CPI Plastics Group Ltd.

Trademark Trial and Appeal Board

Feb 22, 2007

No. 76551611 (T.T.A.B. Feb. 22, 2007)

THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.

Mailed:
February 22, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re CPI Plastics Group Ltd.
________

Serial No. 76551611
_______

Robert C. Bertin of Swidler Berlin LLP for CPI Plastics
Group Ltd.

Nicholas K. D. Altree, Trademark Examining Attorney, Law
Office 107 (J. Leslie Bishop, Managing Attorney).
_______

Before Quinn, Zervas, and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

CPI Plastics Group Ltd. filed an application to
register the mark THE ULTIMATE LINER for “plastic garbage
bags.”1 Registration was refused on the ground that THE
ULTIMATE LINER used in connection with “plastic garbage
bags” is merely descriptive. Section 2(e)(1) of the Lanham
Act, 15 U.S.C. §1052(e)(1). When the refusal was made

1 Application Serial No. 76551611, filed October 16, 2003,
claiming December 10, 1973 as the date of first use anywhere and
the date of first use in interstate commerce.
Serial No. 76551611
2
final, applicant appealed. Both applicant and the
examining attorney filed briefs. We affirm.
The examining attorney contends that the mark THE
ULTIMATE LINER used in connection with plastic garbage bags
is merely descriptive because it comprises the combination
of a laudatory term (“Ultimate”) and a generic term
(“Liner”). The examining attorney supports the refusal
with the following evidence:
1. A dictionary definition of the word “Ultimate” as
“representing or exhibiting the greatest possible
development of sophistication.”2

2. Excerpts from applicant’s web site that reference
applicant’s plastic garbage bags as “industrial
strength bags.” According to the examining attorney,
applicant’s advertising message is that the plastic
garbage bags “exhibit the greatest possible
development” in garbage bags;3

3. Ten registrations from the Supplemental Register
that demonstrate the laudatory nature of the word
“Ultimate” when used to modify a generic word; and,

4. Two third-party web sites (www.business-
supply.com and www.royalbag.com) that show use of the
word “Liner” to describe plastic garbage bags. The
plastic garbage bags advertised by Business-Supply.com
are listed under the heading “Trash Bags & Liners.”
The products identified as “liners” are also referred
to as “bags” (e.g., “Sparco High Density Can Liners”
are “Translucent trash bags”). The plastic garbage
bags advertised by RoyalBag.com are listed under the
heading “Garbage bags/Trash liners.” All of the
individual products are identified as “liners.”

2 The American Heritage Dictionary of the English Language, (3d
ed. 1992)(electronic version).
3 Examining Attorney’s Brief, p. 3.
Serial No. 76551611
3
Applicant argues that its mark is not merely
descriptive because THE ULTIMATE LINER does not directly
convey knowledge about applicant’s plastic garbage bags.
Applicant contends that the word “Liner” has numerous
meanings other than “a lining; or material used as a
lining” such as the following:
One that draws or makes a line;
A commercial ship or aircraft;
A line drive; or,
One who makes or puts in linings.4
In addition, applicant contends that consumers are just as
likely to associate the term “liner” with shower curtains
or highlighting markers. In view of the foregoing,
applicant concludes that consumers would be required to
investigate further to determine the meaning of the word
“Liner.”
Applicant argues that the word “Ultimate” also has
many meanings other than the laudatory meaning of
“representing or exhibiting the greatest development or
sophistication,” such as the following:
Fundamental;
Greatest in size or significance;

4 Webster’s Ninth Collegiate Dictionary, p. 638 (1990)
Serial No. 76551611
4
Most remote in time or space; or,
Eventual.5
In view of the foregoing, applicant argues that it is not
possible for consumers to understand the true nature of
applicant’s goods without further investigation. “A
consumer who encounters the Applicant’s mark will not
immediately know what the goods are used for, what (if
anything) they line, or what element or aspect of the liner
is ultimate. Thus, consumers are unable to deduce
immediately upon seeing Applicant’s mark that “THE ULTIMATE
LINER” refers to plastic garbage bags.”6 (Emphasis in the
original). In other words, a consumer must undertake an
multi-stage reasoning process.
Applicant also points out that the use of the word
“Ultimate” to describe its plastic garbage bags does not
specifically identify any particular quality,
characteristic, or feature of applicant’s products. Since
the quality of the products is not clear, applicant
concludes that the mark must be suggestive.
Applicant asserts that the examining attorney
improperly analyzed its mark by considering each word
separately. When viewed in its entirety, applicant

5 Id. at 1194.
6 Applicant’s Brief, p. 5.
Serial No. 76551611
5
contends that the mark THE ULTIMATE LINER creates a
separate, non-descriptive commercial impression. Applicant
supports this conclusion by pointing out that there is no
evidence that THE ULTIMATE LINER has any meaning in the
relevant industry or that plastic garbage bags are commonly
referred to as THE ULTIMATE LINER.7
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the goods or services with
which it is used, or intended to be used. In re Gyulay,
820 F.2d 1216, 3 USPQ 1009 (Fed. Cir. 1987). Whether a
particular term is merely descriptive is determined in
relation to the goods or services for which registration is
sought and the context in which the term is used, or is
intended to be used, not in the abstract or on the basis of
guesswork. In re Abcor Development Corp., 588 F.2d 811,

