CSS Archery, LLC

Trademark Trial and Appeal Board

Sep 19, 2007

No. 76607721 (T.T.A.B. Sep. 19, 2007)

Mailed:
September 19, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re CSS Archery, LLC, assignee of Richwood Archery
Products, Inc.
________

Serial No. 76607721
_______

Todd E. Stockwell of Stockwell & Associates for CSS
Archery, LLC

John T. Lincoski Jr., Trademark Examining Attorney, Law
Office 113 (Odette Bonnet, Managing Attorney)
_______

Before Seeherman, Kuhlke and Wellington, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

CSS Archery, LLC, assignee of Richwood Archery
Products, Inc., has appealed from the final refusal of the
Trademark Examining Attorney to register TUNERZ, in
standard characters, for "sporting goods, namely compound
bow and traditional bow oscillation and vibration
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 76607721
2
dampeners" in Class 28.1 Registration has been refused
pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), on the ground that applicant’s mark is merely
descriptive of its goods, and its evidence of acquired
distinctiveness is insufficient to entitle it to
registration under Section 2(f).
Applicant and the Examining Attorney have filed
briefs. Applicant had requested an oral hearing, but
subsequently withdrew that request. With its appeal brief
applicant submitted a number of exhibits. The Examining
Attorney has objected to Exhibit 6, which "purports to show
the results of a Google search performed on November 29,
2006." Examining Attorney’s brief, n. 1. Because the
notice of appeal was filed on October 20, 2006, the
Examining Attorney contends that this exhibit is untimely.
We agree. Trademark Rule 2.142(d) provides that the record
in the application should be complete prior to the filing
of an appeal. Accordingly, we have not considered Exhibit
6 in rendering our decision.2

1 Application Serial No.76607721, filed August 16, 2004. The
application was originally filed on the basis of an intent to use
the mark, but applicant subsequently filed an amendment to allege
use, asserting first use and first use in commerce in August
2004. The amendment to allege use was accepted on May 8, 2005.
2 Even if we had considered this exhibit, it would not have
changed our decision herein. The exhibit essentially updates the
Google search originally submitted, but using as part of the
search term the name of the current applicant, rather than its
Ser No. 76607721
3
We note that in its appeal brief applicant has argued
that its mark is suggestive and not merely descriptive.
However, as the Examining Attorney pointed out in his
brief, after issuance of the July 7, 2005 Office action
making final the refusal of registration on the ground of
mere descriptiveness, applicant amended its application to
seek registration pursuant to Section 2(f), asserting that
its mark is entitled to registration because it has
acquired distinctiveness. This amendment represents an
acknowledgement by applicant that its mark is not
inherently distinctive. See Yamaha International Corp. v.
Hoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed.
Cir. 1988) (in cases where registration was initially
sought on the basis of distinctiveness, subsequent reliance
by the applicant on Section 2(f) assumes that the mark has
been shown or conceded to be merely descriptive).3

predecessor-in-interest. For the same reasons, as discussed
infra, that the first search has very limited probative value, so
would this search.
3 The Examining Attorney, in his brief, pointed out that
applicant did not seek registration under Section 2(f) in the
alternative, and therefore the amendment acts as an admission of
the mark’s descriptiveness. Applicant did not respond or
otherwise contradict this statement. It appears that applicant
may have simply inserted in its brief language about the
suggestiveness of its mark identical to that it had previously
used its response filed June 2, 2005. At that time, applicant
had not yet amended its application to seek registration under
Section 2(f).
Ser No. 76607721
4
Thus, the only issue for the Board to determine in
this appeal is whether TUNERZ has acquired distinctiveness
as a mark showing source in applicant. The burden is on
applicant to show acquired distinctiveness, and the more
descriptive the term is, the greater the amount of evidence
that is required to establish acquired distinctiveness.
See Yamaha International Corp. v. Hoshino Gakki Co., supra.
Accordingly, we must consider the evidence of the
descriptiveness of the mark in our assessment of whether
applicant has proven that its mark has acquired
distinctiveness.
First, we note that even at the point that applicant
was asserting that its mark was inherently distinctive, it
never denied that "tuners" is a merely descriptive term.
Rather, applicant has relied only on the misspelling of the
descriptive term "tuners" to assert that the mark is
suggestive. "It is the presence of the letter 'Z' that
causes the suggestion in the consumer's mind." Brief, p.
4.
Second, the Examining Attorney has submitted evidence
from third-party websites that shows "tuner" is a term used
in archery to reference a device used to dampen vibration
along the bowstring, or is used in combination with
Ser No. 76607721
5
dampeners as part of a stabilization system that absorbs
vibration. See, for example:
Greatree Archery
3D Stabilizer, 5-Rod w/Silicon Tuner
Silicon tuner absolutely eats all
vibrations and won’t change shape in
any condition.
www.greatreearchery.com

