United Suppliers, Inc.

Trademark Trial and Appeal Board

Dec 19, 2012

No. 85262946 (T.T.A.B. Dec. 19, 2012)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
December 19, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re United Suppliers, Inc.
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Serial No. 85262946
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Timothy J. Zarley of Zarley Law Firm, P.L.C. for United Suppliers, Inc.

Leigh Caroline Case, Trademark Examining Attorney, Law Office 105 (Thomas G.
Howell, Managing Attorney).
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Before Bergsman, Wellington, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
United Suppliers, Inc. has applied to register on the Principal Register the
mark TRANSPORTATION EXPRESS in standard character form for services
identified as “hauling of anhydrous ammonia and liquid fertilizer,” in International
Class 39.
The trademark examining attorney refused registration under Section 2(e)(1)
of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that applicant’s mark
merely describes the services. When the refusal was made final, applicant
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appealed. Applicant and the examining attorney have filed appeal briefs, and
applicant has filed a reply brief.
The question before the Board is whether the mark TRANSPORTATION
EXPRESS, viewed in its entirety, merely describes the services identified in the
application. “A term is merely descriptive if it immediately conveys knowledge of a
quality, feature, function, or characteristic of the goods or services with which it is
used." In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987).
Applicant and the examining attorney have put in evidence numerous
dictionary definitions of the words that compose applicant’s mark. We have
considered all of them. The mark consists of two common words that would be
immediately recognized and understood by most persons in the United States. Like
many words of the English language, the words of the mark have a number of
potential meanings, some clearly not relevant to applicant’s field of business.1 The
question of whether a particular term is merely descriptive must be determined in
relation to the goods or services for which registration is sought and the context in
which the term is used, not in the abstract or on the basis of guesswork. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle,
66 USPQ2d 1222, 1224 (TTAB 2002). We give little consideration to dictionary
definitions that clearly have no relevance to applicant’s line of business.
We look first to the nature of applicant’s services, which have been identified
as “hauling” of certain substances. “Hauling” is defined as “the act or occupation of

1 For example, the evidence shows that “transportation” may mean “exile to a penal colony”;
and that “express” may mean “to force a liquid out of something by squeezing or pressing.”
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transporting goods in a vehicle.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(1993) p. 1038.2 Samples of advertising submitted by applicant as illustrative of
the nature of applicant’s services show pictures of tanker trucks and refer to “Bulk
Anhydrous Ammonia and Liquid Fertilizer Delivery!”3 The above definition of
“hauling” appears to be apt: applicant’s service is an “act of transporting goods,”
namely anhydrous ammonia and liquid fertilizer. Applicant’s business is “the
occupation of transporting [such] goods.”
The words TRANSPORTATION and EXPRESS are somewhat more complex
in meaning. While the record is awash in definitions of these terms, for good
measure we take notice of the following definitions:
TRANSPORTATION:
1 a : an act, process, or instance of transporting or being
transported… 4 a : means of conveyance or travel from
one place to another… b : public conveyance of
passengers, goods or materials, esp. as a commercial
enterprise….
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993) p. 2430.
EXPRESS:
3 a : dispatched with or traveling at special or high speed;
… b : adapted or suitable for or characterized by travel at
special or high speed… also : specially fast….
Id., p. 803.

2 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or
have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
3 Advertisements submitted with applicant’s response filed on November 23, 2011.
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There can be no doubt that the word TRANSPORTATION aptly describes the
nature of applicant’s service of hauling. Applicant’s service is “an act… of
transporting” certain goods; applicant provides a “means of conveyance [of goods]
from one place to another”; and applicant is a “commercial enterprise” that provides
to the public “conveyance of… goods or materials.” This analysis, guided by the
WEBSTER’S definitions, is entirely consonant with the definitions of
TRANSPORTATION made of record by applicant, which include “the act of
transporting”; “the means of transport or conveyance”; and “the business of
conveying people, goods, etc.”4 We also note, as the examining attorney points out,5
that the advertising submitted by applicant as illustrative of its services describes
the provider as “The Premier Specialized Fertilizer Transportation Company”
(emphasis supplied).
The word EXPRESS does not apply to applicant’s service of “hauling” with
the same categorical directness as the word TRANSPORTATION. However, the
word EXPRESS, viewed as an adjective, plausibly describes hauling services that
are performed speedily or are dispatched speedily. This interpretation arises
without difficulty from the WEBSTER’S definition set forth above, as well as from
definitions of EXPRESS submitted by applicant, such as “direct or fast”; “used for

