David/Randall Associates, Inc.

Trademark Trial and Appeal Board

Mar 12, 2003

No. 76258134 (T.T.A.B. Mar. 12, 2003)

Mailed: March 12,2003
Paper No.9
DH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re David/Randall Associates, Inc.
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Serial No. 76/258,134
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Norman E. Lehrer, Esq. for David/Randall Associates, Inc.
Michael Engel, Trademark Examining Attorney, Law Office 108
(David Shallant, Managing Attorney).
_______
Before Hanak, Hohein and Bottorff, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
David/Randall Associates, Inc. has filed an application
to register the mark reproduced below for "hand railings for a
roof hatch".1
1 Ser. No. 76/258,134, filed on May 7, 2001, which is based on an
allegation of a bona fide intention to use the design shown above as a
trademark. The stippling is a feature of the mark and is not intended
to represent color.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/258,134
2
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §2(e)(1), on the basis
that, when used in connection with applicant's goods, the mark is
merely descriptive of them.
Applicant has appealed. Briefs have been filed and an
oral hearing was held. We reverse the refusal to register.
Preliminarily, we note that it is well settled that a
mark which is an illustration or representation of an applicant's
goods or services is considered to be merely descriptive thereof,
within the meaning of Section 2(e)(1) of the Trademark Act, if it
forthwith depicts information concerning any significant quality,
ingredient, characteristic, feature, function, purpose or use of
the goods or services. See, e.g., In re Abcor Development Corp.,
588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978) and Planters Nut &
Chocolate Co. v. Crown Nut Co., Inc., 305 F.2d 916, 134 USPQ 504,
507 (CCPA 1962). To be considered merely descriptive of goods or
services, the illustration or representation need not be
completely accurate, realistic or true-to-life, nor is it
necessary for such to depict all of the properties, functions or
manners of use of the goods or services. See, e.g., In re LRC
Products Ltd., 223 USPQ 1250, 1252 (TTAB 1984). It is instead
sufficient if the illustration or representation depicts a
significant attribute, subject or idea about the goods or
services. Moreover, whether an illustration or representation is
merely descriptive is determined not in the abstract but in
relation to the goods or services for which registration is
sought, the context in which it is being used on or in connection
Ser. No. 76/258,134
3
with those goods or services and the possible significance that
the matter would have to the average purchaser of the goods or
services because of the manner of its use. See In re Bright-
Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). Thus, "[w]hether
consumers could guess what the product [or service] is from
consideration of the mark alone is not the test." In re American
Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
However, an illustration or representation which is a
fanciful characterization, or which is more abstract or highly
schematic in nature, is considered to be a suggestive mark
because, when the goods or services are encountered under the
mark, a multi-stage reasoning process, or the utilization of
imagination, thought or perception, is required in order to
determine what attributes of the goods or services the mark
indicates. See, e.g., In re Abcor Development Corp., supra at
218; Planters Nut & Chocolate Co. v. Crown Nut Co., Inc., supra;
In re Mayer-Beaton Corp., 223 USPQ 1347, 1349 (TTAB 1984); In re
LRC Products Ltd., supra; In re General Electric Co., 209 USPQ
425, 427 (TTAB 1980); and In re Laitram Corp., 194 USPQ 206, 209
(TTAB 1977). As has often been stated, there is a thin line of
demarcation between a suggestive mark and a merely descriptive
one, with the determination of which category a mark falls into
frequently being a difficult matter involving a good measure of
subjective judgment. See, e.g., In re Atavio, 25 USPQ2d 1361
(TTAB 1992) and In re TMS Corp. of the Americas, 200 USPQ 57, 58
(TTAB 1978). The distinction, furthermore, is often made on an
intuitive basis rather than as a result of precisely logical
Ser. No. 76/258,134
4
analysis susceptible of articulation. See In re George Weston
Ltd., 228 USPQ 57, 58 (TTAB 1985).
Applicant, in its initial brief, "acknowledges that an
accurate representation of its goods would be considered to be
merely descriptive thereof," but contends that the mark which it
seeks to register "is a fanciful characterization rather than a
representation of the goods." In particular, applicant argues
that "the present case is much more akin to and should be
controlled by In re LRC Products Ltd.," supra, which as applicant
points out:
In LRC Products, the mark was the design of
two hands or two gloves and the goods ...
were gloves. There is no question that the
representation in the ... design is a pair of
gloves or a pair of hands. While the Board
agreed that the mark may suggest or resemble
the goods, it found that it did not merely
describe them. ....
Likewise, in this case, applicant maintains that "its
mark is sufficiently arbitrary and fanciful as to remove it from
the category of merely descriptive marks." According to
applicant:
The "railing" shown in the drawing is highly
fanciful and does not resemble the actual
product being sold. Furthermore, the
"railing" in the drawing is not the only
feature thereof. Rather, it is a unitary
mark showing the fanciful "railings" in
combination with a shaded base at the bottom
thereof. Thus, Appellant's mark is not
simply the representation of a "railing."
Even further, there is no evidence that
Appellant's mark is a common symbol or design
used by the trade to represent hand railings.
In re LRC Products Ltd. at 1252. Even
further, and as pointed out by the Board in
LRC [Products], registration of this mark to
Appellant will not deprive competitors of the
