Don Granatstein

Trademark Trial and Appeal Board

Dec 11, 2007

No. 76600305 (T.T.A.B. Dec. 11, 2007)

Mailed: December 11, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Don Granatstein

Serial No. 76600305

___________

Eric R. Pellenbarg and Adam E. Crall of Shutts & Bowen for
Don Granatstein.

Rudy Singleton, Trademark Examining Attorney, Law Office 102
(Thomas V. Shaw, Managing Attorney).
____________

Before Walters, Kuhlke and Walsh, Administrative Trademark
Judges.

Opinion by Walters, Administrative Trademark Judge:

Don Granatstein has filed an application to register on
the Principal Register the mark ALTERNATIVE LIFESTYLE
EXCHANGE for “travel and vacation services, namely, making
reservations and booking for temporary lodging,” in
International Class 43.1

1 Serial No. 76600305, filed July 1, 2004, based on an allegation of a
bona fide intention to use the mark in commerce.

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 76600305
2
The examining attorney has issued a final refusal to
register, under 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 in connection with his services.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We affirm the refusal
to register.
The examining attorney contends that the mark is merely
descriptive because it “describes the salient characteristic
of the applicant’s services, namely, accommodation
reservation services targeted to individuals who engage in
alternative lifestyles [and] that facilitate the exchange of
vacation lodging” (brief, p. 4). In support of his
position, the examining attorney submitted excerpts from
articles retrieved from the NEXIS database and from Internet
websites showing the use of the term “alternative
lifestyle(s),” and excerpts from Internet websites showing
use of the term “exchange” in connection with vacations and
travel. The examining attorney also argues that, if the
Board should find that “alternative lifestyle(s)” describes
the intended user of the identified services, this renders
the term merely descriptive as well; and that, while
“exchange” may have different meanings in other contexts, it
is the context of the services identified in the application
that is relevant. The examining attorney concludes that the
Serial No. 76600305
3
combination of the two merely descriptive terms,
“alternative lifestyle” and “exchange,” creates no
incongruity and ALTERNATIVE LIFESTYLE EXCHANGE remains
merely descriptive herein. The record includes definitions
of “alternative lifestyles” as “an unconventional way of
life: a way of living adopted by people who reject the
prevailing lifestyle …” (www.encarta.msn).
The following excerpts are representative samples of
the evidence submitted by the examining attorney from the
NEXIS database:
Chicago Tribune, February 8, 2004: Gays and
lesbians can rejoice at the first-ever cruise for
alternative lifestyle families, setting sail from
New York, July 11, under the auspices of R Family
Vacations, which was founded by talk-show host
Rosie O'Donnell and her partner Kelli O'Donnell.
The Atlanta Journal and Constitution, January 21,
2001: Over the years, Key West has evolved from a
he-man haunt (Ernest Hemingway and Harry Truman
hung out here) to an alternative-lifestyle haven
for hippies, gays and others.
Tulsa World (Oklahoma), December 28, 1998: "The
Curmudgeon's Guide to Child-Free Travel." The
book is for adults who don't want children around
during their vacations.
Author Jennifer Lawler provides a variety of
adult-oriented vacations in the United States and
abroad. They focus on romance, adventure,
learning, culture, seniors and alternative life-
styles.

The examining attorney submitted excerpts from eight
travel-related websites referring to “alternative lifestyle”
travel and five travel-related websites referring to and
specializing in vacation “exchanges,” which includes
Serial No. 76600305
4
travelers exchanging homes or exchanging timeshare weeks
and/or timeshare locations. The following excerpts are a
representative sample:
www.eHow.com: “How to Buy It: Alternative
Lifestyle Travel Service”

www.about.com: “Naturist, Nude or Topless Options
and Alternative Lifestyle Travelers – If you’re
gay or lesbian or looking for naturist resorts or
topless or nude beaches, this is the place to find
information especially for you.”

www.neworleanscvb.com: “New Orleans Convention
and Visitors Bureau – Alternative Lifestyle Groups
– Uniquely New Orleans - New Orleans has become
the ‘Hot Spot’ for international and domestic gay
and lesbian travelers.”

www.chiff.com: “check out the scene before you
arrive to find the best gay, lesbian and
alternative lifestyle friendly spots on the planet
….”

www.4homex.com: “Home exchange is the fun and
affordable way for families, singles and seniors
to holiday travel and save money.”

www.intervac.com: “We invented home exchange for
vacations some fifty years ago in Europe. Ever
since we have grown from referrals by thousands of
satisfied members who have proven this unique
travel concept – one exchange at a time.”

www.tradingplaces.com: “Welcome to Trading
Places’ Vacation Exchange Club. Take advantage of
Trading Places’ preferred inventory of vacation
weeks and unique opportunities to vacation in new
ways each year.”

