Brett W. Holm

Trademark Trial and Appeal Board

Jul 30, 2008

No. 76661768 (T.T.A.B. Jul. 30, 2008)

Mailed:
July 30, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Brett W. Holm
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Serial No. 76661768
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John Bartz of Bartz & Bartz, P.A. for Brett W. Holm.

Anne Gustason, Trademark Examining Attorney, Law Office 117
(Loretta C. Beck, Managing Attorney).
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Before Seeherman, Bergsman and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Brett W. Holm (“applicant”) filed an intent-to-use
application for the mark SPICE SHOT, in standard character
format, for goods ultimately identified as “ammunition for
firearms,” in Class 13. Applicant disclaimed the exclusive
right to use the word “shot.”
The Trademark Examining Attorney refused registration
under Section 2(e)(1) of the Trademark Act of 1946, 15
U.S.C. §1052(e)(1), on the ground that the mark SPICE SHOT
is merely descriptive. The Examining Attorney contends
that applicant’s ammunition, or shot, contains spices, and
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 76661768
2
therefore the mark directly imparts information regarding
the nature of the product. To support her refusal, the
Examining Attorney submitted the following evidence:
1. A definition of the word “spice” from the
“WordSmyth.com” website as “any of various edible vegetable
substances with a distinctive aroma or taste, such as
pepper or ginger, that are used to flavor or preserve food
and drink”;1
2. A definition of the word “shot” from the
“WordSmyth.com” website as “a lead pellet that is used with
others to form the charge of a shotgun cartridge, or such
pellets collectively”;2 and,
3. Excerpts from applicant’s “Seasonshot.com”
website that promotes a product called “Season Shot.”3 On
the homepage applicant uses the tagline “Ammo with flavor.”
The product is described as “Seasoning used as shot.”
“Season Shot” comes in Cajun, lemon pepper, garlic,
teriyaki, and honey mustard flavors. In the “How It Works”
page, the “Season Shot” product is described as follows:

1 October 4, 2006 Office Action.
2 Id.
3 Id and the May 30, 2007 Office Action. Although there is
nothing to associate the “SeasonShot.com” website with applicant
on the face of the website, applicant references the website in
his brief. Accordingly, we will consider applicant to be the
owner of the “SeasonShot.com” website and give it whatever
probative value to which it is entitled.
Serial No. 76661768
3
Season Shot is made of tightly packed
seasoning bound by a fully biogradable
food product. The seasoning is
actually injected into the bird on
impact seasoning the meat on impact
from the inside out. When the bird is
cooked the seasoning pellets melt into
the meat spreading the flavor to the
entire bird. Forget worrying about
shot breaking your teeth and start
wondering about which flavor shot to
use!

In the “Why Season Shot?” page, applicant states that “Our
ammo has flavor.”
Opposer argues, in essence, that the words “spice” and
“shot” have many different meanings, and therefore thought
and perception must be used to associate the mark SPICE
SHOT with ammunition. For example, opposer asserts that
the word “spice” means “(1) a small portion, quantity or
admixture, (2) something that gives zest or relish, and (3)
a pungent or fragrant odor,”4 and that the word “shot” means
(1) a home run in baseball, (2) a photographic exposure,
(3) a medical or narcotics injection, (4) a photographic

4 Webster’s Ninth New Collegiate Dictionary p. 1135 attached to
applicant’s April 3, 2007 Response. We note that the precise
dictionary definition reads as follows:

1. any of various aromatic vegetable
products (as pepper or nutmeg) used to
season or flavor foods. 2. a archaic: a
small portion, quantity or admixture: DASH
b. something that gives zest or relish . .
. 3. a pungent or fragrant odor.
Serial No. 76661768
4
exposure, and (5) a small serving of undiluted liquor.”5
Applicant concludes that because the words “spice” and
“shot” have so many different meanings, the mark SPICE SHOT
does not directly convey information about the nature of
applicant’s product.
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the products it identifies.
In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.
1987). Whether a particular term is merely descriptive is
determined in relation to the products 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). In other words, the question is not whether someone
presented only with the mark could guess what the goods
are. Rather, the question is whether someone who knows
what the goods 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

