North Carolina State University

Trademark Trial and Appeal Board

Dec 6, 2002

No. 76108752 (T.T.A.B. Dec. 6, 2002)

Mailed: December 6, 2002
Paper No. 7
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re North Carolina State University
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Serial No. 76/108,752
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Richard E. Jenkins of Jenkins & Wilson PA for North
Carolina State University.
Richard A. Strasser, Trademark Examining Attorney, Law
Office 114 (Margaret Le, Managing Attorney).
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Before Hanak, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
North Carolina State University has applied to
register MASTER GARDENER EXTENSION VOLUNTEER as a trademark
for the following goods and services:
Brochures and newsletters concerning horticultural
educational programs provided under the guidance
and supervision of the cooperative extension
service to train and certify volunteers who provide
information to the gardening public in class 16; and
Horticultural educational programs in the form
of workshops provided under the guidance and
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76/108,752
2
supervision of the cooperative extension service
to train and certify volunteers who provide
information to the gardening public in
class 41.1
The Trademark Examining Attorney has refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. §1052(e)(1), on the ground that the mark is merely
descriptive of the identified goods and services.
Applicant and the Examining Attorney have filed
briefs, but no oral hearing was requested.
According to the Examining Attorney, the term “Master
Gardener Extension Volunteer” is the name for a master
gardener who volunteers with an extension program. The
Examining Attorney maintains that colleges/universities and
localities offer extension programs, which educate the
public in agriculture and horticulture. Thus, the
Examining Attorney argues that the mark MASTER GARDENER
EXTENSION VOLUNTEER is merely descriptive of the identified
goods and services because it describes “who will be
trained and who will be the end user” of the identified
brochures and newsletters and educational programs.
(Brief, page 3).
1 Serial No. 76/108,752, filed on August 14, 2000, which alleges
a bona fide intention to use the mark in commerce.
Ser No. 76/108,752
3
In support of the refusal to register, the Examining
Attorney submitted excerpts of articles taken from the
NEXIS database, which refer to “master gardener(s)” and/or
“extension volunteer(s).” The following are representative
samples:
This free program will demonstrate the use of
Florida plants, seeds and cones for holiday
decorating and gift-giving. It will be led
by master gardeners and extension agent Linda
Landrum.
(The Orlando Sentinel, November 26, 2000);
The 3,600-square-foot garden is ablaze in color
from this year’s annuals and perennials. Master
gardeners from the Extension office for Douglas
and Sarpy counties will be on hand to answer
questions.
(Omaha World-Herald, September 3, 2000);
Speakers will include local nursery owners,
garden designers, book authors, master gardeners
and Extension educators.
(The Times Union, March 5, 2000);
The conference, which is held each year in late
September or early October, is a major
mechanism by which the horticultural staff
of KSU educates its extension volunteers.
(Topeka Capital Journal, November, 18, 2000);
East has been an extension volunteer since the
late 1980’s, when she first started as a 4-H
leader, and has since become a master gardener
through the extension service’s program.
(The Tampa Tribune, November 5, 2000); and
Assisting Nellie were two other Cooperative
Extension volunteers – a resource coordinator
and a chrysanthemum specialist. . .
(Daily Press, September 14, 2000).
Ser No. 76/108,752
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In addition, the Examining Attorney submitted three
excerpts of articles taken from the NEXIS database, which
refer to the combined term “master gardener extension
volunteer(s).” These excerpts are taken from the Sunday
Advocate published in Baton Rouge, Louisiana and are set
forth below:
Master Gardener Extension volunteers will
provide advice about all of the labeled plants
and answer questions.
(October 22, 2000);
Interested in learning about the Master
Gardener Extension Volunteer Program?
(October 8, 2000); and
Master Gardener Extension Volunteers will
be manning a booth on both days to assist
with general gardening questions.
(October 1, 2000).
Applicant, in urging reversal of the refusal to
register, argues that at most, MASTER GARDENER EXTENSION
VOLUTEER is suggestive of applicant’s periodicals and
training services. Applicant states that:
The MASTER GARDENER EXTENSION VOLUNTEER PROGRAM
is an educational program designed to enhance
public education in consumer horticulture. It
provides educational assistance to the citizens
of a county concerning horticultural matters by
training a volunteer staff. Under the guidance
and support of state extension agents, selected
residents of a county enter a specially designed
training program in horticulture and subsequently
volunteer to serve through a local Cooperative
Education Service Center. The program allows
the extension of education to a large gardening
audience and assists with the public demand for
Ser No. 76/108,752
5
horticultural information. The program’s goods
and services, as indicated by the description
thereof in the application are distinctly
different from the participants who will be
trained and who will be the end user of the
books and classes described herein. (Brief,
page 5; underlining in original).
Further, applicant maintains that at least fifteen marks
have been registered which include the term VOLUNTEER and
cover periodicals and/or educational programs.
It is well settled that a term is merely descriptive
if it serves merely to identify a class of users to which
the goods or services are directed. International Ass’n.
of Fire Chiefs, Inc. v. H. Marvin Ginn Corp., 225 USPQ 940
(TTAB 1985) [FIRE CHIEF held generic for magazine targeted
for fire chiefs and other senior fire fighting officials];
In re Camel Manufacturing Co., 222 USPQ 1031 (TTAB
1984)[MOUNTAIN CAMPER held merely descriptive of retail and
mail order services in the field of outdoor equipment and
apparel]; see also Yankee, Inc. v. Geiger, 216 USPQ 996
(TTAB 1982)[FARMER’S ALMANAC held generic for an almanac
published primarily for the benefit of farmers]; In re
Gentex Corp., 151 USPQ 435 (TTAB 1966)[PARADER merely
descriptive of helmet liners sold for use by persons who
parade, e.g. members of a band or drill team].
Turning to the term MASTER GARDENER EXTENSION
VOLUNTEER, it is clear from the evidence submitted by the
Ser No. 76/108,752
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Examining Attorney that this term would be understood to
refer to a master gardener who serves as an extension
volunteer. Further, there is no question from applicant’s
own description of its goods and services that its
periodicals and educational programs are designed to train
persons in the field of horticulture or gardening to serve
as extension volunteers. Thus, the term MASTER GARDENER
EXTENSION VOLUNTEER merely describes the class of users to
which applicant’s periodicals and educational programs are
directed.
We note that there is evidence of use of MASTER
GARDENER EXTENSION VOLUNTEER in a descriptive manner, that
is, to describe a master gardener who serves as an
extension volunteer. Thus, it would appear that other
extension programs may well need to use the term MASTER
GARDENER EXTENSION VOLUNTEER to describe their similar
goods and services.
Finally, the third-party registrations relied upon by
applicant, which include the term VOLUNTEER, are not
persuasive of a contrary result in this case. While, of
course, uniform treatment under the Trademark Act is
essential, our task on this appeal, based upon the factual
record before use, is to determine whether applicant’s mark
is merely descriptive. As it has often been stated, the
Ser No. 76/108,752
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Board must decide each case on its own set of facts. See
In re Nett Designs Inc., 263 F.3d 1379, 57 USPQ2d 1564
(Fed. Cir. 2001). We are not privy to the file records of
the third-party registrations relied upon by applicant and
have no way of knowing the reasons for their allowance.
Decision: The refusal of registration under Section
2(e)(1) of the Act is affirmed.