Applicant contends that the proposed mark creates a
distinctive unitary mark that the examining attorney has
improperly dissected; and that ALTERNATIVE LIFESTYLE
EXCHANGE is at most suggestive. In arguing this point,
Serial No. 76600305
5
applicant makes several contradictory statements in his
brief that he seeks to clarify in his reply brief by stating
that “applicant does not argue or admit that the wording
‘Alternative Lifestyle’ is descriptive of a potential
segment of consumers”; rather, applicant contends that “the
examining attorney has misapplied the descriptiveness
standard” and that “the appropriate legal standard for
descriptiveness requires a focus on the services – not a
focus on a potential segment of consumers for the identified
services.” (Reply brief, p. 4.)
Applicant also argues that “exchange” has numerous
meanings. Applicant submitted a definition of “exchange” in
pertinent part as “the act of giving or taking one thing in
return for another which is regarded as an equivalent”
(www.brainydictionary.com) and makes the following
statement:
[A] consumer would initially be presented with the
mark and have to use his or her imagination to
grasp that ALTERNATIVE LIFESTYLE EXCHANGE relates
to a service for making reservations and bookings
for temporary lodging. The mark could just as
easily relate to an Internet ‘chat room’ where
individuals swap various ideas relating to
‘alternative lifestyles.’ Or the mark could
relate to a retail store selling various items,
services, etc.

In this regard, applicant submitted excerpts from two
Internet websites, one showing use of the term
“adoption exchange” and the other showing use of the
term “exchange” in connection with the game of chess.
Serial No. 76600305
6
The test for determining whether a mark is merely
descriptive is whether it immediately conveys information
concerning a quality, characteristic, function, ingredient,
attribute or feature of the product or service in connection
with which it is used, or intended to be used. In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed.
Cir. 2007); In re Engineering Systems Corp., 2 USPQ2d 1075
(TTAB 1986); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB
1979).
We agree with the examining attorney and find that the
evidence establishes that “alternative lifestyles” has a
merely descriptive meaning, as noted herein, that is
understood and used in the travel industry, with vacations
and destinations specifically identified as friendly to, or
organized for, “alternative lifestyle” individuals and
families. Additionally, the record establishes that, in the
context of travel and vacation services, the noun “exchange”
has a distinct meaning, as noted herein. Each of these
terms is merely descriptive in connection with the
identified travel and vacation services. “Alternative
lifestyles” is merely descriptive of the likely target
audience for applicant’s travel services, or it will be so
perceived by potential customers. “Exchange” is merely
descriptive of a type of vacation travel service, which is
encompassed by applicant’s identification of services.
Serial No. 76600305
7
Moreover, the combination of these two merely
descriptive terms, “alternative lifestyles” and “exchange,”
does not give rise to a distinctive mark. The combined term
ALTERNATIVE LIFESTYLES EXCHANGE is not unique or
incongruous, nor does it create a meaning different from the
meanings of the individual terms. In connection with the
identified services, the mark is likely to be understood by
prospective consumers to involve reservations and bookings
of vacation exchanges for alternative lifestyle travelers.
These are significant aspects of the identified services.
Applicant’s arguments to the contrary are not well
taken. It is not necessary, in order to find that a mark is
merely descriptive, that the mark describe each feature of
the goods or services, only that it describe a single,
significant quality, feature, etc. In re Venture Lending
Associates, 226 USPQ 285 (TTAB 1985). Further, it is well-
established that the determination of mere descriptiveness
must be made not in the abstract or on the basis of
guesswork, but in relation to the goods or services for
which registration is sought, the context in which the mark
is used, and the impact that it is likely to make on the
average purchaser of such goods or services. In re
Recovery, 196 USPQ 830 (TTAB 1977).

Serial No. 76600305
8
Applicant’s argument that this case is analogous to
Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc.,
687 F.2d 563, 215 USPQ 662 (2nd Cir. 1982) is misplaced.
This case does not stand for the proposition, argued by
applicant, that “[a] mark which describes the aspirations or
attributes of the end users of a product or service is
suggestive and therefore entitled to trademark protection
without a showing of secondary meaning.” (Brief, p. 3.)
This case is distinguishable from the case herein on its
facts. Playboy Enterprises was an infringement action
finding a likelihood of confusion between PLAYBOY and
PLAYMEN for magazines. In considering the marks, the
Appeals Court agreed with the District Court’s finding that
the PLAYBOY mark is “distinctive and enjoy[s] wide
recognition” and noted that “PLAYBOY is a mark of value due
in large part to the longstanding success of PLAYBOY
magazine” and that PLAYBOY is suggestive rather than
descriptive (215 USPQ at 665). In this regard, the court
stated “Although the word may signify the aspirations of
PLAYBOY's readership, it does not describe the product or
its contents. Also, the PLAYBOY mark has been registered by
the United States Patent and Trademark Office, which further
indicates that the mark is not merely descriptive and gives
to it a strong presumption of validity. 15 U.S.C. §1057(b)”
(Id).
Serial No. 76600305
9
In conclusion, when applied to applicant’s services,
the term ALTERNATIVE LIFESTYLE EXCHANGE immediately
describes, without conjecture or speculation, a significant
feature or function of applicant’s services as noted herein.
Nothing requires the exercise of imagination, cogitation,
mental processing or gathering of further information in
order for purchasers of and prospective customers for
applicant’s services to readily perceive the merely
descriptive significance of the term ALTERNATIVE LIFESTYLE
EXCHANGE as it pertains to applicant’s services.
Decision: The refusal under Section 2(e)(1) of the Act
is affirmed.