BEITER
As with all Beiter products, the
Centralizer was tested by top archers
world-wide and used successfully in
competitions.
Four carbon rods, positioned to form a
square are held together by plastic
blocks (called tuners) made from high
quality thermoplastics and elastomers:
the result is a new concept of
stabilization. Tests have shown that
the system is able to absorb more
vibration, so giving the archer less
problems while aiming and performing
the shot.
The distance between tuners (2 to 5)
can be individually chosen…. The
factory setting of the tuners avoids
resonance in the system; the tuners
themselves can be moved to offer the
opportunity of an individual
adaptation. However, if you don’t feel
comfortable with the stabilizer you
have tried, switch to a longer one
with, possibly, more tuners.
www.wernerbeiter.com

Online Catalog
Bowsports Online Shop
Cartel Multi-Rod Damper
A tuner and dampener built into one.
Will fit most carbon quad stabilizers
including Beiter and Cartel. Sold
individually.
www.leisure-tech.com

Ser No. 76607721
6
Merlin Archery Centre
Brand new stabilizer range from OMEGA
SYSTEMS. The ultimate stabilizer
system for recurve and compound bows.
This stabilizer set includes a long
rod, complete with tuner and dampeners,
plus 2 V-Bar short rods and dampeners.
(V-Bar mount sold separately)
Features—{listing, inter alia]
Easily adjustable tuner weight and
dampener that can also be rotated to
give a bias on one side.
[listing of other products, including]
Petron Tuner Weight
www.merlinarcherycentre.co.uk

Ebay listing
Beiter Centralizer 28” Long Rod 2
Tuners
One Beiter 28” Long Rod with two tuners
and an end cap that has been drilled
and tapped to accept a weight. …
Please view my other items for the
matching short rods and other archery
items.
http://cgi.ebay.com

Chiltern Online
Beiter centralizer with 2 tuners
Considered one of the best multirod
stabilizers available. Light design
and good damping qualities.
The two tuner version comes in lengths
of 26, 28 and 30 inches.
Beiter centralizer with 3 tuners
Considered one of the best multirod
stabilizers available. Light design
and good damping qualities.
The three tuner version….
www.chiltern-archery.co.uk

The foregoing evidence shows that "tuner" or the
plural "tuners" are highly descriptive terms for
Ser No. 76607721
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applicant's identified goods.4 Although applicant spells
"tuners" with a "Z,", the resulting mark TUNERZ retains its
highly descriptive meaning. The Examining Attorney has
pointed to numerous cases in which the Courts and the Board
have found a mark to be merely descriptive despite the fact
that it is misspelled. See, for example, In re Hercules
Fasteners, Inc., 203 F.2d 753, 97 USPQ 355 (CCPA 1953)
(FASTIE is phonetic spelling of "fast tie" and describes
feature of tube sealing machine); In re Hubbard Milling
Co., 6 USPQ2d 1239 (TTAB 1987) (MINERAL-LYX generic for
mineral licks for feeding livestock); In re State Chemical
Manufacturing Co., 225 USPQ 687 (TTAB 1985) (FOM equivalent
to "foam," and merely descriptive for foam rug shampoo).
Applicant's mark TUNERZ would be immediately
recognized by consumers as the equivalent of the
descriptive word "tuners." Not only is TUNERZ identical to
"tuners" for the first five letters, but the substitution
of a "Z" for an "S" as the last letter is not a
particularly odd spelling variation. In this connection,
the Examining Attorney has made of record third-party

4 We point out that the Examining Attorney has never taken the
position that TUNERZ is a generic term. In fact, throughout
examination, he has suggested that applicant consider amending
its application to the Supplemental Register, making this
suggestion for the first time shortly after applicant filed its
amendment to allege use.

