Bedgear LLC

Trademark Trial and Appeal Board

Jan 5, 2017

No. 86315742 (T.T.A.B. Jan. 5, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: January 5, 2017
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Bedgear LLC
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Serial Nos. 86315742 and 863157521
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Leo G. Lenna of Sorell Lenna & Schmidt LLP,
for Bedgear LLC

Jennifer Button, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
_____
Before Mermelstein, Adlin and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

1 Because the cases share common questions of fact and of law, and the relevant portions of
the records are largely identical, the appeals are hereby consolidated. See, e.g., In re
Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012) (consolidating two appeals sua sponte).
The TTABVUE and TSDR citations herein include in parentheses the serial number of the
case to which the citation pertains.
Serial Nos. 86315742 & 86315752
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I. Background
In Application Serial No. 86315752, Bedgear LLC (“Applicant”) seeks
registration on the Principal Register of the proposed mark CFM in standard
characters for “Mattress toppers that have been tested under a rating system for
rating air permeability performance” in International Class 20 and “Home textile
fabrics, namely, blankets, sheets, duvets, comforters, mattress protectors, namely,
covers, mattress covers, pillow protectors, namely, cases, pillow covers, crib
mattress protectors, namely, covers, crib mattress covers and crib sheets that have
been tested under a rating system for rating air permeability performance” in
International Class 24. In Application Serial No. 86315742, Applicant seeks
registration on the Principal Register of the proposed mark CFM in standard
characters for “Mattresses, mattress toppers, and pillows that have been tested
under a rating system for rating air permeability performance” in International
Class 20 and “Comforters that have been tested under a rating system for rating air
permeability performance” in International Class 24. 2
In both cases, the Trademark Examining Attorney refused registration of
Applicant’s proposed mark under Section 2(e)(1), 15 U.S.C. § 1052(e)(1), as merely
descriptive of the identified goods. The Examining Attorney also issued refusals in
both cases on the ground that the proposed trademark fails to function as such,

2 Application Serial Nos. 86315752 and 86315742 were filed on June 20, 2014, based on use
of the proposed mark in commerce under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a).
Serial Nos. 86315742 & 86315752
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because, as used on the specimens of record, CFM is merely informational matter
pursuant to Trademark Act Sections 1, 2 and 45, 15 U.S.C. §§ 1051-1052, 1127.
After the Trademark Examining Attorney made the refusals final, Applicant
requested reconsideration and appealed to this Board in each case. On remand, the
Examining Attorney denied the requests for reconsideration. The appeals resumed
and are fully briefed. We affirm the refusals to register.
II. Descriptiveness
Section 2(e)(1) of the Trademark Act precludes registration of a mark which,
“when used on or in connection with the goods of the applicant is merely descriptive
. . . of them.” 15 U.S.C. § 1052(e)(1). A term is merely descriptive within the
meaning of Section 2(e)(1) “if it immediately conveys knowledge of a quality,
feature, function, or characteristic of the goods or services with which it is used.” In
re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012) (quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007)); see also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574,
1575 (Fed. Cir. 2015).
We consider whether someone familiar with the identified goods will understand
the mark to convey information about them, rather than whether someone
presented only with the mark could guess the products or activities listed in the
description of goods or services. DuoProSS Meditech Corp. v. Inviro Med. Devices
Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re Abcor Dev.
Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d
Serial Nos. 86315742 & 86315752
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1222, 1224 (TTAB 2002). Descriptiveness must be assessed “in relation to the goods
for which registration is sought, the context in which it is being used, and the
possible significance that the term would have to the average purchaser of the goods
because of the manner of its use or intended use.” Bayer Aktiengesellschaft,
82 USPQ2d at 1831 (citing Abcor Dev., 200 USPQ at 218).
Applicant’s goods include mattresses, mattress toppers, comforters, and a
variety of other home textile fabrics. Applicant initially stated in responses to
information requirements that CFM “has no significance in relation to the
applicant’s goods or in the relevant trade.”3 However, the record includes a
dictionary entry for CFM indicating that it is an abbreviation for “cubic feet per
minute.”4 Applicant later acknowledged that CFM is an acronym for “cubic feet per
minute,” taking the position that it is a unit of measurement, “commonly used by
manufacturers of blowers and compressors,” but “not commonly associated with
bedding or bedding products.”5 According to Applicant, “the main function of the
goods of the present application[s] does not involve the movement of air but instead
the natural flow of air through the goods.”6 Applicant therefore claims its use is
distinct as “a source of a rating system for bedding products.”7

