24 Hour Fitness, Inc.

Trademark Trial and Appeal Board

Oct 4, 2000

No. 75161148re (T.T.A.B. Oct. 4, 2000)

Paper No. 20
HRW
10/4/00
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re 24 Hour Fitness, Inc.
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Serial No. 75/161,148
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Request for Reconsideration
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Donald L. Beeson for 24 Hour Fitness, Inc.
Steven R. Fine, Trademark Examining Attorney, Law Office
107 (Thomas Lamone, Managing Attorney).
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Before Hairston, Wendel and Holtzman, Administrative
Trademark Judges.
Opinion by Wendel, Administrative Trademark Judge:
The Board, in its decision of June 21, 2000, affirmed
the refusal to register under Section 2(e)(1) and found the
evidence submitted by applicant insufficient to demonstrate
acquired distinctiveness under Section 2(f). Applicant, on
July 20, 2000, has filed a request for reconsideration with
respect to the Board’s ruling on the insufficiency of the
evidence to show acquired distinctiveness. Applicant
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/161,148
2
requests that the Board either reverse its decision with
respect to the 2(f) evidence or, alternatively, modify its
decision to the extent that the application would be
remanded to the Examining Attorney so that applicant might
submit additional evidence with respect to the separate use
of the 24 HOUR and circle design.
While we have carefully considered applicant’s
arguments, we remain of the view that the evidence of
record at the time of appeal is insufficient to establish
that applicant’s 24 HOUR and circle design has acquired
distinctiveness. There is no dispute that the 24 HOUR and
circle design portion of the composite mark shown in the
applicant’s evidence is not so integrated with the words
FITNESS or NAUTILUS as to be incapable of creating a
separate commercial impression. The issue, however, is
whether applicant has promoted and/or separately used the
24 HOUR circle design, such that it has in fact become
recognized by purchasers as an independent indication of
source. This is the type of evidence necessary to
establish acquired distinctiveness under Section 2(f).
While the assertion of a 2(f) claim is not foreclosed, the
evidence before us at the time of appeal is simply
insufficient.
Ser No. 75/161,148
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Although applicant states that it is prepared to
submit additional evidence showing use of the 24 HOUR
circle design in other contexts as well as recent separate
use on the Internet, the present case must be decided on
the evidence of record at the time of the appeal. If
applicant wishes to rely upon more recent promotion and
usages of its 24 HOUR circle design, applicant’s recourse
is to file a new application claiming acquired
distinctiveness under Section 2(f) based on this new
evidence.
Accordingly, the Board’s decision with respect to the
insufficiency of the evidence presented under Section 2(f)
stands and applicant’s alternative request for remand is
denied.
P. T. Hairston
H. R. Wendel
T. E. Holtzman
Administrative Trademark Judges,
Trademark Trial and Appeal Board
Ser No. 75/161,148
4