompson Center, and Bubba Blade.” 8 TTABVUE 14
(emphasis added). Applicant also introduced a MassLive article about Applicant’s
acquisition of LaserLyte, which quotes the president of the “Electro-Optics
Division of American Outdoor Brands and Crimson Trace Corp.” as saying
“We are excited to add the LaserLyte brand and product lines to our existing
lineup of Crimson Trace laser sights, tactical lights, and optics.” Id. at 18
(emphasis added). Finally, in its Appeal Brief, Applicant states that it “sought a new
name and identity that invoked both the spirit of its historical roots and its
adventure-seeking consumers, and that was autonomous from each individual
brand.” 16 TTAB 12 (emphasis added).
Second, Applicant’s advertising expenses, while not insignificant, are not
explained or detailed sufficiently to be probative. It is unclear when or over what time
period Applicant spent the $450,000. There is no indication which specific goods or
services were promoted via the advertising, if any. Ms. Sharp indicates only that the
money was spent to associate the involved mark with Applicant, “its corporate
identity, its financial information, and its and (sic) shareholder and investor relations
services.” Id. at 95 (Sharp Dec. ¶ 5). In presenting its limited evidence regarding its
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

40
advertising, Applicant failed to comply with Trademark Rule 2.41(a)(3), because it
did not identify the “types of media” in which Applicant advertised, or attach “typical
advertisements,” compounding and highlighting the problem.
Finally, Applicant makes much of an individual’s registration of the domain
names “americanoutdoorbrands.org” and “americanoutdoorbrands.net” one day after
Applicant announced its adoption of the name AMERICAN OUTDOOR BRANDS
CORPORATION. The individual attempted to sell the names to Applicant, following
which Applicant filed a complaint under the Uniform Domain Name Dispute
Resolution Policy. “Shortly after the complaint was filed, the infringer transferred
the domain names to” Applicant. 16 TTABVUE 18. This does not weigh in favor of
finding acquired distinctiveness. As Applicant indicates, the individual registered the
names one day after Applicant announced it was adopting the literal portion of its
involved mark. Obviously, the name AMERICAN OUTDOOR BRANDS
CORPORATION did not acquire distinctiveness in a single day, and of course there
is no evidence so indicating.11
Rather, the most generous view of the alleged infringer’s registration of the
domain names is that the infringer anticipated that the names could become

11 During prosecution, Applicant took the bold but curious position that the mere
announcement of its name change resulted in the immediate acquisition of distinctiveness.
March 27, 2018 Request for Reconsideration TSDR 13 (“With a single announcement, the
AMERICAN OUTDOOR BRANDS CORPORATION mark saturated the collective
consciousness of consumers.”).
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

41
valuable, or that they were already valuable based on anticipated public recognition
in the future. But that does not establish acquired distinctiveness at the time the
names were registered, or even at any point in the future, much less for the specific
goods and services identified in the involved applications. Even if it did, the view of a
single individual about the value of the name would not be persuasive.12
In short, Applicant has not met its heavy burden of establishing acquired
distinctiveness.
V. Conclusion
Because the literal portion of Applicant’s mark is primarily geographically
descriptive of the provider of Applicant’s goods and services, and the goods and
services themselves, and because Applicant has not established its alternative claim
of acquired distinctiveness, registration is refused unless Applicant provides a
disclaimer of the literal portion of its mark in each application.

Decision: The refusals to register absent a disclaimer of the literal portion
Applicant’s mark are affirmed. However, if Applicant submits a disclaimer of

12 Applicant’s evidence that there have been a large number of unique visitors to its website
between January 2018 and April 2019, 8 TTABVUE 24-52, is unpersuasive. There is no
indication which specific pages were visited, whether any outdoor products or services were
displayed on those pages or even whether or how the pages displayed AMERICAN
OUTDOOR BRANDS CORPORATION, much less whether visitors associate the literal
portion of Applicant’s mark with the source of Applicant’s identified outdoor goods and
services.
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

42
“AMERICAN OUTDOOR BRANDS CORPORATION” to the Board within thirty
days, the requirements for the disclaimer will have been met and the applications
will proceed. Trademark Rule 2.142(g), 37 C.F.R. § 2.142(g); TRADEMARK TRIAL AND
APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1218 (2019). The disclaimers should
read as follows: “No claim is made to the exclusive right to use AMERICAN
OUTDOOR BRANDS CORPORATION apart from the mark as shown.”

Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

43
APPENDIX
Serial
No.
Goods Serial
No.
Goods
87305138 solid fire starters; tinder;
fuel products for stoves,
namely, solid fuel tablets in
International Class 4
87305140 first aid kits in International
Class 5
87305141 handcuffs; carabiner clips
made of metal; metal locks;
metal hardware, namely,
carabiner clips of metal;
metal tent stakes in
International Class 6
87305142 chainsaws, power-operated
saws, and replacement parts
therefor in International
Class 7
87305143 sportsmens' folding
trowels; knives, namely,
tactical knives, hunting
knives, fishing knives,
sport knives, pocket knives,
and knives for hobby use;
leather sheaths for knives;
hand tools for repair,
maintenance, and cleaning
of firearms, namely,
hammers, punches, forend
wrenches, torque
wrenches, bore guides,
brushes, and multi-
function hand tools
comprised of torque
wrenches, bit drivers for
hand tools, and holders for
hand drill bits; multi-
function hand tools
comprised of knives and
hand-operated can openers;
non-electric can openers;
fishing line cutters; fishing
tackle pliers; fish forks; fish
scalers; fish scoops; fish
tape for pulling cables;
87305144 telescopic gun sights for
firearms containing lasers;
telescopic sights for firearms;
tactical laser sights for
firearms; tactical laser sights;
tactical laser sights sold
together as a unit with
illuminators in the nature of
lights for firearms; eyewear;
eyeglasses, including safety
glasses, shooting glasses, and
sunglasses; protective
eyewear; protective ear
covering shields for hearing
protection; optical devices for
firearms, namely, gun scopes;
signaling mirrors; directional
compasses; flashing and
steady safety lights; marine
compasses; optical apparatus,
namely, a non-lethal security
device that uses a light source
to detect, warn, repel,
temporarily blind, disorient,
nauseate, disable, confuse,
debilitate, stun, subdue, stop,
or incapacitate persons or
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

44
multitools, namely, multi-
function hand tools
comprised of pliers,
screwdrivers, cutting
blades, files, can openers,
cap lifter, awls, and wire
cutters; hatchets; hand
saws; scissors; shovels;
mallets being hand tools;
tweezers in International
Class 8
animals; portable LED safety
lighting devices for personal
use for safety purposes; power
adapters; power supply
connectors and adaptors for
use with portable electronic
devices; safety equipment,
namely, a lifeline system for
horizontal or vertical
movement to which a worker
is attached for protection
against fall hazards,
composed of carabiners and
paracords; safety equipment,
namely, beacon lights; signal
bells; signal whistles;
warning flags; weighing
scales; media transfer
magnets; accessories for
binoculars, firearm scopes,
and cameras, namely, mounts
and rests; ammunition
loading and reloading
equipment, namely,
micrometers and reloading
caliper; hand-operated
gunsmithing tools, namely,
firearm scope levelers;
electric pocket warmers in
International Class 9
87305145 flashlights; lighting
products, namely, portable
flashlights that are
rechargeable via USB;
flashing strobe light
apparatus; lamps for
outdoor use; lanterns for
lighting; LED lighting
fixtures; outdoor portable
lighting products, namely,
headlamps; pocket search
87305146 Camping trailers in
International Class 12
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

45
lights; portable battery-
operated lights that can be
placed on surfaces where
other light sources are
unavailable; searchlights;
spot lights; non-electric
pocket warmers, namely,
chemically-activated
heating packets for
warming hands; chemically
activated light sticks;
folding gas stoves; portable
showers in International
Class 11
87305147 Firearms and component
parts thereof; BB guns;
pellet guns; starter pistols;
airsoft guns for training
purposes; airsoft guns not
for recreational use;
firearm slings; firearm
tactical cases; cases for
firearms; range bags
especially adapted to carry
firearms and munitions to
gun ranges; ammunition
for firearms; ammunition
for muzzle-loading
firearms; holders, and
pouches for ammunition
and shooting accessories;
holsters; sprays for
personal defense purposes;
cleaning implements for
firearms, namely, brushes,
rods, pull-throughs, closer
cups, shell extractors,
decappers, bores, chamber
mops, gun vises, slotted
tips, and dummy
ammunition, namely, snap
87305151 flip books; printed guides for
clouds and knot tying;
waterproof paper; quick
reference pocket guides in the
fields of venomous snakes and
insects, animal tracking, fire
building, first aid, cooking,
paracord usage, shelter
building, star gazing, survival
fishing, and way finding in
International Class 16
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

46
caps and cleaning patches;
protective metal coating,
sold as a component part of
firearms; monopods for
firearms; bipods for
firearms; tripods for
firearms; firearm
attachments, namely,
mounts for use with
monopods, bipods and
tripods; accessories for non-
telescopic firearm sights,
namely, mounts and rests;
ammunition loading and
reloading equipment,
namely, cartridge gages,
tumblers, vibratory devices
that clean cartridges after
firing, gun powder
measures and priming
pins; component parts for
gun reloading tumblers,
namely, tumbler nuts and
tumbler bowls; case
cleaning media, namely,
gun cleaning cloth; media
separators; sifters in the
nature of mesh strainers
specially adapted for
sorting and separating
ammunition components
from foreign matter;
portable reloading stands
for firearms; powder
funnels for firearms; bullet
pullers; primer tube fillers;
ammunition boxes;
reloading trays for
firearms; firearm gunstock
supplies, namely, firearm
gunstock bedding kits
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