4 Definitions from , submitted with
applicant’s request for reconsideration filed December 29, 2011.
5 Examining attorney’s brief at 5.
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direct or high-speed travel”; and “of, concerned with, or designed for rapid
transportation of … merchandise, … etc.”6
Applicant argues that EXPRESS does not describe its services because its
services are not “provided quickly or more rapidly than ordinary freight service.”7
However, we must determine the question of descriptiveness on the basis of the
description of the services set forth in the application. In re Vehicle Information
Network Inc., 32 USPQ2d 1542, 1544 (TTAB 1994). The identification of applicant’s
services is not limited to services provided slowly or with average promptness; it is
broad enough to include services performed on an expedited basis. Accordingly,
nothing in the identification of services necessarily renders the word EXPRESS
inappropriate as a descriptor of applicant’s services.
Applicant further argues that, because the materials hauled by applicant are
“hazardous materials which require expert handling,” consumers would understand
that “such hazardous goods are not delivered or hauled at a rapid or high speed
which is faster than ordinary freight service.”8 This factor (regarding which the
record contains no evidence) does not render the word EXPRESS inappropriate or
incongruous as applied to applicant’s services. Speedy service can be provided in
ways other than high-speed road travel, such as speedy processing of orders or
speedy dispatching of vehicles. As the examining attorney points out,9 the

6 Id.
7 Applicant’s reply brief at 8.
8 Id. at 10.
9 Examining attorney’s brief at 5.
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advertising submitted by applicant as illustrative of its services refers to “Rapid
Rate Response Time!”
Our finding that each of the terms TRANSPORTATION and EXPRESS is
descriptive with respect to the applicant’s services does not end our inquiry. We
must address whether the mark as a whole merely describes the services.
Applicant argues that its mark “neither suggests what is being transported
and how it is being transported.”10 This argument is unavailing. A mark need not
immediately convey an idea of each and every specific feature of applicant’s services
in order to be considered merely descriptive; it is enough that the term describes
one significant attribute, function or property of the services. See In re
H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338
(TTAB 1973).
Regarding the mark as a whole, applicant argues that “there is no such thing
or service as a TRANSPORTATION EXPRESS.”11 However, the question before us
is not whether TRANSPORATION EXPRESS is the generic name of applicant’s
services. A mark may be descriptive within the meaning of the Trademark Act even
though it is not the common name of the product or service.12
Applicant contends that its mark is not descriptive, but instead suggestive,
because the composite mark TRANSPORTATION EXPRESS “creates a

10 Applicant’s brief at 7.
11 Applicant’s reply brief at 11.
12 On a related point, we agree with applicant that the examining attorney’s evidence of
companies doing business under the names “Cosmos Transportation Express, Inc.,” “Jg
Transportation Express,” and “Cobos Transportation Express Inc.” does not demonstrate
that TRANSPORTATION EXPRESS is a descriptive term.
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redundancy”13 that gives rise to a new commercial impression different from that of
the mark’s component terms. Applicant also states that it “is not utilizing the term
‘express’ to describe ‘transportation’ as the case would be if Applicant’s mark were
‘EXPRESS TRANSPORTATION.’”14 We take this to mean that applicant does not
regard EXPRESS as functioning as an adjective in the context of the mark, but as a
noun. In making this argument, applicant apparently interprets
TRANSPORTATION to mean a “means of conveyance” and EXPRESS to mean a
rapid “mode of transportation,” such as “an express train, bus, elevator, etc.”15 Both
applicant and the examining attorney have submitted definitions that are
consistent with this argument.
The question as to whether EXPRESS is used in applicant’s mark as an
adjective modifying TRANSPORTATION or as a noun designating a mode of
transportation is determined not according to applicant’s intention, but “from the
standpoint of the average prospective purchaser.” In re Abcor, 200 USPQ at 218
(emphasis in original). If we view the two words of the mark to mean, respectively,
a means of conveyance and a mode of transportation, a redundancy indeed results,
similar in nature to “vehicle vehicle” or the redundant interpretation suggested by
applicant, namely, “conveyance in a vehicle” plus “vehicle.”16 These would be very
strained interpretations of the words TRANSPORTATION EXPRESS, and we doubt

