Future First LLC

Trademark Trial and Appeal Board

Dec 22, 2008

No. 78769110 (T.T.A.B. Dec. 22, 2008)

Mailed:
December 22, 2008
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Future First LLC
________

Serial No. 78769110
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Larry M. Meyers of Larry Meyers, P.C. for Future First LLC.

Jordan A. Baker, Trademark Examining Attorney, Law Office
102 (Karen M. Strzyz, Managing Attorney).
_______

Before Seeherman, Walters and Bucher, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Future First LLC seeks registration on the Principal
Register of the mark Banana Chair (in standard character
format) for goods identified in the application as
“furniture, chair” in International Class 20.1
The Trademark Examining Attorney refused registration
on the ground that the term is merely descriptive under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 78769110 was filed on December 8,
2005 based upon applicant’s claims of first use anywhere and
first use in commerce at least as early as May 1974.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78769110
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§ 1052(e)(1), and furthermore, that applicant’s evidence of
acquired distinctiveness under Section 2(f) of the Act is
insufficient to overcome the Section 2(e)(1) refusal.
After the Trademark Examining Attorney made the refusal
final, applicant appealed to this Board. We reverse the
refusal to register.
Rory Scott Dean, applicant’s owner, states that he
invented a legless rocking chair having a curved bottom, and
began marketing it in 1974 under the trademark “Banana
Chair.” These chairs are designed for lounging, watching
television, or playing video games. They are inexpensive
($19 to $59 at retail), often marketed along with casual
furniture such as bean bag chairs.
The Trademark Examining Attorney contends that the term
“banana chair” is the common commercial name for a curved,
legless rocking chair that is not associated with any one
particular source.
A mark is merely descriptive, and therefore
unregistrable pursuant to the provisions of Section 2(e)(1)
of the Trademark Act, if it immediately conveys “knowledge
of a quality, feature, function, or characteristic of the
goods or services.” In re Bayer Aktiengesellschaft, 488
F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007). A mark is
suggestive, and therefore registrable on the Principal
Serial No. 78769110
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Register without a showing of acquired distinctiveness, if
imagination, thought or perception is required to reach a
conclusion on the nature of the goods or services. “Whether
a given mark is suggestive or merely descriptive depends on
whether the mark ‘immediately conveys … knowledge of the
ingredients, qualities, or characteristics of the goods …
with which it is used,’ or whether ‘imagination, thought, or
perception is required to reach a conclusion on the nature
of the goods.’” (citation omitted) In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987); In re Home
Builders Association of Greenville, 18 USPQ2d 1313 (TTAB
1990); and In re American Greetings Corp., 226 USPQ 365
(TTAB 1985).
It is the Examining Attorney’s position, as set out in
his brief, that:
The applicant’s mark merely describes a
common commercial name for a particular kind
of chair []. Applicant’s chair is in a
similar shape to that of the banana fruit,
and chairs in an identical or similar shape
and size to those produced by applicant and
by others have come to be known as [] “banana
chairs.” Although the evidence in the record
shows this kind of curved, legless,
upholstered chair [] var[ies] in style and
size, all of the chairs feature a basic set
of similarities that would allow a consumer
to recognize a highly similar “banana” shape.
The evidence of record convincingly shows the
wording “banana chair” to refer to a common
Serial No. 78769110
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style of chair that is not associated with
any particular trademark source.2

In response to the initial refusal, applicant submitted
for the record a declaration about Mr. Rory Scott Dean’s
history of inventing the “Banana Chair” in 1974, and
proffered a series of newspaper advertisements (1988 to
1994) promoting its Banana Chairs that were available in
then-existing retail establishments in Utah.
The Trademark Examining Attorney concludes that the
resemblance between the shape of these chairs and a banana
is so strong that it has become the common commercial name
of these molded rocking chairs. While a generic name is the
ultimate in descriptiveness under Section 2(e)(1) of the
Lanham Act, the Trademark Examining Attorney has not applied
the two-part test for genericness taken from H. Marvin Ginn
Corp. v. International Ass’n of Fire Chiefs, Inc., 782 F.2d
987, 228 USPQ 528 (Fed. Cir. 1986).
However, in support of the contention that “ … [t]he
evidence of record convincingly shows the wording ‘banana
chair’ …refer[s] to a common style of chair …,” the

2 In the initial Office Action the Trademark Examining Attorney
contended that the term Banana Chair described teak-framed, cabana
furniture woven with treated-banana fibers. However, with the
following Office Actions and in his brief, the Trademark
Examining Attorney did not pursue this argument, and therefore we
have given the foregoing argument no consideration.