47
comprising epoxy resin,
hardener, dye, mixing cups,
applicators, modeling clay
and surgical tubing;
firearm gunstock recoil pad
installation kits comprising
work fixtures, namely, a
base for mounting securely
to a table or other larger
fixed surface and mounting
bars; firearm gunstock
inletting black for use in
detecting imperfections of
fit between gunstocks and
firearm barrel; firearm
gunstock- making
hardware comprising butt
plates, forend tips and grip
caps; bore lapping kits
comprising abrasive pastes
and steel plates, for use
exclusively with firearms
and firearm scope ring
alignment; bolt face lap
tools used for squaring the
bolt face of bolt-action
rifles; receiver face truing
tools used for squaring the
face of a rifle receiver to the
barrel shoulder; receiver
taps used to install new
firearm barrels in
International Class 13
87305154 survival kits comprising
signal whistles, directional
compasses, signaling
mirrors, blankets for
outdoor use, towels,
bandanas, ponchos,
bandages for dressing,
gauze pads, solid fire
87305155 plastic key chains; tool and
tool accessory boxes not made
of metal sold empty; furniture
for camping; inflatable
mattresses for use when
camping; inflatable chairs;
non-metal tent stakes; plastic
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

48
starters, tinder,
chemically-activated light
sticks, plastic tape for use
in the field of outdoor
camping and survival,
lanyards for safety
purposes for fall protection,
carabiners of metal, food
rationing bars in the
nature of ready to eat, food
derived food bars in
International Class 9

and

all-purpose carrying bags
for sporting and outdoor
purposes, namely, carrying
bags and gear bags; dry
bags; duffle bags; day
backpacks; messenger
bags; backpacks; attaché
cases; shoulder haul bags;
equipment bags, namely,
all purpose sport bags;
travel bags; sling bags;
clutch bags in
International Class 10

cases in International Class
20
87305156 camping grills; portable
pots and pans for camping;
bottle openers; mugs; cups;
water bottles sold empty;
collapsible bowls; cutting
boards; cutlery; household
utensils, namely, spatulas;
camping grills; insulating
flasks in International
Class 21
87305157 bags for securing valuables;
bags for securing paracords;
tents for mountaineering or
camping; hammocks;
clothesline; rubber tie downs;
elastic cords; unfitted tarps in
International Class 22
87305158 sleeping bags for camping;
tablecloths, not of paper;
87305159 clothing, namely, t-shirts and
sweatshirts; footwear; belts;
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

49
towels; mosquito nets in
International Class 24
caps being headwear; hats;
visors; ponchos; rain suits in
International Class 25
87305162 airsoft guns for
recreational purposes;
targets and target stands;
fishing equipment, namely,
fishing lures, fishing
leaders, fishing hooks,
fishing spinners, fishing
plugs, fishing flies, fishing
buoys, fishing poles, fishing
gaffs, fishing sinkers,
fishing creels, fishing
tackle, fishing reels, fishing
rods, fishing lines, fishing
floats, fishing weights,
fishing lure boxes, fishing
tackle containers, fishing
safety harness, fishing rod
holders, fishing rod
handles, fishing rod blanks,
fishing fly boxes, fly fishing
stripper baskets, hand-held
fishing nets, fishing bait
holder, artificial fishing
bait, gut for fishing, spears
for use in fishing, fish
hooks, fish hook removers,
fishing clamps for use in
holding fish to remove fish
hooks, fish bite alarm and
strike indicator,
sportsman's fishing bags;
hunting blinds; hunting
stands; decoys for hunting
or fishing; electronic
animal calls for recreation
and hunting activities;
hunting equipment,
namely, scent dispenser for
87305163 on-line wholesale and retail
store services featuring a
complete line of key chains
with a purpose; on-line retail
store services featuring
survival products, namely,
life rafts, personal flotation
devices, flashlights, strobe
lights, first aid kits, whistles,
blankets, signal flags,
reflective tape, emergency
flares and warning lights, fire
starting tools, stoves,
dehydrated meals ready to
eat, LED lighting, navigation
devices, paracords, protective
gear, hand-held multi-tools,
marine lights, survival kits,
signal mirrors, saws, shovels,
cutting-tools, knives, knife
sharpeners, protective gear,
tents, and camping
equipment; Customer loyalty
services in the nature of
conducting incentive award
programs to promote
customer loyalty for
commercial, promotional
and/or advertising purposes
in International Class 35
Serial Nos. 87305138, 87305140, 87305141, 87305142, 87305143, 87305144,
87305145, 87305146, 87305147, 87305151, 87305154, 87305155, 87305156,
87305157, 87305158, 87305159, 87305162 and 87305163

50
attracting or repelling
animals in International
Class 28