Alliant Techsystems Inc.

Trademark Trial and Appeal Board

Jul 2, 2009

No. 78546549 (T.T.A.B. Jul. 2, 2009)

Hearing: Mailed: 7/2/09
4/21/09

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Alliant Techsystems Inc.
________

Serial No. 78546549
_______

Stephen R. Baird and Karen A. Brennan of Winthrop &
Weinstine for Alliant Techsystems Inc.

Dayna J. Browne, Trademark Examining Attorney, Law Office
104 (Chris Doninger, Managing Attorney).
_______

Before Quinn, Walsh and Wellington, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Alliant Techsystems Inc. filed an application to
register the design mark depicted below

THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser. No. 78546549
2
for “ammunition” in International Class 13.1 The
application includes a statement that “[t]he colors yellow,
red, orange, black and brown are claimed as a feature of
the mark.” The application also includes a description of
the mark as follows:
a design showing an incomplete pair of
deer antlers juxtaposed with colorful
dotted lines and swirls of varying
brightness and intensity evoking the
image of a high energy molecular
reaction. The color red appears in the
antlers and on the outside edges and to
the left and right of the antlers, the
color yellow appears in the swirling
pattern in the right center of the mark
over the antlers, the color orange
appears between the colors red and
yellow in the dots, the color brown
appears on the antlers, and the color
black appears on the antlers and in the
far edges of the mark as shadowing.

The examining attorney refused registration under
Sections 1, 2, 3 and 45 of the Trademark Act, 15 U.S.C.
§§1051, 1052, 1053 and 1127, on the ground that the matter
sought to be registered does not function as a trademark
for applicant’s goods because it is merely ornamental and
lacks inherent distinctiveness.

1 Application Serial No. 78546549, filed January 12, 2005,
alleging a bona fide intention to use the mark in commerce.
Applicant subsequently filed a statement of use setting forth
first use anywhere on September 30, 2004, and first use in
commerce on February 9, 2005.
Ser. No. 78546549
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When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs, and both
appeared at an oral hearing.
The examining attorney maintains that the design is
merely a nondistinctive background design for applicant’s
FUSION trademark and, thus, does not function as a source
indicator for applicant’s goods. The examining attorney
essentially contends that the design is ornamental, and it
is not uncommon in the trade for ammunition packaging to
display in a decorative manner various depictions of deer
or deer heads with antlers, or of some type of bright
colors suggestive of an explosion. In support of the
refusal the examining attorney introduced photographs of
packaging for ammunition of third-party competitors.
Applicant contends that the design sought to be
registered is inherently distinctive and “creates a
separate commercial impression upon the buyer as it emerges
out of the background and hits the buyer in the eye in such
a way that it is easily recognizable by consumers as a
source identifier.” (Brief, p. 1). Applicant argues that
its design is “suggestive of a high-technology, high-energy
molecular reaction through the use of vibrant colors (red,
orange and yellow) complimented by linear, dotted, and
swirling patterns and framed by uniquely positioned deer
Ser. No. 78546549
4
antlers.” (Brief, p. 8). As such, applicant urges, the
design is distinctive, that is, it creates a unique and
separate commercial impression upon the consumer.
Applicant responds to the examining attorney’s evidence of
third-party packaging for ammunition by stating that none
are similar to applicant’s design because no packaging
contains more than one element from applicant’s design
mark, and many packages contain no such elements.
Applicant also highlights its use of the design in ways
other than on product packaging, as for example by offering
a downloadable computer wallpaper of the product packaging.
In support of its position, applicant submitted two
declarations of Rick Stoeckel, applicant’s ammunition brand
manager, with related exhibits.
A picture or design may be capable of serving the
trademark function of identifying goods and distinguishing
them from those of others. In the present case, the design
sought to be registered covers the entire product box for
applicant’s ammunition; product packaging trade dress can
be registered either if it is inherently distinctive as
applicant contends, or if it has acquired distinctiveness.
Wal-Mart Stores v. Samara Bros., 529 U.S. 205, 54 USPQ2d
1065, 1069 (2000). The question of inherent
distinctiveness turns on whether consumers, when they first
Ser. No. 78546549
5
encounter applicant’s design, would view it as a source
indicator. As applicant points out, in assessing inherent
distinctiveness, we must consider the trade dress as a
whole, rather than looking at each element of the trade
dress individually.
In answering this question, we apply the time-tested
analysis first articulated in Seabrook Foods, Inc. v. Bar-
Well Foods, Ltd., 568 F.2d 1342, 196 USPQ 289 (CCPA 1977).
Under Seabrook, we consider the packaging design and
determine:
Whether the product packaging design is
a common basic shape or design;

