Fusion 360 Inc.

Trademark Trial and Appeal Board

Jun 24, 2020

88131491 (T.T.A.B. Jun. 24, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 24, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fusion 360, Inc.
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Serial No. 88131491
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Bret E. Field of Bozicevic, Field & Francis LLP,
for Fusion 360, Inc.
Robert Clark, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Ritchie, Kuczma, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Fusion 360, Inc. (“Applicant”) seeks registration on the Principal Register of the
proposed standard character mark BUD SET for goods identified as “Fertilizers;
plant foods; chemicals for use in agricultural and industry, namely, microbial
nutrient compositions, microbial compositions, bioremediation compositions, mineral
fertilizing preparations, and plant nutrient compositions,” in International Class 1.1

1 Application Serial No. 88131491 was filed on September 25, 2018 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce.
Serial No. 88131491
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The Examining Attorney has refused registration of the proposed mark under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that BUD
SET is merely descriptive of the goods. When the Examining Attorney made the
refusal final, Applicant requested reconsideration, which was denied, and appealed
to the Board. Applicant and the Examining Attorney have filed briefs.2 We affirm the
refusal to register.
I. Record on Appeal3
The record on appeal includes third-party Supplemental Register registrations of
marks containing the term BUD,4 and webpages containing articles from scientific
journals and other materials, including advertisements, in which the term “bud set”
appears.5 We also grant the Examining Attorney’s request in his brief, 14 TTABVUE
5 n.1, that we take judicial notice of definitions of the words “bud” and “set” from the

2 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited materials
appear.
3 Citations in this opinion to the application record, including the request for reconsideration
and its denial, are to pages in the Trademark Status & Document Retrieval (“TSDR”)
database of the United States Patent and Trademark Office (“USPTO”).
4 October 11, 2018 Office Action at TSDR 2-21.
5 Id. at TSDR 22-63; April 12, 2019 Final Office Action at TSDR 2-23; October 30, 2019 Denial
of Request for Reconsideration at TSDR 2-61. Applicant made no evidence of record during
prosecution. Applicant’s brief refers to the contents of three websites and lists hyperlinks to
them, 12 TTABVUE 8 n.3, but because Applicant did not make the websites of record, we
have given no consideration to Applicant’s related argument that the fact that its competitors
do not use the term BUD SET shows that the term “is not well-known or indicative of
fertilizers, plant food and the like.” Id. at 8. See In re ADCO Indus. — Techs., L.P., 2020
USPQ2d 53786, *2 (TTAB 2020) (“Web addresses or hyperlinks are not sufficient to make the
underlying webpages of record.”).
Serial No. 88131491
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MERRIAM-WEBSTER ONLINE DICTIONARY (merriam-webster.com). Id. at 14-28; 15
TTABVUE 2-11. See, e.g., In re Omniome, Inc., 2020 USPQ2d 3222, *2 n.17 (TTAB
2019). Applicant’s brief cites definitions of the words “fertilizer” and “set” from the
same dictionary, 12 TTABVUE 6 & nn.1-2, and although Applicant did not make
those definitions of record, or request that we judicially notice them, to the extent
that they are relevant to this decision, we take judicial notice of those definitions as
well.
II. Mere Descriptiveness Refusal
A. Applicant’s Prior Application Serial No. 85582688
Applicant’s current application is virtually identical to Application Serial No.
85582688, an intent-to-use application which Applicant filed in March 2012 to
register BUD SET in standard characters for “fertilizers; plant foods; chemicals for
use in agricultural and industry, namely, microbial nutrient compositions, microbial
compositions, bioremediation compositions, mineral fertilizing compositions, and
plant nutrient compositions” (the “Previous Application”).6 In re Fusion 360, Inc., 22
TTABVUE 1-2 (Serial No. 85582688) (TTAB Mar. 27, 2014) (the “2014 Decision”). The
Examining Attorney assigned to the current application also examined the Previous
Application, and, as here, refused registration on the ground that BUD SET was
merely descriptive of the goods. Applicant appealed the final refusal through the
same counsel who represents it on the current application and on this appeal. The

6 The only difference is that the goods identified in the current application as “mineral
fertilizing preparations” were identified in the Previous Application as “mineral fertilizing
compositions.”
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Board affirmed the refusal, finding that “we have no doubt that a consumer would
understand ‘bud set,’ used in connection with applicant’s goods, as directly conveying
information about them.” Id. at *7. Applicant did not appeal the 2014 Decision, and
the Previous Application was abandoned.