Serial No. 78769110
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Trademark Examining Attorney has submitted for the record
evidence in which the term “banana chairs” is used for
furniture that seems to be similar to applicant’s product.3
The Futons and Beds ad and the AK Design article, noted
in footnote 3, appear to reflect the most significant
current commercial usages on the web. Interestingly, both
originate in Salt Lake City – in Mr. Rory Scott Dean’s home
state of Utah.
The Trademark Examining Attorney has also submitted
“hits” where the term is used in non-retail settings online,
such as chat rooms, on Craigslist or eBay, in forums and

3 SUS Furniture of Lewistown, MT, http://www.susfurniture.com/
• Gone Bananas website advertising “The Original Banana Chair
Video Rocker,” accessed by the Trademark Examining Attorney
on March 9, 2007, at www.gone-bananas.com. This same Gone
Bananas website was cited a second time by the Trademark
Examining Attorney as a sponsored link from a Google search.
The record does show that applicant sent this online
merchant a cease and desist letter on August 14, 2006.
• City Living Stores (Economy Hardware online)
http://www.citylivingstores.com/cgi-bin/category/377 Banana
Chair.
• Futons and Beds: Banana Chairs or Video Chairs, $ 59.99
http://www.futonsandbeds.com/bean_bags_banana_chairs.htm
The website indicates that this retail establishment is
located at 479 E 2100 S, Salt Lake City, UT 84115.
• HEADLINE: “Seating company is sitting pretty”
“ … Styling, innovation and affordability put AK[Design]’s
offerings snugly between low-tech “banana” chairs and
elaborate electronic chairs, decked out with speakers and
leather, that sell for up to $2,000. AK’s products were
attractive to mass retailers like Costco and Best Buy, among
others. Gamers looking for comfort and styling could find
what they needed with AK Rockers, which can cost as little
as $79.99…” Deseret News (Salt Lake City) May 9, 2005. By
Brice Wallace, Deseret Morning News.
Serial No. 78769110
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blogs, etc., where individual consumers use this term.4
This evidence is of little probative value. We have no way
of knowing whether some or even many of these excerpts may
be referencing applicant’s goods. In this respect, we note
that most of these items are connected to the Pacific Coast
and Intermountain West region of the United States – the
exact part of the country where most of applicant’s goods
have been marketed (viz., “furniture stores in Utah,
Montana, California, Wyoming, Idaho, Texas, Washington, and
Colorado”). Moreover, the fact that an individual posting a
comment on a blog or other online forum may use a term
without proper capitalization is not necessarily evidence
that he or she believes the term is a common commercial
name, nor is it evidence that readers of the posting regard
it as such.

4 http://local.yahoo.com/info-19830862; ebay listing for
“Gently used Video Rocker (a.k.a. Banana Chair)”; Sister Jane’s
blog http://www.sisterjane.blogspot.com/2006/11/here-at-
last.html; Salt Lake City craigslist > furniture
http://saltlakecity.craigslist.org/fur/444314193.html; Phoenix
craigslist > furniture
http://phoenix.craigslist.org/fur/452353036.html; Portland
craigslist > Multnomah Co. > furniture
http://portland.craigslist.org/ele/446597415.html; KSL NewsRadio
[Utah] Classifieds at http://www.ksl.com/;
http://forum.nuklearpower.com/;
HEADLINE: “Summer theater lineup opens with ‘Ragtime’”
“ … Chaise lounges, banana chairs, low chairs and pets are not
allowed … ” http://www.lvrj.com/living/7953397.html Las Vegas
Review-Journal, June 12, 2007.

Serial No. 78769110
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We cannot conclude from the evidence of record that the
Office has met its burden of showing that the term “banana
chair” is the common commercial name for a particular type
of chair. Given the ability of Internet search engines to
retrieve many uses of almost any term, we cannot find on the
basis of these isolated uses of “banana chair” as a common
commercial name by individuals on blogs or public access
sites such as Craig’s List that this term is clearly the
name of these types of chairs.
As to whether the mark is considered merely descriptive
because the term Banana Chair describes the shape of the
chair, namely that of a banana, again we find that it is
not. Although the chair has a curved shape that may suggest
the curve of a banana, the chair does not in fact look like
a banana,and the term Banana Chair does not immediately and
directly describe its shape.
Accordingly, we find that applicant’s mark is not
merely descriptive. As a result, we do not need to reach
the question of the sufficiency of applicant’s showing of
acquired distinctiveness.
We also point out that our decision is based solely on
the record before us. We make no comment on what the result
Serial No. 78769110
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might be on a different record, such as what might be
adduced in an inter partes proceeding.
Decision: We hereby reverse the refusal of the
Trademark Examining Attorney to register this mark under
Section 2(e)(1) of the Lanham Act.