13 Applicant’s appeal brief at 9.
14 Applicant’s reply brief at 11.
15 Id.
16 Applicant’s reply brief at 12.
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that customers, viewing the mark in the context of the services, would interpret the
mark in this way. The principle that a mark must be considered in relation to the
services for which registration is sought is based upon the expectation that
potential customers will use what they know about the commercial context to form
their perceptions and interpretations of the mark. See In re Abcor, 200 USPQ at
218 (“Evidence of the context in which a mark is used… is probative of the reaction
of prospective purchasers to the mark. … To hold otherwise would be to separate
the concept of the average prospective purchaser from the world of reality.”) The
question is not whether someone presented only with the mark could guess the
services listed in the recitation of services. Rather, the question is whether
someone who knows what the services are will understand the mark to convey
information about them. In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317
(TTAB 2002); In re Patent & Trademark Services Inc., 49 USPQ2d 1537, 1539
(TTAB 1998); In re Home Builders Association of Greenville, 18 USPQ2d 1313, 1317
(TTAB 1990); In re American Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). We
accordingly expect customers to apply a reasonable interpretation to the mark, if
possible, rather than to strain for an interpretation that is incongruous, redundant,
or devoid of meaning. We believe the average customer, viewing the mark in the
context of the services, would be more inclined to interpret the two words of the
mark to mean, in essence, “delivery service” and “speedy,” rather than the
redundant significance proposed by applicant, which has less inherent meaning and
less relevance to the context of the services.
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In re On Technology Corp., 41 USPQ2d 1475 (TTAB 1996) (AUDITTRACK for
computer software for monitoring activity on a computer network found to be
suggestive), cited by applicant, is distinguishable. In that case, the redundant
interpretation of the mark was the most likely interpretation to be reached by
potential customers having knowledge of the nature of the goods. In the present
case, knowledge about the nature of applicant’s services would lead potential
customers to think of delivery service and speed.
Applicant’s effort to distinguish its mark from the designation “express
transportation” aptly raises the question as to whether the word order of applicant’s
mark affects the commercial impression that it creates. As to word order, there can
be no hard and fast rule. In some cases, word order will have no impact on the
meaning of the component words of mark; in other cases, the order of the words may
substantially affect the way in which the individual words are interpreted by the
average prospective purchaser.
We have little doubt that if applicant’s mark were EXPRESS
TRANSPORTATION, the dictionary definitions of the component words would
compel an interpretation akin to “speedy delivery” or “rapid transport.” We do not
agree with applicant’s argument that the inversion of the words, resulting in the
marks’ actual form, TRANSPORTATION EXPRESS, will induce potential
customers to perceive EXPRESS as a noun, resulting in the “redundant”
significance suggested by applicant. Of the available meanings of the component
words, the most relevant to the context of applicant’s services are those that
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indicate a delivery service that is provided in a speedy way. We believe these
meanings will be perceived immediately by the average customer, despite the order
in which the words are presented, and that the average customer would interpret
the mark to mean speedy delivery services.
The Board finds that applicant’s mark is merely descriptive of applicant’s
services within the meaning of Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1).
Decision: The refusal to register is affirmed.