Under the doctrine of claim preclusion, “a judgment on the merits in a prior suit
bars a second suit involving the same parties or their privies based on the same cause
of action.” In re Bose Corp., 476 F.3d 1331, 81 USPQ2d 1748, 1752 (Fed. Cir. 2007)
(quotation and quotation marks omitted). We have applied claim preclusion in an ex
parte proceeding “where an applicant had already been refused registration for the
same mark and goods in a prior ex parte proceeding, and applicant did not
demonstrate a change of circumstances so as to justify not applying preclusion based
on the prior judgment.” In re Anderson, 101 USPQ2d 1912, 1916 (TTAB 2012). The
Federal Circuit has “warned that particular caution is warranted in the application
of [claim] preclusion by the [USPTO], for the purposes of administrative trademark
procedures include protecting both the consumer public and the purveyors,” Bose, 81
USPQ2d at 1752 (quoting Mayer/Berkshire Corp. v. Berkshire Fashions, Inc., 424
F.3d 1229, 76 USPQ2d 1310, 1314 (Fed. Cir. 2005)), and because the Examining
Attorney did not assert claim preclusion based on the 2014 Decision as a ground for
refusal of registration, we will not apply the doctrine on this appeal. Nevertheless,
because the 2014 Decision dealt with the same mark for the same goods and, as
discussed below, some of the same evidence as in this case, we will look to the 2014
Decision as persuasive authority in determining whether the Examining Attorney
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has again shown that the proposed BUD SET mark is merely descriptive of the
identified goods based on the record in this case.
B. Applicable Law
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of “a mark which, (1) when used on or in connection with the goods of the
applicant is merely descriptive . . . of them,” unless the mark has acquired
distinctiveness under Section 2(f) of the Act, 15 U.S.C. § 1052(f).7 “A term is deemed
to be merely descriptive of goods or services, within the meaning of Section 2(e)(1), if
it forthwith conveys an immediate idea of an ingredient, quality, characteristic,
feature, function, purpose or use of the goods or services.” In re Canine Caviar Pet
Foods, Inc., 126 USPQ2d 1590, 1598 (TTAB 2018) (citing In re Chamber of Commerce
of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)).
“A mark need not immediately convey an idea of each and every specific feature
of the goods in order to be considered merely descriptive; it is enough if it describes
one significant attribute, function or property of the goods.” In re Fat Boys Water
Sports LLC, 118 USPQ2d 1511, 1513 (TTAB 2016) (citing In re Gyulay, 820 F.2d 1216,
3 USPQ2d 1009, 1010 (Fed. Cir. 1987)). “Moreover, a mark need not be merely
descriptive of all recited goods or services in an application. A descriptiveness refusal
is proper if the mark is descriptive of any of the [goods] for which registration is

7 Like the Previous Application, the current application is based on intention to use the
proposed mark rather than use in commerce, and Applicant does not claim that if BUD SET
is found to be merely descriptive, it is registrable because it has acquired distinctiveness.
Serial No. 88131491
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sought.” Chamber of Commerce, 102 USPQ2d at 1219 (quoting In re Stereotaxis Inc.,
429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005)).
Whether a mark is merely descriptive is “evaluated ‘in relation to the particular
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,’” Chamber of Commerce, 102
USPQ2d at 1219 (quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed.
Cir. 2007)), and “not in the abstract or on the basis of guesswork.” Fat Boys, 118
USPQ2d at 1513 (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218
(CCPA 1978)). We ask “whether someone who knows what the goods and services are
will understand the mark to convey information about them.” Real Foods Pty Ltd. v.
Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018)
(quoting DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103
USPQ2d 1753, 1757 (Fed. Cir. 2012) (internal quotation omitted)). A mark is
suggestive rather than merely descriptive if it requires imagination, thought, and
perception on the part of someone who knows what the goods are to reach a conclusion
about their nature from the mark. See, e.g., Fat Boys, 118 USPQ2d at 1515.
Applicant’s proposed mark consists of the words BUD and SET. We “must consider
the commercial impression of a mark as a whole.” Real Foods, 128 USPQ2d at 1374
(quoting DuoProSS, 103 USPQ2d at 1757 (citation omitted)). “In considering [a] mark
as a whole, [we] ‘may not dissect the mark into isolated elements,’ without
‘consider[ing] . . . the entire mark,’” id. (quoting DuoProSS, 103 USPQ2d at 1757),
Serial No. 88131491
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but we “may weigh the individual components of the mark to determine the overall
impression or the descriptiveness of the mark and its various components.” Id.
(quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed.
Cir. 2004)). Indeed, we are “required to examine the meaning of each component
individually, and then determine whether the mark as a whole is merely descriptive.”
DuoProSS, 103 USPQ2d at 1758.
If the words in the proposed mark are individually descriptive of the identified
goods, we must then determine whether their combination “conveys any distinctive
source-identifying impression contrary to the descriptiveness of the individual parts.”
Fat Boys, 118 USPQ2d at 1515-16 (quoting Oppedahl & Larson, 71 USPQ2d at 1372).
If each word instead “retains its merely descriptive significance in relation to the
goods, the combination results in a composite that is itself merely descriptive.” Id. at
1516 (citing In re Tower Tech., Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002)); see also
In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1953-55 (TTAB 2018).
“Evidence of the public’s understanding of [a] term . . . may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listings in
dictionaries, trade journals, newspapers[,] and other publications.” Real Foods, 128
USPQ2d at 1374 (quoting Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127
USPQ2d 1041, 1046 (Fed. Cir. 2018)). See also Omniome, 2020 USPQ2d 3222, at *5
(cataloging sources of evidence of descriptiveness).
“It is the Examining Attorney’s burden to show, prima facie, that a mark is merely
descriptive of an applicant’s goods or services.” Fat Boys, 118 USPQ2d at 1513 (citing
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Gyulay, 3 USPQ2d at 1010). “If such a showing is made, the burden of rebuttal shifts
to the applicant.” Id. (citing In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1632
(Fed. Cir. 2003)).
C. Summary of Arguments
1. Applicant
Applicant argues that
the mark BUD SET is not merely descriptive of the goods
for at least the following reasons:
• BUD SET is not merely descriptive because it does
not describe a “significant function, attribute, or
property” of the claimed goods;
• The Examining Attorney’s web search results,
provided as evidence of the alleged connection
between the mark BUD SET and fertilizer, plant
food and the like, fail to demonstrate that BUD SET
represents a significant function or purpose of
fertilizer, plant food and the like but instead indicate
that BUD SET does not represent a significant
purpose of fertilizer, plant food and the like and
therefor is not merely descriptive;
• BUD SET is at most suggestive – and therefore not
merely descriptive – of the goods claimed because
“imagination, thought, or perception” are required to
connect the Applicant’s mark BUD SET with the
goods claimed; and
• Where there is doubt as to whether a mark is
descriptive, as there is with the instant mark BUD
SET, such doubt should be resolved in the
Applicant’s favor.
12 TTABVUE 4.
Applicant “submits that significant functions or purposes of fertilizers, plant
foods, plant nutrients and the like include improving crop yield, increasing the rate
Serial No. 88131491
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at which certain plants grow, promoting growth of certain plants over others,
influencing the appearance of plants, correcting soil mineral deficiencies, improving
long term soil viability, improving soil microbial health, and so forth,” id. at 6, but
that these purposes “fail to contemplate or refer to a ‘bud set,’ explicitly or implicitly.”
Id. Applicant acknowledges that the mark “BUD SET includes the constituent term
‘bud,’ which, in the context of plants, may refer to an intermediate stage in the
development of plant structures” and “also includes the constituent term ‘set,’ which
has many potential meanings but, in its noun form in the context of plants, may refer
to ‘a young plant or rooted cutting ready for transplanting.’” Id. Applicant argues,
however, that “[w]hile each term ‘bud’ and ‘set’ may refer to a plant or a plant
structure, they refer to just that, a static plant or a static plant structure, not plant
growth, crop yield or the other significant purposes of fertilizer, plant food or plant
nutrients described above.” Id. According to Applicant, “neither BUD SET, nor the
constituent terms, ‘bud’ and ‘set,’ are indicative of plant growth, a salient feature of
the significant purposes of the claimed goods,” because “plant growth is a rate or a
change, whereas BUD SET, and its constituent terms, at most might only refer to a
static structure of plant anatomy, not a rate or a change such as plant growth.” Id.
According to Applicant, “[e]ven if bud set were taken to relate to a desirable
intermediate stage of plant growth, it does not have the same meaning as an
economically successful crop because ‘benefit [to] a bud set’ does not directly affect
economic considerations.” Id. at 7.
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Applicant also argues that BUD SET is suggestive, not merely descriptive,
because “BUD SET is at best indirectly related to the goods claimed since a multi-
step thought process is required to link the mark BUD SET with the claimed goods.”
