Unite Eurotherapy, Inc.

Trademark Trial and Appeal Board

Aug 20, 2008

No. 78936716 (T.T.A.B. Aug. 20, 2008)

Mailed: August 20, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Unite Eurotherapy, Inc.
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Serial No. 78936716
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Thomas D. Foster, Esq. for Unite Eurotherapy, Inc.

Evelyn W. Bradley, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
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Before Walters, Grendel and Taylor, Administrative Trademark
Judges.

Opinion by Walters, Administrative Trademark Judge:

Unite Eurotherapy, Inc. has filed an application to
register on the Principal Register the standard character
mark 7SECONDS for “hair detangler,” in International Class
3.1
The examining attorney has issued a final refusal to
register, under Section 2(e)(1) of the Trademark Act, 15

1 Serial No. 78936716, filed July 25, 2006, based on use of the
mark in commerce, alleging first use and use in commerce as of
May 31, 2003.

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 78936716
2
U.S.C. §1052(e)(1), on the ground that applicant’s mark is
merely descriptive in connection with its identified goods.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We affirm the refusal
to register.
Applicant argues that its mark is, at most, suggestive
of a short wait, and that a prospective purchaser seeing the
term on the product container would have no idea what
7SECONDS refers to. Applicant contends that the number
seven has numerous religious, cultural, mathematical and
psychological connotations and, thus, the mark 7SECONDS is
subject to multiple connotations; and that, because of the
merger of the numeral 7 and the word SECONDS into a single
word with no spaces, viewers will not examine the mark for
literalness and, accordingly, the mark creates a unique,
non-descriptive mark. Applicant submitted numerous copies
of third-party registrations for marks that include the term
“seconds” preceded by a number for a wide variety of goods
and services; and search result lists from the Google
Internet search engine for various uses of the term
“seconds” preceded by a number.
Applicant also submitted examples of its own use of its
mark in promotional documents, showing the container for its
product and written promotional copy. The bottle shows
applicant’s name UNITE EUROTHERAPY with UNITE appearing in
Serial No. 78936716
3
larger letters above EUROTHERAPY. Below and separated by a
space on the bottle is the phrase:
7SECONDS™ Condition
LEAVE IN DETANGLER

A description beside the picture of the bottle states, in
part: “Within 7 seconds your tangles will be gone and your
hair will start to feel alive again.”
The examining attorney contends that 7SECONDS is merely
descriptive of a significant aspect of applicant’s product,
namely, that it detangles hair in 7 seconds.” The examining
attorney submitted excerpts from several Internet websites
showing various third-party hair detanglers that reference
the amount of time, in seconds, that the product should be
left on the user’s hair. For example, references to two
different hair detanglers, BIOELEMENTS and CHS SLIP, state
that these products should be left on the hair for 30
seconds.
The test for determining whether a mark is merely
descriptive is whether it immediately conveys information
concerning a quality, characteristic, function, ingredient,
attribute or feature of the product or service in connection
with which it is used, or intended to be used. In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed.
Cir. 2007); In re Engineering Systems Corp., 2 USPQ2d 1075
(TTAB 1986); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB
1979). It is not necessary, in order to find that a mark is
Serial No. 78936716
4
merely descriptive, that the mark describe each feature of
the goods or services, only that it describe a single,
significant quality, feature, etc. In re Venture Lending
Associates, 226 USPQ 285 (TTAB 1985). Further, it is well-
established that the determination of mere descriptiveness
must be made not in the abstract or on the basis of
guesswork, but in relation to the goods or services for
which registration is sought, the context in which the mark
is used, and the impact that it is likely to make on the
average purchaser of such goods or services. In re
Recovery, 196 USPQ 830 (TTAB 1977).
We agree with the examining attorney that 7SECONDS is
merely descriptive in connection with hair detangler.
We find applicant’s arguments in favor of registration
to be unconvincing and inaccurate. For example, as stated
above, we must consider the mark in connection with the
goods, thus, any potential purchaser of applicant’s hair
detangler is likely to understand that the term 7SECONDS
refers to the amount of time necessary for detangling; as
the term is in fact merely descriptive, it is axiomatic that
competitors may need to use the phrase; the mere fact that
the number “7” may have multiple connotations does not mean
that, in the context of this mark for the identified goods,
it has any connotation other than denoting the number of
seconds it takes to achieve results. Further, while the
Serial No. 78936716
5
phrase 7SECONDS may be unitary, it neither is
unique nor does it have any non-descriptive
connotations when it is used on or in connection with the
identified goods.
Applicant submitted over 400 pages of third-party
registrations, website excerpts and search engine search
result lists in support of its arguments in favor of
registration. However, most of this evidence is irrelevant,
as we must decide each case on its own facts and the
evidence refers to different terms and a wide variety of
goods and services, that is, where it is even possible to
discern the goods and services. In fact, a sizable number
of the third-party registrations submitted were expired or
they were Supplemental Register registrations.
Therefore, we conclude that, when applied to
applicant’s services, the term 7SECONDS immediately
describes, without conjecture or speculation, a significant
feature or function of applicant’s goods, namely that it
will detangle hair in seven seconds. Nothing requires the
exercise of imagination, cogitation, mental processing or
gathering of further information in order for purchasers of
and prospective customers for applicant’s goods to readily
perceive the merely descriptive significance of the term
7SECONDS as it pertains to applicant’s goods. We note,
further, that we have no doubt in reaching this conclusion.
Serial No. 78936716
6
Decision: The refusal under Section 2(e)(1) of the Act
is affirmed.