Whether the product packaging design is
unique or unusual in the particular
field;

Whether the product packaging design is
a mere refinement of a commonly-adopted
and well-known form of ornamentation
for a particular class of goods viewed
by the public as dress or ornamentation
for the goods; and

Whether the product packaging design is
capable of creating a commercial
impression distinct from any
accompanying words.

The relevant Seabrook factors overlap in this case.
Professor McCarthy has observed that “[i]n reality, all
three [Seabrook] questions are merely different ways to ask
whether the design, shape or combination of elements is so
Ser. No. 78546549
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unique, unusual or unexpected in this market that one can
assume without proof that it will automatically be
perceived by customers as an indicia of origin -- a
trademark.” J.T. McCarthy, McCarthy on Trademarks and
Unfair Competition, §8.02[4] (3d ed. 1993). “Thus the
focus of the inquiry is whether or not the trade dress is
of such a design that a buyer will immediately rely on it
to differentiate the product from those of competing
manufacturers; if so, it is inherently distinctive.” Tone
Brothers Inc. v. Sysco Corp., 28 F.3d 1192, 31 USPQ2d 1321,
1331 (Fed. Cir. 1994), citing Paddington Corp. v. Attiki
Importers & Distributors, Inc., 996 F.2d 577, 27 USPQ2d
1189, 1192-93 (2d Cir. 1993). The facts of each case must
dictate the determination. See Hoover Co. v. Royal
Appliance Manufacturing Co., 238 F.3d 1357, 57 USPQ2d 1720
(Fed. Cir. 2001) (“The issue of inherent distinctiveness is
a factual determination made by the board.”). The
examining attorney does not have a heavy burden in
establishing a prima facie case that a mark is not
inherently distinctive. The examining attorney need only
establish a “reasonable predicate” to make the necessary
prima facie showing. In re Pacer Technology, 338 F.3d
1348, 67 USPQ2d 1629, 1632 (Fed. Cir. 2003), citing, In re
Ser. No. 78546549
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Loew’s Theatres, Inc., 769 F.2d 764, 226 USPQ 865, 868
(Fed. Cir. 1985).
The record includes two declarations with related
exhibits introduced by applicant. Mr. Stoeckel in his
first declaration states that applicant has extensively
advertised and promoted its product packaging design mark
in connection with forty different ammunition products.
According to Mr. Stoeckel, applicant has made a conscious
effort to emphasize and prominently display the design mark
and to associate it in the minds of consumers with the
ammunition products offered by applicant. He indicates
that the design mark remains substantially unchanged among
the various uses and, thus, presents a separate and
distinct commercial impression.
In his second declaration Mr. Stoeckel indicates that
applicant has expanded its use of the design mark on
additional products and in promotional materials. He
reiterates that applicant has made a continuous effort to
consistently display the design mark in the same manner
throughout its use.
Each declaration is accompanied by a variety of
exhibits, including, in pertinent part, examples of the
packaging design for applicant’s different products; a
trade show display that shows the packaging; downloadable
Ser. No. 78546549
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computer wallpaper showing the packaging design;2 third-
party retailers’ use of the design in their advertising of
applicant’s ammunition; and applicant’s advertising.
The product description of applicant’s ammunition sold
under the mark FUSION indicates that while this specific
ammunition delivers exceptional performance on other thin-
skinned game, FUSION brand ammunition is “made specifically
for deer hunting,” and that the product is “optimized for
deer.” (see, e.g., www.cabelas.com). The record does not
show any use of the design separate and apart from its use
in connection with applicant’s mark FUSION.
The record includes examples of the product packaging
of competitors in the ammunition industry. The packaging
shows a variety of hunted game, including deer, bear, ducks
and elk. Of particular importance in the present case is
the packaging showing a variety of pictorial
representations of deer, ranging from full body deer to
deer silhouettes to a deer head with antlers. No matter
the type of pictorial representation, the deer is always
displayed with antlers. Other packaging shows the use of
colors such as red, yellow and orange, presumably to