Id. at 11. Applicant contends that “the link between BUD SET or the constituent
terms ‘bud’ and ‘set’ and fertilizer would not be a direct, immediate connection, since
fertilizer is only one of many factors that might bring about the healthy conditions
for a bud to form on a plant,” id., and that “a multi-step thought process involving
considering a host of potential causes and conditions to link BUD SET with fertilizer
or plant food, one of the many potential causes for such development on a plant.” Id.
at 11-12. Applicant further argues that BUD SET is suggestive “because the singular
terms ‘bud’ and ‘set’ are not the typical or common way to refer to purposes of the
goods claimed,” id. at 13, and that the “distinctiveness of the term BUD SET, as
evidenced by its uncommon usage, should contribute to treating BUD SET not as
merely descriptive but instead as at most suggestive.” Id.
Applicant concludes by arguing that
to the extent there continues to be any doubt as to whether
the BUD SET mark is merely descriptive of the Applicant’s
services [sic], as there is here, the course of action
consistent with precedent is to pass the mark to publication
with the knowledge that if a party does believe it will be
damaged by the registration of Applicant’s mark, an
opposition proceeding can be brought and a more complete
record can be established.
Id. at 14.
Serial No. 88131491
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2. The Examining Attorney
The Examining Attorney argues that BUD SET is merely descriptive because it
“merely combines two descriptive elements to describe a characteristic, intended
purpose and use of the goods.” 14 TTABVUE 5. He points to dictionary definitions of
“bud” as “‘a small part that grows on a plant and develops into a flower, leaf, or new
branch,’” and “set” as “‘the condition of being set’ and ‘to cause (as fruit or seed) to
develop,’” id. (quoting MERRIAM-WEBSTER ONLINE DICTIONARY), and argues that
[t]aking these definitions together, it is clear that BUD
SET, when used in connection with “fertilizers; plant foods;
chemicals for use in agricultural and industry, namely,
microbial nutrient compositions, microbial compositions,
bioremediation compositions, mineral fertilizing
preparations, and plant nutrient compositions”, refers to a
stage in the growth of a plant when buds are formed. A
significant purpose of applicant’s goods is to enhance this
bud set.
Id. at 6.
The Examining Attorney cites the Internet materials in the record, id. at 6-7,
which he argues “describe[ ] the impact of different factors including fertilizer,
lengths of nights and genetics on bud set,” id. at 6, and “show use of the term ‘bud set’
to identify development of flower buds and the period when buds develop.” Id. at 7.
According to the Examining Attorney, a “significant purpose of applicant’s goods is to
enhance or promote this bud set,” such that the proposed mark BUD SET “must be
considered merely descriptive of applicant’s goods.” Id.
The Examining Attorney also cites four third-party Supplemental Register
registrations of the marks BIG BUD for plant growth nutrients, FAT BUD for
fertilizers, BUD BLOOM for plant nutrients, and BUD ORGANIC for organic plant
Serial No. 88131491
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nutrients, which he claims constitute “probative evidence on the issue of
descriptiveness . . . .” Id. at 8.
In response to Applicant’s suggestiveness arguments, the Examining Attorney
contends that “it is apparent that consumers would perceive ‘bud set,’ in relation to
applicant’s identified goods, as describing a function or purpose of them,” and that “it
requires no thought or mental gymnastics to understand that ‘bud set,’ when
referring to applicant’s goods, describes a feature highlighting the growth stage at
which applicant’s ‘fertilizers; plant foods’ or ‘chemicals’ may be applied, or perhaps
the growth stage that may be achieved when this is properly done.” Id. at 11-12.
The Examining Attorney concludes that BUD SET
is merely descriptive of applicant’s fertilizers; plant foods;
chemicals for use in agricultural and industry, namely,
microbial nutrient compositions, microbial compositions,
bioremediation compositions, mineral fertilizing
preparations, and plant nutrient compositions because the
mark identifies a significant use, purpose and
characteristic of these goods, namely, [sic] encourages
vigorous vegetative growth during bud set and leads to
more abundant buds.
Id. at 12.
