Grapevine Intellectual Properties, LLC

Trademark Trial and Appeal Board

Dec 18, 2008

No. 77141442 (T.T.A.B. Dec. 18, 2008)

Mailed:
December 18, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Grapevine Intellectual Properties, LLC
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Serial No. 77141442
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Edmund J. Ferdinand, III and Jessica S. Rutherford of
Grimes & Battersby, LLP for Grapevine Intellectual
Properties, LLC.

Michele-Lynn Swain, Trademark Examining Attorney, Law
Office 116 (Michael Baird, Managing Attorney).
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Before Hairston, Zervas and Wellington, Administrative
Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
On March 27, 2007, Grapevine Intellectual Properties,
LLC filed an application to register on the Principal
Register the designation as a trademark
for the following goods: “clothing, namely, athletic
footwear, beachwear, blazers, blouses, boxer shorts,
briefs, coats, dresses, footwear, gloves, hosiery, jackets,
leather jackets, neckties, neckwear, pajamas, panties,
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 77141442
2
pants, pantsuits, rainwear, robes, scarves, shirts, shoes,
shorts, sleepwear, socks, sport coats, suits, swim wear, T-
shirts” in International Class 25.1 Applicant has
disclaimed the word GRUNGE.
The examining attorney has issued a final refusal of
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. §1052(e)(1), on the ground that, when used in
connection with applicant's goods, applicant's designation
would be merely descriptive of such goods.2
When the refusal was made final, applicant filed this
appeal. We affirm the refusal to register.
There is no dispute that the word GRUNGE is merely
descriptive of a feature of the goods, and the record
contains ample evidence that the term is merely descriptive
of a feature of applicant's goods, namely that the goods
comprise “grunge” clothing. Applicant, by entering a
disclaimer of the term GRUNGE, has acknowledged the
descriptive nature of this term as applied to its goods.
The examining attorney and applicant dispute, however,

1 Application Serial No. 77141442, based on applicant's assertion
of its bona fide intention to use the mark in commerce under
Trademark Act § 1(b), 15 U.S.C. § 1051(b).
2 In her brief, the examining attorney withdrew a second basis
for refusal of registration set forth in her final Office action,
namely, that applicant had not complied with her requirement for
additional information such as samples of advertisements or
promotional materials, etc., and for a description of the nature,
Serial No. 77141442
3
whether the mark is barred from registration on the
Principal Register under Section 2(e)(1) despite the
lettering style of the designation. Applicant maintains
that “[e]ach letter in the word ‘grunge’ is displayed in
its own highly stylized typeface, characterized by erratic
edges and inconsistent sizes and thicknesses, creating a
striking commercial impression separate and apart from the
word portion of the mark.” Brief at p. 7. The examining
attorney responds that “the presentation of the applicant's
mark in curved jagged edges is not sufficiently substantial
or distinctive as to create a separate commercial
impression apart from the disclaimed portion of the mark to
render the mark registrable on the Principal Register.”
Brief at unnumbered p. 5.
In order for a term otherwise unregistrable to be
capable of distinguishing an applicant's goods, the
presentation of the term must be sufficiently distinctive
so as to create a commercial impression separate and apart
from the unregistrable components whereby it is possible to
disclaim those unregistrable components and still have a
mark which is registrable as a whole. See In re Carolyn's
Candies, Inc., 206 USPQ 356 (TTAB 1980).

purpose and channels of trade of the goods. Accordingly, we need
not consider her second basis for refusal.
Serial No. 77141442
4
The determination of whether the stylization of an
otherwise unregistrable designation is sufficiently
distinctive in character to “rescue” the designation as a
whole is a subjective one. In re Bonni Keller Collections
Ltd., 8 USPQ2d 1224 (TTAB 1987). It is our view that the
presentation of applicant's mark simply does not possess
the degree of stylization necessary to warrant allowance on
the Principal Register without a claim of distinctiveness.
Applicant's stylization is nowhere near the stylization of
the CONSTRUCT-A-CLOSET mark discussed in In re Clutter
Control Inc., 231 USPQ 588 (TTAB 1986), with its “tube-like
rendition of the letter ‘C’ in the words ‘construct’ and
‘closet.’” Further, the stylizations of the marks in other
cases which applicant's relies on in its brief are all more
fanciful, eye catching and imaginative than the stylization
of applicant's GRUNGE mark.3 Moreover, many of those marks
involved applications for registration on the Supplemental
Register, not the Principal Register, as is the case with
applicant's designation. In re Miller Brewing Co., 226

3 See, for example, In re The Wella Corp., 196 USPQ 7 (CCPA 1977)
regarding the mark , In re School Book Fairs, Inc. 229
USPQ 556 (TTAB 1986) regarding the mark ,
and In re Carolyn’s Candies, supra, regarding the mark
.
Serial No. 77141442
5
USPQ 666 (TTAB 1985), regarding the mark , involved a
showing of acquired distinctiveness. As for In re Grand
Metropolitan Foodservice Inc., 30 USPQ2d 1974 (TTAB 1994),
mentioned at p. 6 of applicant's brief, the Board did not
find that the stylization of the mark was sufficiently
distinctive; the Board found that the mark MUFFUNS was not
merely descriptive of baked mini-muffins and reversed the
Section 2(e)(1) refusal of registration. Thus, the cases
relied on by applicant in support of registration are not
persuasive.
In sum, we find the presentation of applicant's
stylized GRUNGE designation to be not sufficiently
distinctive to permit registration on the Principal
Register. Registration is accordingly barred under
Trademark Act § 2(e)(1).
Decision: The refusal to register is affirmed.