free use of representations or illustrations
Ser. No. 76/258,134
5
of their products in advertising or sale of
their goods.
Lastly, applicant asserts that, as in LRC Products, supra, "if
there be any doubt on the question of mere descriptiveness, it
should be resolved in favor of publication."
The Examining Attorney, on the other hand, argues that
the "illustration [constituting applicant's mark] is more
realistic of ... 'hand railings for a roof hatch' than stylized"
and that this case should therefore be controlled by the decision
in In re Underwater Connections, Inc., 221 USPQ 95, 96 (TTAB
1983), in which the Board held that an "admitted[ly] stylized
drawing of a compressed gas tank used in diving" was merely
descriptive of travel tour services involving underwater diving.
In resolving the issue presented in this case, we note that the
advertising literature submitted by applicant provides the sole
illustrations of its goods. Such literature shows that applicant
offers several different styles of roof hatch hand railings, of
which the model shown in the picture below most closely resembles
applicant's mark:
Ser. No. 76/258,134
6
In view thereof, the Examining Attorney asserts in his
brief that:
Although applicant's illustration is not
an exact representation of its goods, it
looks very much like an exact representation
of some other party's hand railings for a
roof hatch. In other words, even though
applicant's hand railings for a roof hatch
are squared off and not rounded, issuing a
registration in this case would effectively
deprive competitors whose hand railings are
rounded of the free use of illustrations of
their products.
Applicant's illustration has none of the
features which made the illustration in LRC
Products fanciful. Applicant is not claiming
color .... There is nothing "abnormal,"
"unnatural" or "awkward" about the depiction
of the goods found in applicant's mark.
Since these adjectives were central to the
Board's holdings in both LRC Products and
General Electric [that the marks therein were
suggestive], this must be what the Board
meant when they described these marks as
"stylized" rather than "realistic", since the
illustration at issue in Underwater
Connections was admittedly "a stylized
drawing of a compressed gas tank used in
diving." 221 USPQ at 96. Although stylized,
there is nothing fanciful about applicant's
mark.
The Examining Attorney accordingly concludes that "[a]pplicant's
mark is a visual representation of the goods ... [identified in
the application], and thus [is] merely descriptive of those
goods."
We concede that this is a very close case. However, of
the cases of which we aware, the most analogous governing
authority would seem to be that of In re Curtiss-Wright Corp.,
183 USPQ 621, 622 (TTAB 1974), in which the Board found that the
design sought to be registered, which the applicant therein
argued was a "highly schematic or fanciful representation of a
Ser. No. 76/258,134
7
transverse cross-sectional view of a Wankel-type rotary engine,"
was on the whole "an arbitrary design which suggests the goods
themselves to one familiar with Wankel-type rotary engines." As
likewise is the case herein, while the illustration which
applicant seeks to register as its mark, when compared with a
picture of its actual goods, is clearly modeled on the goods
themselves, such illustration nonetheless is basically an
abstract design or silhouette which schematically suggests
certain features of applicant's roof hatch hand railings but
which lacks sufficient overall accuracy or detail to be
considered merely descriptive of the goods.2 Stated a bit
differently, the level of stylization utilized in the perspective
view of the goods in applicant's mark, ranging from the starkly
bold manner in which the "hand railings," with their exaggerated
curvature, are depicted, to the fanciful rhomboidal shape of the
stippling representing the "roof hatch" over which applicant's
goods would be installed, is just enough to preclude immediate
recognition of applicant's mark as a design showing its goods and
their use. Furthermore, as in LRC Products, supra, there is no
evidence of record that the illustration which constitutes
applicant's mark is a common symbol or design used by the trade
to represent roof hatch hand railings and/or depict their manner
2 To be sure, applicant's mark approaches the level of detail to be
found in the marks at issue in such cases as In re Underwater
Connections, Inc., supra, [depiction of scuba tank] and In re Ratcliff
Hoist Co., Inc., 157 USPQ 118, 119 (TTAB 1968) [representation of
hoist held merely descriptive of load sustaining devices and
components thereof], but the profile-like view of what, upon
reflection, would be taken to be hand railings instead of, for
instance, two stylized letter "A"s, creates just enough of a pause as
to require the use of some imagination, thought or perception.
Ser. No. 76/258,134
8
of use, and registration of such illustration will not deprive
competitors of applicant of the free use of pictures or other
graphic representations of their products in the advertising and
sale of such goods.
In essence, the illustration which constitutes
applicant's mark is sufficiently abstract, in the sense that at
first glance it is unnatural, exaggerated, or otherwise unusual
in appearance, that the overall commercial impression thereof
would be that of a schematic or fanciful depiction which suggests
the nature, function or use of its goods. At the very least, we
have doubt that such mark is so accurate, realistic or true-to-
life in its representation of roof hatch hand railings as to be
merely descriptive thereof by immediately conveying a purpose,
function or use of the goods. In view thereof, we resolve such
doubt, in accordance with the Board's practice, in favor of the
publication of applicant's mark for opposition. See, e.g., In re
Conductive Systems, Inc., 220 USPQ 84, 86 (TTAB 1983); In re
Morton-Norwich Products, Inc., 209 USPQ 791 (TTAB 1981); and In
re Gourmet Bakers, Inc., 173 USPQ 565 (TTAB 1972).
Decision: The refusal to register under Section
2(e)(1) is reversed.