Cigarettes Cheaper!

Trademark Trial and Appeal Board

Sep 17, 2001

No. 75744177 (T.T.A.B. Sep. 17, 2001)

9/17/01

Paper No. 11
EJS

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Cigarettes Cheaper!
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Serial No. 75/744,177
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Dirks B. Foster of Townsend and Townsend and Crew LLP for
Cigarettes Cheaper!

Hanno Rittner, Trademark Examining Attorney, Law Office 115
(Tomas Vlcek, Managing Attorney)
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Before Simms, Seeherman and Walters, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Cigarettes Cheaper! has appealed from the final
refusal of the Trademark Examining Attorney to register
PACKS AT CARTON PRICES as a trademark for cigarettes.1
Registration has been refused pursuant to Sections 1, 2 and
45 of the Trademark Act, 15 U.S.C. 1051, 1052 and 1127, on

1 Application Serial No. 75/744,177, filed July 6, 1999, and
asserting first use and first use in commerce on April 26, 1999.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/744,177
2
the grounds that the applied-for phrase does not function
as a trademark.
The appeal has been fully briefed, but applicant did
not request an oral hearing.
We affirm the refusal of registration.
The substitute specimens submitted by applicant
include a photograph of a carpet in which the words “Packs
at carton prices!” appear on a yellow square before
shelving filled with cigarette packs. Applicant states
that this display is “of many different brands of
cigarettes, including some owned by Applicant.” Response
filed March 27, 2000. The cigarettes placed on the lowest
shelf, in closest proximity to the words, are MARLBORO and
CAMEL brands. The next higher shelf includes CARLTON, PALL
MALL and LUCKY STRIKE. None of these brands appears to be
applicant’s.
The second substitute specimen is a sticker placed on
the glass door of applicant’s store in which, as the record
indicates, various brands of cigarettes, both applicant’s
and others, are sold. The sticker has the words CIGARETTES
CHEAPER! (applicant’s name) in large letters, with the
words “Packs at carton prices!” depicted in a yellow box.
We also note that materials from applicant’s website
state that applicant is a national chain of retail
Ser No. 75/744,177
3
cigarette stores and that it, inter alia, finds cigarettes
sold throughout the world and sells the various brands in
its stores. The website also indicates that “we sell packs
at 10% of carton prices.”
After reviewing the specimens and other materials of
record, we agree with the Examining Attorney that PACKS AT
CARTON PRICES fails to function as a trademark which
distinguishes applicant’s cigarettes from those of others.
As the phrase is used on the specimens, consumers would not
regard it as identifying applicant’s own cigarettes.
Rather, it appears to refer to all the cigarettes sold in
applicant’s stores, including the brands of third parties.
It must be remembered that applicant is seeking to
register PACKS AT CARTON PRICES for cigarettes, not for
retail cigarette store services. As the phrase is used by
applicant it appears to refer to all the cigarettes in the
store and/or in the six-shelf high display. It is not
possible to make a distinction between applicant’s own
cigarettes, and those of third parties. As a result,
consumers would not perceive PACKS AT CARTON PRICES as a
trademark identifying applicant’s own goods and
distinguishing them from others. Accordingly, we find that
PACKS AT CARTON PRICES does not function as a trademark.
Decision: The refusal of registration is affirmed.