7 While applicant did not submit any evidence, it stated “that
the Principal Register is replete with marks including the term
‘ULTIMATE.’” (Applicant’s Brief, p. 8). The Board does not take
judicial notice of registrations merely because they reside in
the Patent and Trademark Office. In re Duofold Inc., 184 USPQ
638, 640 (TTAB 1974). Since applicant did not make any
registrations of record, we have not considered the argument as
it relates to registered marks. Even had the registrations been
made of record, we would not have been persuaded that the
examining attorney’s refusal on the facts presented in this case
was erroneous. In determining issues of descriptiveness, prior
decisions are of little value because each case must be
determined on its own facts. In re Quick-Print Copy Shop, Inc.,
616 F.2d 523, 205 UPSQ 505, 507 (CCPA 1980).
Serial No. 76551611
6
200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ 1222,
1224 (TTAB 2002). In other words, the issue is whether
someone who knows what the goods or services are will
understand the mark to convey information about them. In
re Tower Tech, Inc., 64 USPQ 1314, 1316-1317 (TTAB 2002);
In re Patent & Trademark 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 UPSQ 365, 366 (TTAB 1985).
When two or more merely descriptive terms are
combined, the determination of whether the composite mark
also has a merely descriptive significance turns on the
question of whether the combination of terms evokes a new
and unique commercial impression. If each component
retains its merely descriptive significance in relation to
the goods or services, the combination results in a
composite that is itself merely descriptive. See, In re
Tower Tech, Inc., supra (SMARTTOWER merely descriptive of
commercial and industrial cooking towers); In re Sun
Microsystems Inc., 59 USPQ 1084 (TTAB 2001) (AGENTBEANS
merely descriptive of computer programs for use in
developing and deploying application programs); In re
Putnam Publishing Co., 39 USPQ2d 2021 (TTAB 1996) (FOOD &
Serial No. 76551611
7
BEVERAGE ONLINE merely descriptive of new information
services in the food processing industry).
“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).
We agree with the examining attorney that the words
“The,” “Ultimate,” and “Liner” together have descriptive
significance when used in connection with applicant’s
plastic garbage bags. The components of the mark are
common words with readily understood meanings, which when
combined, produce a mark with merely descriptive
significance. The fact that applicant may be the first and
possibly the only user of this designation does not alter
the significance of THE ULTIMATE LINER and bestow upon
applicant any proprietary rights. In re Pharmaceutical
Innovations, Inc., 217 USPQ 365, 367 (TTAB 1983); In re
Cosmetic Factory, Inc., 208 USPQ 443, 447 (TTAB 1980).
In view of the two websites that show use of the word
“Liner” in reference to a garbage bag, we find that the
Serial No. 76551611
8
word “Liner” is a synonym for a garbage bag. When used in
connection with plastic garbage bags, consumers immediately
understand the significance or meaning of the word “Liner”
without having to resort to thought, logic, or a multi-
stage reasoning process. Consumers are likely to view the
word “Liner” as a descriptive word signifying a garbage
bag.
Contrary to applicant’s argument, the fact that the
word “Liner” has more than one meaning is not controlling
because descriptiveness is determined in relation to the
goods for which registration is sought. In re Chopper
Industries, 258, 259 (TTAB 1984); In re Bright-Crest, Ltd.,
205 USPQ 591, 593 (TTAB 1979). So long as any one of the
meanings of a word is descriptive, the word may be
considered to be merely descriptive. In re Chopper
Industries, supra. “The question is whether someone who
knows what the goods or services are will understand the
mark to convey information about them.” In re Tower Tech
Inc., supra. One of the definitions of “Liner” is
“something serving as a lining.”8 In this case, we have no
doubt that person who is familiar with applicant’s plastic

8 Dictionary.com Unabridged (V.1.1.) based on the Random House
Unabridged Dictionary (2006). The Board may take judicial notice
of dictionary definitions. Notre Dame du Lac v. J. C. Gourmet
Food Imports Co., Inc., 213 UPSQ 594, 596 (TTAB 1982), aff’d, 703
F.2d 1372, 217 UPSQ 5050 (Fed. Cir. 1983).
Serial No. 76551611
9
garbage bags will understand, without resort to
imagination, conjecture, or speculation, that the word
“Liner” refers to a garbage bag because garbage bags line
trash cans.
In the context of the mark sought to be registered,
“Ultimate” is a laudatory term. Laudatory or “puffing”
marks are regarded as a condensed form of describing the
character or quality of the goods. 2 McCarthy On
Trademarks and Unfair Competition §11:17 (4th ed. 2006).
See also, Burmel Handkerchief Corp. v. Cluett, Peabody &
Co., Inc., 127 F.2d 318, 53 USPQ 369, 372 (CCPA 1942)(“Such
expressions are a condensed form of describing in detail
the outstanding character or quality of the objects to
which they are applied”). As applied to THE ULTIMATE
LINER, the word “Ultimate” describes, in a condensed
fashion, every characteristic as to material, quality, and
durability that the best plastic garbage bags should have.
Contrary to applicant’s arguments, there is nothing of
record to support applicant’s contention that the word
“Ultimate” has any meaning other than one that would
describe the characteristics of a plastic garbage bag.
Applicant’s advertising states that THE ULTIMATE LINER are
“industrial strength bags” thereby demonstrating use
consistent with a characteristic of a garbage bag.
Serial No. 76551611
10
Although, as stated in In re Nett Designs, Inc., 236 F3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001), the word
“Ultimate” may be suggestive or descriptive depending upon
context and other factors affecting public perception,
based on the record before us, the mark THE ULTIMATE LINER,
used in connection with plastic garbage bags, is an
expression of preeminence that immediately describes a high
quality garbage bag without the need for any imagination,
conjecture, or speculation.
In view of the foregoing, we find that the mark THE
ULTIMATE LINER used in connection with plastic garbage bags
is merely descriptive.
Decision: The refusal to register is affirmed.