Nature's Rest, Inc.

Trademark Trial and Appeal Board

Mar 30, 2004

No. 76424152 (T.T.A.B. Mar. 30, 2004)

Mailed:
March 30, 2004
Paper No. 8
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Nature’s Rest, Inc.
________
Serial No. 76424152
_______
Brian M. Mattson of Patents+TMS for Nature’s Rest, Inc.
Kathleen M. Vanston, Trademark Examining Attorney, Law
Office 103 (Michael Hamilton, Managing Attorney).
_______
Before Quinn, Bucher and Rogers, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Nature’s Rest, Inc. seeks registration on the
Principal Register for the mark LATEXCORE for “latex
pillows and latex mattresses.”1
This case is now before the Board on appeal from the
final refusal to register on the ground that the term,
LATEXCORE, is merely descriptive of applicant’s goods under
Section 2(e)(1) of the Lanham Act, 15 U.S.C. §1052(e)(1).
1 Application Serial No. 76424152 was filed on June 24, 2002
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 76424152
- 2 -
Both applicant and the Trademark Examining Attorney
have fully briefed the case. Applicant did not request an
oral hearing before the Board.
We affirm the refusal to register.
A mark is merely descriptive, and therefore
unregistrable pursuant to the provisions of Section 2(e)(1)
of the Trademark Act, if it immediately conveys information
of significant ingredients, qualities, characteristics,
features, functions, purposes or uses of the goods or
services with which it is used or is intended to be used.
A mark is suggestive, and therefore registrable on the
Principal Register without a showing of acquired
distinctiveness, if imagination, thought or perception is
required to reach a conclusion on the nature of the goods
or services. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d
1009 (Fed. Cir. 1987).
The question of whether a particular term is merely
descriptive is not decided in the abstract. Rather, the
proper test in determining whether a term is merely
descriptive is to consider the mark in relation to the
goods for which registration is sought, the context in
which the mark is used or is intended to be used, and the
possible significance that the mark is likely to have on
the average purchaser encountering the goods in the
Serial No. 76424152
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marketplace. See In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215 (CCPA 1978); In re Intelligent
Instrumentation Inc., 40 USPQ2d 1792 (TTAB 1996); In re
Consolidated Cigar Co., 35 USPQ2d 1290 (TTAB 1995); In re
Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991); In re
Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986); and
In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979).
The Trademark Examining Attorney introduced into the
record seven excerpts from the LEXIS/NEXIS database showing
the term “latex core” (or “latex cores”) used to describe
mattresses and/or pillows:
HEADLINE: “Dunlopillo aims at U.S. with latex
mattress line”
The Panal/Harrogate-based firm said it
currently exports more than $6 million
worth of latex cores for mattress and
pillows annually to the U.S. This
follows a doubling of sales to North
America last year …
Rubber & Plastics News, June 3, 2002.
-oOo-
HEADLINE: “Our aching backs”
Your Back, is doing a land-office
business selling ergonomic chairs,
massage tables and high-priced beds
with latex cores and organic wool and
cotton quilting.
The Philadelphia Inquirer, February 10,
2002.
-oOo-
HEADLINE: “Spending every waking moment
thinking about a new mattress?”
Serial No. 76424152
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[Graphic caption]: A 6-inch thick
latex core helps give customers a
visual example of Englander’s mattress
construction.
The Fresno Bee, February 7, 2002.
-oOo-
HEADLINE: “Making moves”
As well as exporting latex cores,
toppers and pillows to 70 countries
worldwide. It offers an all inclusive
door to door delivery service …
Cabinet Maker, May 11, 2001.
-oOo-
HEADLINE: “Natura expands collection”
The latex pillow has a solid latex core
with a layer of wool on top and terry
cloth cover….
Home Textiles Today, March 30, 2001.
-oOo-
HEADLINE: “Are you sleeping comfort?”
* Do not fold your mattress or store
on its end. This will distort the
springs and fillings or latex core.
However, if the mattress gets wet,
store it on its side and allow to dry
away from direct heat. Do not expose
the latex core to direct sunlight.
Aberdeen Press and Journal, August 15, 2000.
-oOo-
HEADLINE: “Keep it clean”
The latex core is inhospitable to
bacteria, mold, mildew and dust mites,
according to the company….
Hotel & Motel Management, January 10, 2000.
Serial No. 76424152
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In response to this showing, applicant argues that
this combination of terms creates a distinct commercial
impression:
… Essentially, the evidence the Examining
Attorney has provided demonstrates an
understanding by the relevant public that a
core, or interior, of the pillow or mattress
is constructed from latex. However, with
respect to Applicant’s goods, the relevant
public would be required to gather further
information to determine the actual
characteristics of the goods in view of the
mark “LATEXCORE.” Specifically, the
relevant public would be required to gather
additional information regarding the
interior of the pillows and/or mattresses to
determine whether the interior was actually
constructed from latex. Such an exercise of
information gathering to reach a conclusion
as to the goods indicates that the mark is
suggestive of the goods rather than merely
descriptive. In re Nobile [sic] Co., 225
USPQ 749, 750 (TTAB 1985) (NOBURST held
suggestive as opposed to merely descriptive
for a product that reduces the likelihood
that pipes of a water system in which it is
used will burst since the Board did not
“believe this conclusion is readily arrived
at by merely observing the mark on the goods
but that it requires interpretation by the
viewer.”) (emphasis in original)
However, in the Noble case, the Trademark Examining
Attorney had not found descriptive uses of the term by
competitors, and the Board concluded that the mark
“suggests a desired result of using the product rather than
immediately informing the purchasing public of a
characteristic, feature, function or attribute thereof.”
Serial No. 76424152
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Noble supra at 750. Moreover, applicant apparently
misapprehends the law when it argues that the term “latex
core” is not descriptive of mattresses and pillows because
prospective purchasers would have to investigate to find
out whether applicant’s mattresses and pillows actually
contained a latex core.
With her final refusal to register, the Trademark
Examining Attorney attached copies of pages drawn from
applicant’s own website. These webpages showed applicant’s
usage of the term “latex core” in the context of
discussions of the construction of the upper quilting
panels on its latex mattresses as well as in discussions of
the comfort provided by its latex pillows:
The Nature’s Rest quilting concepts are based [sic] the most successful quilt packages in the US
bedding industry. We then make a few modifications to take into account the fact that a latex
core was involved instead of steel springs…2. High quality super-soft urethane foam – in thin
layers, when quilted for use over a latex core offer [sic] a comfort and appearance value that will
last…

NATURE'S REST LatexCore Pillow…Notice the relief in shoulder pressure. The head and
neck rest comfortably on the perfect loft offered by this unique combination of latex and fiber.
The Latex center core insures support and continual comfort for hours and hours of deep
restorative sleep.

(applicant’s webpages, at http://www.naturesrest.com,
emphasis supplied)
For all the reasons discussed above, we agree with the
Trademark Examining Attorney that the term LATEXCORE
immediately describes, without conjecture or speculation, a
significant feature or characteristic of applicant’s goods,
Serial No. 76424152
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namely, that applicant’s pillows and mattresses have a
“latex core.” Nothing requires the exercise of
imagination, cogitation, mental processing or gathering of
further information in order for prospective purchasers of
applicant’s goods to readily perceive the mere
descriptiveness of the term LATEXCORE as it pertains to
applicant’s goods. In re Omaha National Corporation, 819
F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); and In re Time
Solutions, Inc., 33 USPQ2d 1156 (TTAB 1994).
Decision: The refusal to register the proposed mark
as merely descriptive under Section 2(e)(1) of the Lanham
Act is hereby affirmed.