Big American Man

Trademark Trial and Appeal Board

Jan 18, 2005

No. 76200528 (T.T.A.B. Jan. 18, 2005)

Mailed 1/18/2005
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
Trademark Trial and Appeal Board
_____________
In re Big American Man
_____________
Serial No. 76200528
____________
Kit M. Stetina of Stetina, Brunda, Garred & Brucker for Big
American Man.
Jeri Fickes, Trademark Examining Attorney, Law Office 108
(David Shallant, Managing Attorney).
_____________
Before Hanak, Hairston and Holtzman, Administrative
Trademark Judges.
Opinion by Hanak, Administrative Trademark Judge:
Big American Man (applicant) seeks to register ALL
AMERICAN WOMAN in typed drawing form for “wearing apparel,
namely, shirts, t-shirts, shorts, pants, sweatshirts,
sweatpants, hats, visors, shoes and belts.” The intent-to-
use application was filed on January 26, 2001. At the
request of the Examining Attorney, applicant disclaimed the
exclusive right to use WOMAN apart from the mark in its
entirety.
THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE TTAB
Ser. No. 76200528
2
Thereafter, the Office issued a Notice of Allowance
and a Notice of Publication. Subsequently, applicant
submitted its specimen of use which is a t-shirt bearing
the mark ALL AMERICAN WOMAN. On the specimen, the mark ALL
AMERICAN WOMAN appears in a very small manner on the upper
left corner of the front of the t-shirt (i.e. above the
breast pocket). On the specimen, applicant’s mark is
depicted in a very “ordinary” fashion. To be more
specific, applicant’s mark appears in essentially block
letters with just the initial letter of each word
capitalized.
After applicant submitted its specimen of use, the
Examining Attorney -- citing Sections 1, 2 and 45 of the
Trademark Act –- refused registration on the basis that
“the specimen shows the proposed mark used as mere
ornamentation.” (Examining Attorney’s brief page 1). When
the refusal to register was made final, applicant appealed
to this Board. Applicant and the Examining Attorney filed
briefs. Applicant did not request an oral hearing.
At the outset, we note that the Examining Attorney
concedes that as used on the specimen, applicant’s mark ALL
AMERICAN WOMAN “is small and discreet and positioned over
the left breast pocket.” (Examining Attorney’s brief page
3). We are in complete agreement with the foregoing
Ser. No. 76200528
3
statement of the Examining Attorney. Not only is
applicant’s mark positioned on the t-shirt in a place where
it is common to find trademarks positioned, but in
addition, applicant’s mark is indeed presented in a “small
and discreet” fashion as are many trademarks affixed to t-
shirts. In short, we fail to understand the Examining
Attorney’s argument that consumers would perceive
applicant’s mark ALL AMERICAN WOMAN, as used on applicant’s
specimen, as anything other than a trademark. Applicant’s
mark is not presented in an extremely large fashion such
that it might be perceived as a statement about the wearer,
and thus serve as mere ornamentation. Likewise,
applicant’s mark is not repeated over and over on the
specimen such that it might appear as mere ornamentation.
Rather, applicant’s mark appears but once on the specimen.
In sum, we find that the Examining Attorney has failed
to demonstrate how applicant’s mark, appearing over the
left breast pocket of the t-shirt in a small and discreet
manner, would be perceived as anything other than a
trademark. Accordingly, we reverse the refusal to
register.
Decision: The refusal to register is reversed.