5 Id at 1090. This same source also defines the word “shot” as
including “something propelled by shooting: esp small lead or
steel pellets esp. forming a charge for a shotgun.”
Serial No. 76661768
5
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).
“On the other hand, if one must exercise mature
thought or follow a multi-stage reasoning process in order
to determine what product or service characteristics the
term indicates, the term is suggestive rather than merely
descriptive.” In re Tennis in the Round, Inc., 199 USPQ
496, 497 (TTAB 1978). See also, In re Shutts, 217 USPQ
363, 364-365 (TTAB 1983); In re Universal Water Systems,
Inc., 209 USPQ 165, 166 (TTAB 1980).
Accordingly, we start our analysis of the
registrability of SPICE SHOT by inquiring whether that term
describes a characteristic, quality, function or purpose of
ammunition, not whether we can guess what the products are
by looking at the mark. In this case, however, the problem
with this approach is that neither the applicant, nor the
Examining Attorney, has provided any background information
regarding ammunition, such as whether all shot is made of
lead or steel. Thus, we have very little factual
background on which to formulate how relevant purchasers
would perceive the composite mark SPICE SHOT when it is
applied to ammunition. Based on this record, we know that
Serial No. 76661768
6
“shot” has been defined as something propelled by shooting,
especially lead or steel pellets,6 and that applicant sells
shot made of seasonings.
In the abstract, the word “Spice” appears to have
little, if any, significance when used in connection with
ammunition. However, the evidence shows that applicant
makes ammunition that is comprised of seasoning (or spice)
pellets (or shot). In fact, the website indicates that his
SEASON SHOT ammunition is shot (pellets) made of spice:
that is, spice shot. Accordingly, purchasers of
applicant’s product will immediately understand the mark
SPICE SHOT as describing the fact that the ammunition is
made of spice. They will not have to undertake a multiple
step reasoning process to understand from the mark
something about the product. The term SPICE SHOT tells
consumers exactly what the product is.
Applicant's argument that the relevant purchasers
would think of other possible meanings for the word “spice”
(e.g., “a small portion,” “something that gives zest or

6 The definition submitted by the Examining Attorney states that
“shot” is made of a “lead pellet,” but the definition submitted
by applicant is not so limited.
Serial No. 76661768
7
relish,” or “a pungent fragrant odor”) and the word “shot”
(e.g., “a home run in baseball,” “a photographic exposure,”
or “a medical or narcotics injection”) would require
considering the applied-for mark in a vacuum. These
meanings would clearly not come to mind when the term is
viewed in connection with ammunition. As a result, we are
not persuaded that purchasers would go through the
following technical mental exercise put forth by applicant:
Are SPICE SHOT goods medical or
narcotics injections having fragrant
odors? Are applicant’s goods
photographic exposures of scandalous
material? ARE SPICE SHOT goods small
servings of undiluted liquor?7

Moreover, in the composite mark SPICE SHOT, the words
“spice” and “shot” retain their ordinary meanings and do
not form a unique or incongruous meaning.
We recognize that determining whether a mark is
suggestive or descriptive often requires the drawing of
fine lines and the exercise of subjective judgment.
Indeed, this is such a case because, in our experience, we
find that applicant’s goods are unusual. However, the fact
that applicant may be the first or only manufacturer of
ammunition made of spices does not justify registration
when, as here, the mark projects only merely descriptive

7 Applicant’s Brief, p. 2.
Serial No. 76661768
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significance. Cf. In re National Shooting Sports
Foundation, 219 USPQ 1018, 1020 (TTAB 1983) (that applicant
may be the first and only user of a descriptive designation
does not justify registration).
In view of the foregoing, we find that applicant’s
mark SPICE SHOT in connection with “ammunition for
firearms” is merely descriptive.
Decision: The refusal to register is affirmed.