3 February 20, 2015 Response to Office Action at 1 (SN 86315752 & 86315742).
4 May 13, 2015 Office Action at 2 (SN 86315752 & 86315742).
5 7 TTABVUE 3 (Applicant’s Brief) (SN 86315752 & 86315742).
6 November 13, 2015 Response to Office Action at 3 (SN 86315752 & 86315742).
7 Id. at 2.
Serial Nos. 86315742 & 86315752
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However, the Examining Attorney submitted evidence that others in the
relevant industry do use CFM or “cubic feet per minute” to refer to a measurement
of air permeability of fabrics. For example, the record includes the following:
• The website glossary of Pacific Coast Feather Company defines CFM: “Cubic
feet per minute per square meter (CFM) is a measure of the air permeability
of a fabric. The higher the CFM, the greater the volume of air passing
through. While the industry standard for air permeability is a CFM rating
less than 10, Pacific Coast® Barrier WeaveTM fabric has a rating of less than 5
CFM.8
• The website “Glossary of Mattress Terms” of defines Air
Flow as “Amount of air expressed in cubic feet per minute that can be drawn
through a foam sample.”9

• The website of Mattress To Go contains a “Glossary of Common Mattress
Terms” that includes an entry for Air Flow as “Amount of air expressed in
cubic feet per minute (cfm), that can be drawn through a 2” x 2” x 1” FPF
sample at .5-inch water pressure differential. A cfm of 2.0 and above is
considered good for flexible polyurethane foam.”10

• The webpage of a certifier of mattress retailers, Diamond Certified, includes
a “Glossary of Terms for Customers of New Mattress Stores” with an entry
stating “Air flow is a measure of how much air can pass through a foam layer.
It is usually defined in cubic feet per minute.”11

• A U.S. Patent Application, 20150296995 A1, for “[a] foam mattress in which a
layer of latex or latex-like foam placed above a layer of memory foam is
described,” in which various dependent claims include the limitation that the
foam layer has a particular “airflow” of a certain amount of “cubic feet per
minute.”12 The specification further states “Airflow is a measure of the air
permeability of a foam and is measured in cubic feet per minute (cfm).”13

8 May 13, 2015 Office Action at 11 (pcf.com) (SN 86315752 & 86315742).
9 December 4, 2015 Office Action at 2 (backtobed.com) (SN 86315752 & 86315742).
10 Id. at 11 (matt-to-go.com).
11 Id. at 37, 41 (diamondcertified.org).
12 Id. at 19, 21-25 (google.com/patents).
13 Id. at 28 (google.com/patents).
Serial Nos. 86315742 & 86315752
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Applicant’s own specimens and product information evidence reflect usage
consistent with these third-party uses. Excerpts appear below,14 stating “What’s
CFM? CUBIC FEET PER MINUTE (CFM) IS A MEASUREMENT OF THE
VELOCITY AT WHICH AIR FLOWS INTO OR OUT OF A SPACE. IT’S A UNIT
OF AIR FLOW INDICATING HOW MUCH AIR CAN MOVE PER MINUTE.” They
demonstrate that the rating system referred to in Applicant’s identifications
consists of assigning a number between 1 and 5 based on the air flow range
measured in CFM, or cubic feet per minute.

14 The excerpts come from the February 20, 2015 Response to Office Action at 2-4 in both
application files.
Serial Nos. 86315742 & 86315752
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Serial Nos. 86315742 & 86315752
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The third-party evidence and Applicant’s own specimens and product
information convincingly refute its argument that the term CFM used on its goods
“requires the consumer to use their imagination to identify this characteristic.”15
Rather than requiring consumer imagination, the evidence shows that consumers
come across CFM as an established term in the industry to describe – in particular
amounts – the permeability of mattresses and bedding products such as Applicant’s.
Regardless, even if Applicant’s assertion were correct that its use CFM for these
types of goods is novel or unusual, this does not justify registration where the
significance of the term is merely descriptive. In re Nat’l Shooting Sports Found.,
Inc., 219 USPQ 1018, 1020 (TTAB 1983).
Applicant contends that three other marks consisting of the term CFM have
been registered for other goods or services “that evoke air flow,” and therefore its

15 7 TTABVUE 3 (SN 86315752 & 86315742) (Applicant’s Brief).
Serial Nos. 86315742 & 86315752
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CFM marks should also be registrable. Applicant merely listed third-party marks,
registrations numbers and goods/services but failed to submit the registration
records upon which it relies, as is required,16 but the Examining Attorney neither
objected to the argument nor advised Applicant of the need to submit the records
and thereby waived any objection to consideration of the listing. See In re City of
Houston, 101 USPQ2d 1534, 1536 (TTAB 2012), aff’d 731 F.3d 1326, 108 USPQ2d
1226 (Fed. Cir. 2013) (“[T]he examining attorney’s failure to advise applicant of the
insufficiency of the list of registrations when it was proffered during examination
constituted a waiver of any objection to consideration of that list”). Nonetheless, we
find the listing of three third-party registrations to have little probative value, in
part because none include the same or similar goods as those in the applications at
issue, and we do not find persuasive Applicant’s unsupported assertions that the
goods and services are analogous. We consider descriptiveness in relation to the
relevant goods. DuoProSS Meditech 103 USPQ2d at 1757. Regardless, each case
must be decided on its own record, and we are not bound by the prior registrations.
See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)
(“Even if some prior registrations had some characteristics similar to [applicant’s]
application, the PTO’s allowance of such prior registrations does not bind the board
or this court.”).

