Health Facts, Inc.

Trademark Trial and Appeal Board

Jan 5, 2001

No. 75439392 (T.T.A.B. Jan. 5, 2001)

1/5/01
Paper No. 9
GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Health Facts, Inc.
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Serial No. 75/439,392
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Kenneth E. Kuffner of Kuffner & Associates for Health Facts, Inc.
Sophia S. Kim, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
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Before Quinn, Hohein and Holtzman, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Health Facts, Inc. has filed an application to register
the mark "A MAN'S FACE" for "non-medicated skin care products,
namely, lotions, astringents, balms, creams, cleansers and
powders."1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis
that, when used in connection with applicant's goods, the mark "A
MAN'S FACE" is merely descriptive of them.
1 Ser. No. 75/439,392, filed on February 24, 1998, which alleges a bona
fide intention to use such mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/439,392
2
Applicant has appealed. Briefs have been filed, but an
oral hearing was not held. We reverse the refusal to register.
It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning of
Section 2(e)(1) of the Trademark Act, if it forthwith conveys
information concerning any significant ingredient, quality,
characteristic, feature, function, purpose or use of the goods or
services. See, e.g., In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009
(Fed. Cir. 1987) and In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215, 217-18 (CCPA 1978). It is not necessary that a
term describe all of the properties or functions of the goods or
services in order for it to be considered to be merely
descriptive thereof; rather, it is sufficient if the term
describes a significant attribute or idea about them. Moreover,
whether a term 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 with those goods or services and the possible
significance that the term 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, a mark is suggestive if, when the goods or
services are encountered under the mark, a multi-stage reasoning
process, or the utilization of imagination, thought or
Ser. No. 75/439,392
3
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, and In re Mayer-Beaton Corp.,
223 USPQ 1347, 1349 (TTAB 1984). 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 analysis susceptible of articulation. See In re George
Weston Ltd., 228 USPQ 57, 58 (TTAB 1985).
According to the Examining Attorney, "[t]he proposed
mark 'A MAN'S FACE' is merely descriptive of the intended area of
use of the identified goods." In particular, the Examining
Attorney contends that "[t]he proposed mark, in relation to the
identified goods, clearly and immediately tells prospective
consumers that the applicant's skin care goods are to be used on
a man's face." Relying upon the common or ordinary significance
of the words "man" and "face," definitions of which were made of
record with the final refusal,2 the Examining Attorney asserts
that "[t]he dictionary meanings of the terms are clearly
2 Specifically, The American Heritage Dictionary of the English
Language (3rd ed. 1992) defines "man" as "[a]n adult male human being"
and lists "face" as meaning "1. a. The surface of the front of the
head from the top of the forehead to the base of the chin and from ear
to ear. b. A person: We saw many new faces on the first day of
classes. 2. A person's countenance."
Ser. No. 75/439,392
4
understandable to the average consumer and there is no ambiguity
or double entendre, i.e. double meaning, in the terms in relation
to the identified goods." Relying also upon excerpts from
various periodicals, copies of which were obtained from her
searches of the "NEXIS" database,3 the Examining Attorney argues
in conclusion that:
As the articles demonstrate, skin care
and cosmetic products are no longer just used
by women but are being used by men. It
appears that more and more skin care and
cosmetics companies are creating specific
lines of products just for men. ....
Therefore, in light of this trend in the skin
care and cosmetics industry, it is likely
that the consumers will perceive the proposed
mark as merely describing the intended area
of use of the identified goods ....
3 The following examples are representative (emphasis added):
"Even men's cosmetics are not immune from the macho-
man motif. Consider the 'multifunctional system for a
man's face' by Ralph Lauren, a.k.a., soap, shaving cream
and moisturizer." -- Denver Post, June 13, 1997;
"SHE: I can't tell you how many times I've looked at
a prominent blemish on a man's face and ached for it to be
camouflaged with a smidge of flesh-toned cream." -- L.A.
Times, January 15, 1993;
"Most men ... use shaving creams. But partly because
of advertising and partly because the skin on a man's face
is so sensitive, there was a strong tendency for men to be
brand loyal." -- Drug Store News, December 10, 1990;
"Bronzers, creams that give a tanned look to a man's
face, have been around for 10 or 15 years ...." -- St.
Louis Post-Dispatch (article headlined: "MEN: FLOCKING TO
COSMETICS COUNTERS"); and
"AVON RECENTLY introduced the Active Fitness System
for Men, a complete grooming line to promote long-term skin
fitness for a man's face and body. The system, fine-tuned
to a man's skin chemistry, includes a body cleanser gel,
skin lotion, conditioning shampoo, anti-perspirant and
deodorant talcum. The line will be extended in 1986 to
include facial skin care products." -- Arkansas Democrat-
Gazette, November 14, 1985.
Ser. No. 75/439,392
5
Applicant, on the other hand, maintains that "the mark
in question is, at best, 'suggestive' of the goods recited"
inasmuch as it requires imagination, thought or perception in
order for consumers to reach a conclusion as to the nature of
applicant's goods. In this regard, applicant insists that
(emphasis in original):
The mark under consideration here
operates, at best, to draw attention to the
fact that the goods in question are to be
used in some manner on a particular area of
the body. However, it does not make a mark
merely descriptive and, therefore,
unregistrable, merely because it has the
capacity to draw attention to what the
product ... is or what its characteristics
are. ....
Applicant consequently argues that the fact that "the term sought
to be registered may be used to describe how a product might be
used does not, by itself, make the mark descriptive of the goods"
(emphasis in original). According to applicant, "[a]n analogy
[to the Examining Attorney's position] would be the use of the
term 'a man's foot' to be descriptive of shoes, rather than where
a shoe might be used," but such a "thought requires too much
'stretch' to be reasonable."
While a closer or more apt analogy might be the use of
the designation "a man's foot" in connection with a foot balm,
cream or powder, we nevertheless are constrained to agree with
applicant that, when considered in its entirety, the phrase "A
MAN'S FACE" is suggestive rather than merely descriptive of
applicant's "non-medicated skin care products, namely, lotions,
astringents, balms, creams, cleansers and powders." Literally,
Ser. No. 75/439,392
6
there is no characteristic, feature, purpose or use of any of
applicant's goods which constitutes a man's face; instead, the
phrase is at best highly suggestive of the area of the body where
applicant's goods would be used or applied rather than any aspect
of the products themselves.
Moreover, while admittedly a fine line, the phrase "A
MAN'S FACE" nevertheless has a suggestive overtone or inference
of masculinity, particularly when utilized in connection with
non-medicated skin care products for men, given the fact (as
reflected in some of the "NEXIS" excerpts) that, until very
recently, men customarily did not use such goods or, at least,
did not publicly acknowledge use of skin care products. Stated
otherwise, applicant's goods are not just for use on a face but
are principally intended for application to a man's face. The
rugged, manly appeal suggested by this double entendre is itself
sufficient to preclude applicant's mark from being considered as
merely descriptive of its goods inasmuch as it imparts a degree
of imagination, thought or perception to the mark.
Finally, and in light of the above, at a minimum we
have doubt that applicant's mark immediately conveys only that
its goods are to be used on a man's face, as contended by the
Examining Attorney, and thus has no other significant and
discernible meaning or suggestion in relation to applicant's
goods. In view thereof, we resolve such doubt, in accordance
with the Board's practice, in favor of 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.,
Ser. No. 75/439,392
7
209 USPQ 791 (TTAB 1981); and In re Gourmet Bakers, Inc., 173
USPQ 565 (TTAB 1972).
Decision: The refusal under Section 2(e)(1) is
reversed.