D. Analysis of Refusal
Both words in the proposed mark have descriptive significance in the context of
the fertilizers and plant foods identified in the application. As discussed above, the
MERRIAM-WEBSTER ONLINE DICTIONARY defines a “bud” as “a small part that grows
on a plant and develops into a flower, leaf, or new branch,” and “set” as “to cause (as
fruit or seed) to develop,” and Applicant acknowledges that “bud,” “in the context of
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plants, may refer to an intermediate stage in the development of plant structures,”
12 TTABVUE 6, while “set,” “in its noun form in the context of plants, may refer to ‘a
young plant or rooted cutting ready for transplanting.” Id. n.2.8 Applicant further
acknowledges that the combination of BUD and SET into the proposed mark BUD
SET may “refer to an intermediate stage in the development of plant structures.” Id.
at 7.
The combination of the words BUD and SET in the proposed mark does not yield
“any distinctive source-identifying impression contrary to the descriptiveness of the
individual parts.” Fat Boys, 118 USPQ2d at 1515-16 (quotation omitted). In the 2014
Decision, the Board noted that “the examining attorney submitted evidence showing
third-party use of the term ‘bud set’ to describe a specific growth stage of plants.”
Fusion 360, 22 TTABVUE 3 (Serial No. 85582688). The same is true here based on
some of the same evidence in the record as in the Previous Application as well as
additional probative evidence.
In the 2014 Decision, the Board noted that “several of the excerpts submitted by
the examining attorney, including the first three set forth above, specifically
reference plant food or fertilizer when discussing ‘bud set.’” Id. at 6. One of the three
excerpts, an article by Arthur S. Myhre and W.P. Mortensen entitled The Effect of
Phosphorous on Rhododendron Flower-Bud Formation, JOURNAL AMERICAN

8 In the 2014 Decision, the Board noted that Applicant similarly “admit[ted] that the term
‘bud set’ may refer to a growth stage of plants, at least as one possible meaning of the term.”
Fusion 360, 22 TTABVUE 5 (Serial No. 85582688).
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RHODODENDRON SOCIETY (1964), id. at 4, is of record here,9 and, as the Board noted
in the 2014 Decision, id. at 3, it states, among other things, that the use of nitrogen
“increased bud set.”10 A second article listed and summarized by the Board in the
2014 Decision, Antje Rohde, et al., Bud set in poplar-genetic dissection of a complex
trait in natural and hybrid populations, NEW PHYTOLOGIST (2010), id. at 5, is also of
record here,11 and it refers to “bud set” as one of the “[m]any events in the annual
growth cycle” of plants.12 The record also contains an abstract of an article entitled
Sumagic (Uniconazole) Promotes Flower Bud Set on Camellia Japonica on the
website of the JOURNAL OF ENVIRONMENTAL HORTICULTURE, which states that
container-grown plants sprayed with a water control and other treatments “provided
no increase in flower bud sets but Sumagic treatments increased bud set for ‘Grace
Albritten’ by up to 370% and ‘Paulette Goddard’ by 200%,”13 and an article in
SCIENTIA HORTICULTURAE entitled Cranberry Growth and yield response to fertilizer
and paclobutrazol, which states that in a cranberry field study certain sprays of
paclobutrazol “increased bud set and flower-bud set on uprights.”14

9 October 30, 2019 Denial of Request for Reconsideration at TSDR 29-33.
10 Id. at TSDR 30.
11 October 11, 2018 Office Action at TSDR 26-48.
12 Id. at TSDR 27.
13 October 30, 2019 Denial of Request for Reconsideration at TSDR 60-61.
14 October 11, 2018 Office Action at TSDR 62-63. Applicant dismisses this article as
“demonstra[ting] that fertilizer may have several functions, purposes or effects on a plant
and its environment,” rather than that “a significant purpose of fertilizer is to promote bud
set.” 12 TTABVUE 10. This argument is unavailing. As discussed above, a “mark need not
immediately convey an idea of each and every specific feature of the goods in order to be
considered merely descriptive; it is enough if it describes one significant attribute, function
or property of the goods.” Fat Boys, 118 USPQ2d at 1513. The fact that fertilizers may have
Serial No. 88131491
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As in the Previous Application, the record here also contains webpages “showing
third-party use of the term ‘bud set’ to describe a specific growth stage of plants,”
Fusion 360, 22 TTABVUE 3 (Serial No. 85582688), and “specifically referenc[ing]
plant food or fertilizer when discussing ‘bud set.’” Id. at *6. These include a page
promoting FoxFarm Tiger Bloom fertilizer, which states that the product “helps
promotes [sic] abundant fruit, flower and bud set;”15 a page promoting FoxFarm’s
family of fertilizers, which recommends that “[o]nce bud set begins feed with Beastie
Bloom® for a two week period;”16 a page promoting Tappin Roots Solid Bloom
fertilizer, which states that the product’s “all natural recipe supplies nutrients
specifically tailored to develop heavy bud set, dense flowering and prosperous fruit
yields, while boosting overall plant quality and hardiness;”17 and a page promoting
Jack’s fertilizer, which urges use of the product “during periods of bud set to increase
number and size of blossoms.”18

multiple functions or purposes in addition to “increas[ing] bud set,” October 11, 2018 Office
Action at TSDR 63, does not mean that BUD SET does not describe “one significant attribute,
function or property of the goods.” Fat Boys, 118 USPQ2d at 1513.