16 “To make a third-party registration of record, a copy of the registration, either a copy of
the paper Office record, or a copy taken from the electronic records of the Office, should be
submitted during prosecution/examination of the application. Mere listings of registrations
are not sufficient to make the registrations of record.” In re Star Belly Stitcher, 107
USPQ2d 2059, 2064 (TTAB 2013) (citations omitted).
Serial Nos. 86315742 & 86315752
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In this case, the third-party evidence discussed above demonstrates that CFM
has a well-recognized meaning in the relevant industry. Consumers would
immediately understand CFM, when used in connection with Applicant’s identified
goods, to describe a key feature – the degree of air permeability of its goods. See In
re Analog Devices Inc., 6 USPQ2d 1808, 1810 (TTAB 1988), aff’d without pub. op.,
871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989) (if the mark is descriptive of any of
the goods or services for which registration is sought, it is proper to refuse
registration as to the entire class).
III. Informational
Next, we address the failure to function refusal. The descriptiveness and
informational refusals are not mutually exclusive. See In re AOP LLC, 107 USPQ2d
1644 (TTAB 2013). Applicant submitted specimens of use with its initial
applications, and later submitted substitute specimens, as well as product
information required by the Examining Attorney. We consider whether consumers
would perceive CFM as a mark.
Matter that is merely informational is not registrable as a mark. See id. (refusal
of AOP affirmed where the specimens “present the term in an informational manner
to inform consumers about a certification process rather than as a source
identifier”); In re T.S. Designs, Inc., 95 USPQ2d 1669 (TTAB 2010) (holding
CLOTHING FACTS merely informational and not a source identifier based on
likely consumer perception). The question, then, is whether consumers would view
the applied-for mark as source-identifying, or rather as simply conveying
Serial Nos. 86315742 & 86315752
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information. For this analysis, in addition to Applicant’s specimens, we also
consider the product information submitted by Applicant, as well as other evidence
in the record. See In re Eagle Crest, Inc., 96 USPQ2d 1227, 1230 (TTAB 2010)
(affirming informational refusal where third-party evidence showed widespread use
of the applied-for phrase and use on “applicant’s specimens as well as its other
materials would likely reinforce the perception” of the proposed mark as
informational).
Considering the record as a whole, we find that consumers would perceive
Applicant’s use of CFM on the specimens as a unit of air flow measurement with a
corresponding rating. They use CFM with numerical measurements, defined in
Applicant’s product information as “cubic feet per minute,” specifically, “a
measurement of the velocity at which air flows into and out of a space.” A table in
Applicant’s product information comparing its bedsheets to competitors’ sheets
contains a “CFM RATING” column containing specific measurements expressed in
“ft3/min.” A graphic titled “Air Flow Rating” shows ranges of CFM measurements,
such as “150-199 CFM” and “200-399 CFM” corresponding to a numerical rating of 1
to 5 shown in a circle design with “CFM Certified” underneath. On the third excerpt
above, which Applicant described as its product packaging, a Bedgear
“Temperature-Regulating” blanket appears in packaging that on the lower right
contains a sticker with a similar circle design with a large 5 in the center and CFM
at the top of the circle. As indicated on the product information, Applicant’s use of
CFM informs consumers that this blanket’s air flow rating of 5 equates to 800-1000
Serial Nos. 86315742 & 86315752
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CFM, or cubic feet per minute. The first excerpt above shows the same type of use of
CFM on a mattress topper package. In the specimens of record in both cases,
consumers would perceive CFM as a unit of measurement or rating of the
permeability of the bedding products, rather than as a source indicator. The third-
party evidence set out and discussed above demonstrates that the nature of
Applicant’s use is consistent with CFM as a measurement in the industry to express
permeability.
Applicant’s specimens present CFM in an informational manner to convey a
measurement or rating of air flow through fabric, rather than as a source identifier.
In short, it is likely to be perceived as informational.
Decision: The refusals to register Applicant’s proposed mark CFM as merely
descriptive and as merely informational are affirmed in both cases.