2 The wallpaper shows the product packaging design covering the
entirety of a box of ammunition along with the mark FUSION. The
entire box design is significantly covered by a lock and chain,
along with the words “Let It Loose.”
Ser. No. 78546549
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suggest an explosion caused by the ammunition.
Applicant’s design essentially covers the entire box
in which applicant’s ammunition is sold. At the outset we
readily concede that the colors in applicant’s packaging
are very bright. That is insufficient, however, to
transform the packaging into an inherently distinctive
trademark for applicant’s goods. In a news release,
applicant refers to “Fusion, a competitively priced, high-
tech center fire rifle ammunition, burst on the scene with
eye-catching packaging and eye-popping performance.”
However, the “eye-catching” packaging is due more to the
bright colors than to the inherent distinctiveness of the
overall packaging design. Further, even when the other
elements of applicant’s mark are added and the design mark
is considered as a whole as described in applicant’s
description of its mark, we find that the product packaging
design is not inherently distinctive. That is to say, the
combination of the swirling bright colors and the deer
antlers, as described in the description of the mark, is
not so unique, unusual or unexpected in the ammunition
market to conclude that the design automatically is
perceived as a trademark for applicant’s ammunition.
We find that the design is employed as a background
for the display of applicant’s mark FUSION. When used in
Ser. No. 78546549
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this fashion, the purchasing public would be unlikely to
regard the design as identifying and distinguishing
applicant’s ammunition and indicating its source. See In
re Soccer Sport Supply Company, Inc., 507 F.2d 1400, 184
USPQ 345, 347 (CCPA 1975)(“An ornamental design can be
inherently distinctive if it is arbitrary and distinctive
and if its principal function is to identify and
distinguish the source of the goods to which it is applied,
ornamentation being merely incidental. However, a design
which is a mere refinement of a commonly-adopted and well-
known form of ornamentation for a class of goods would
presumably be viewed by the public as a dress or
ornamentation for the goods.” (citations omitted)).
As noted above, the record includes examples of deer
with antler designs appearing on boxes of ammunition of
competitors. Other boxes show uses of the colors red,
yellow and orange. We find that the evidence of record
supports the examining attorney’s position that deer with
antlers designs, and the colors red, yellow and orange are
relatively common in the ammunition trade, and that usage
thereof is not unique. Applicant’s design, as utilized on
the boxes for applicant’s ammunition, is essentially a mere
decorative or ornamental background for the display of its
mark FUSION. See In re F.C.F., Inc., 30 USPQ2d 1825 (TTAB
Ser. No. 78546549
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1994). Although we recognize that the record does not show
any other uses of the same specific combined design
employed by applicant, the design appears to be no more
than a mere refinement of a basic, relatively common form
of decoration for ammunition packaging and would be so
regarded by the public. That is to say, while the design
sought to be registered may be unique in the sense that
there is no evidence that anyone else in the ammunition
trade is using a design which is identical to it, it is
nonetheless not inherently distinctive. Again, while the
bright colors of applicant’s packaging may enable this
packaging to stand out when compared to competitors’
packaging in the ammunition trade, we not persuaded that
applicant’s overall design was, at the time of adoption and
first use, an inherently distinctive design that achieved
instant recognition as a trademark denoting origin of
applicant’s ammunition. The fact that the design covers
the entire surface of the packaging adds to our view that
buyers will not perceive the design as a source indicator.
Applicant also points to the existence of
registrations owned by it and by third parties that,
according to applicant, are for marks comprising other
types of background designs that issued on the Principal
Register as inherently distinctive marks. Suffice it to
Ser. No. 78546549
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say that each case must be decided on its own facts. We
are not privy to the files in those registrations and, in
any event, we are not bound by the prior actions of
examining attorneys. See In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)(“Even if some
prior registrations had some characteristics similar to
[applicant’s] application, the PTO’s allowance of such
prior registrations does not bind the board or this
court.”).
Decision: The refusal to register is affirmed.