Ser No. 76607721
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registrations for marks in which a "Z" has been substituted
for an "S" to make the plural form of the word, i.e.,
Registration No. 1823962 for READERZ for eyeglasses and
Registration No. 24772546 for PROPERTYMANAGERZ.COM for,
inter alia, providing an on-line bulletin board in the
field of real estate property management issues. These
marks were registered on the Supplemental Register, thus
showing that the "Z" did not obviate the descriptiveness of
the marks.
Accordingly, the slight misspelling of TUNERZ does not
take away from the highly descriptive nature of this word.
Because the mark is highly descriptive, a greater amount of
evidence is required to establish acquired distinctiveness.
The evidence submitted by applicant consists of the
declaration, dated August 4, 2005, of Richard D. Stoll, the
president of applicant's predecessor—in-interest. Mr.
Stoll states, essentially, "that print and Internet
marketing have been increased each year for goods since the
mark's first use in August 2004"; that applicant has had
repeat customers of the product associated with the mark as
well as new customers; and that applicant has made
"frequent and substantial use of the mark." The
declaration provided no actual sales or advertising
figures.
Ser No. 76607721
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Applicant also submitted an undated letter, rather
than a declaration, from Chuck Nease, Vice President of
Marketing and Product Development for applicant's
predecessor-in-interest. Although the letter is undated, a
fax date of March 13, 2006 is printed on it. Mr. Nease
states that his company has been marketing and advertising
archery accessories under the TUNERZ brand "for the past 24
months." This statement alone raises some questions,
because applicant's amendment to allege use states that it
did not begin to use the mark until August 2004 (less than
24 months before Mr. Nease's letter), and Mr. Stoll's
declaration confirms the August 2004 use date. The letter
also says that the products are used "in all states and
many foreign countries from France to Australia," and that
the accessories include "silencers, stabilizers and string
stops." Mr. Nease states that "in the last 18 months over
25 articles and advertisements have been ran [sic] in the
major trade and consumer magazines (Bowhunting World—Arrow
trade [sic]" and that "three of the largest archery
distributors are running our full-page Tunerz product ads
in their catalogs and web sites (Papes Archery--Kinsel's
Archery--Mike's Archery--3Rivers Archery)[sic]." He also
states that over 50,000 individual Tunerz brand products
were sold over the past 18 months, and that other
Ser No. 76607721
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manufacturing companies "are using our Tunerz products as
standard equipment for their crossbows and bows"; and that
"Horten Manufacturing and Excalibur Crossbows (two of the
largest crossbow companies in the world) have been selling
the Tunerz line in Cabela's Bass Pro shops, and many other
major catalog sales companies." Finally, he states that
"thousands of hours and thousands of dollars have been
invested into the Tunerz line of accessories to build a
brand name that shows the innovation and quality in all the
present and future products that we manufacture."
Given the highly descriptive nature of applicant's
mark, the declaration and letter and associated exhibits
are insufficient for applicant to meet its consequently
greater burden of proving acquired distinctiveness. The
information in Mr. Stoll's declaration is, to say the
least, rather general and vague. Statements such as print
and Internet advertising have been increased since the
introduction of the product one year earlier do not provide
any real information about the extent of such advertising.
Since presumably there was no advertising prior to the
introduction of the product, any change from zero would
represent an increase. Nor does the general statement that
applicant has made frequent and substantial use of the mark
provide any real evidence about applicant's use, —-the
Ser No. 76607721
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terms "frequent" and "substantial" are very subjective.
Certainly these general statements provide no evidence
about whether the relevant public has come to recognize
TUNERZ as a trademark of applicant's.
Although Mr. Nease's letter provides somewhat more
information, he has not provided any specific advertising
figures, merely making the general statement that
"thousands of hours and thousands of dollars have been
invested." Although he states that applicant has sold
50,000 individual products, it is not clear that these
products are the ones that are the subject of the
application. In this connection, we note that Mr. Nease's
letter says that accessories sold under the TUNERZ mark
include "silencers, stabilizers and string stops." Mr.
Nease also says that the products are sold in many foreign
countries, so we cannot ascertain how many of the 50,000
items were sold in the United States; obviously, acquired
distinctiveness of the mark relates to recognition by
consumers in the United States, not elsewhere.
Applicant has also submitted the search summary
results from a search retrieved by the Google search engine
for "Richwood Archery TUNERZ" (Richwood Archery is the name
of applicant's predecessor-in-interest). We consider this
exhibit to have very limited probative value. Although the
Ser No. 76607721
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summary states that 53 results were found, it appears from
the results excerpts that most of them are duplicates. For
example, the first two listings are from
www.customshootingsystems.com, and both have the date
August 14, 2005. Seventeen are from www.archerysite.net,
and all appear to be listings of "Reply #3 on January 3,
2005" at 10:04 pm, while another nine are from the same
website, and have identical text information. In any
event, the summaries are so truncated that we cannot
ascertain anything from them as to their content. See TBMP
Section 1208.03 and the cases cited therein (a search
result summary from a search engine, such as Yahoo! or
Google, which shows use of a phrase as key words by the
search engine, is of limited probative value).
In conclusion, the evidence submitted by applicant
fails to prove that its highly descriptive mark has
acquired distinctiveness. The mark has been in use only
since August 2004, and the limited time that the mark has
been used, and the rather vague evidence regarding the
extent of applicant's use and advertising of the mark for
its identified goods, is simply insufficient for us to
conclude that the mark has acquired distinctiveness.
Decision: In view of the fact that applicant has not
shown that its mark is entitled to registration pursuant to
Ser No. 76607721
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Section 2(f) of the Trademark Act, the refusal under
Section 2(e)(1) is affirmed.