15 October 30, 2019 Denial of Request for Reconsideration at TSDR 59 (planetnatural.com).
One of the advertisements referenced in the 2014 Decision was a FoxFarm advertisement for
Grow Big liquid plant food, which stated that the product “encourages vigorous vegetative
growth from the first week through bud set.” Fusion 360, 22 TTABVUE 4 (Serial No.
85582688).
16 April 12, 2019 Final Office Action at TSDR 2 (foxfarmfertilizer.com).
17 Id. at TSDR 7 (homedepot.com). Applicant argues that this page “refers to developing bud
set as only one of a litany of effects of applying Solid Bloom,” 12 TTABVUE 9, but that “it
does so at most as a secondary benefit of the ultimate ‘significant purpose’ of improving
‘flowering potential.’” Id. For the reasons noted above, this argument is unavailing because
“develop[ing] heavy bud set,” April 12, 2019 Final Office Action at TSDR 7, need not be the
only purpose or function of fertilizers or plant food to be “one significant attribute, function
or property of the goods.” Fat Boys, 118 USPQ2d at 1513.
18 April 12, 2019 Final Office Action at TSDR 20-21 (greenhousemegastore.com).
Serial No. 88131491
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As discussed above, like the record in the Previous Application, the record here
shows that increasing bud set is a significant function or purpose of the use of
fertilizer, even if it is not the only or primary one. We are not persuaded by
Applicant’s arguments that its proposed mark is suggestive “since a multi-step
thought process is required to link the mark BUD SET with the claimed goods,” 12
TTABVUE 11, that BUD SET is “not the usual or normal manner in which the
purpose of the goods claimed is described, id. at 13, and that the “distinctiveness of
the term BUD SET, as evidenced by its uncommon usage, should contribute to
treating BUD SET not as merely descriptive but instead as at most suggestive,” id.,
that the result in this case should be different from the one in the 2014 Decision.
Applicant’s first argument regarding “a multi-step thought process” addresses a
non-issue. “[T]he question is not whether someone presented only with the mark
could guess the goods and services listed in the identification. Rather, the question is
whether someone who knows what the goods and services are will understand the
mark to convey information about them.” Mecca Grade Growers, 125 USPQ2d at 1953
(citing DuoProSS, 103 USPQ2d at 1757). The latter two arguments regarding the
alleged “uncommon usage” of the proposed mark are unavailing because “there is no
requirement that the Examining Attorney prove that others have used the mark at
issue or that they need to use it, although such proof would be highly relevant to an
analysis under Section 2(e)(1),” Fat Boys, 118 USPQ2d at 1514, and “[t]he fact that
Applicant may be the first or only user of a term does not render that term distinctive,
Serial No. 88131491
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if it otherwise meets the standard [for descriptiveness] set forth in In re Gyulay, In re
Chamber of Commerce and DuoProSS.” Id.
We find, on the basis of the record as a whole, that the Examining Attorney
established a prima facie case “that consumers would perceive ‘bud set,’ in relation to
applicant’s identified goods, as describing a function or purpose of them,” Fusion 360,
22 TTABVUE 6 (Serial No. 85582688), and that “it requires no thought or mental
gymnastics to understand that ‘bud set,’ when referring to applicant’s goods,
describes a feature highlighting the growth stage at which applicant’s ‘fertilizers;
plant foods’ or chemicals’ may be applied, or perhaps the growth stage that may be
achieved when this is properly done.” Id. at 6-7 (citing In re MBNA Am. Bank, N.A.,
340 F.3d 1328, 67 USPQ2d 1778, 1780-81 (Fed. Cir. 2003)). Applicant made of record
no evidence, and advanced no persuasive arguments, to rebut that prima facie case.
Accordingly, as the Board concluded in the 2014 Decision, “we have no doubt that a
consumer would understand ‘bud set,’ used in connection with applicant’s goods, as
directly conveying information about them.” Id. at 7.
Decision: The refusal to register is affirmed.