High-Heeled Creations, LLC

Trademark Trial and Appeal Board

Mar 31, 2005

No. 76306141 (T.T.A.B. Mar. 31, 2005)

Mailed: March 31, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re High-Heeled Creations, LLC
________

Serial No. 76306141
_______

Robert Thornton Smith of Linklaters for High-Heeled Creations,
LLC.

Andrea D. Saunders, Trademark Examining Attorney, Law Office 108
(David Shallant, Managing Attorney).
_______

Before Bucher, Holtzman and Drost, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by High-Heeled Creations, LLC
to register the mark HIGH-HEELED HANDBAGS ("HANDBAGS" disclaimed)
for "goods manufactured of leather and imitations of leather,
namely, purses, change purses, handbags, wallets, and
pocketbooks" in International Class 18.
The application was filed on August 28, 2001 based on
applicant's assertion of a bona fide intention to use the mark in
commerce. Following publication of the mark for opposition on
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 76306141
2
April 2, 2002, applicant filed a statement of use, together with
the required specimen, alleging dates of first use of the mark
on August 20, 2002. The examining attorney then refused
registration of the mark on the ground that the mark is merely
descriptive of the goods under Section 2(e)(1) of the Trademark
Act.
When the refusal was made final, applicant appealed. Briefs
have been filed. An oral hearing was not requested.
The examining attorney argues that the mark HIGH-HEELED
HANDBAGS is descriptive of a characteristic and feature of
applicant's goods, namely a handbag in the shape and form of a
high-heeled shoe or boot. In support of her position, the
examining attorney relies on a dictionary definition of "high" as
"[h]aving a relatively great elevation; extending far upward: a
high mountain; a high tower"; a definition of "heel" as "the
built-up portion of a shoe or boot, supporting the heel"; and a
definition of "handbag" as "[a] woman's purse" and "[a] piece of
small hand luggage."1 The examining attorney also made of record
excerpts of articles from the Nexis database containing
references to high heeled shoes, and describing the designs of

1 All from The American Heritage Dictionary of the English Language,
Third Edition (1992).

Serial No. 76306141
3
applicant's handbags as real shoes made into purses. Examples of
these references are set forth below (emphasis added):2
...Shoshanna Smith to give up her beloved high heels, the
Manhattan artist found an unlikely outlet for her fetish:
She converted stilettos into purses. Ten months later, Ms.
Smith's new company, High-Heeled Handbags, is digging into
new markets and expanding its line. Stilettos are merely
the starting point for Ms. Smith's pocketbook design. She
studs, chains, skins, straps, clasps, zippers and furs them.
... Crain's New York Business (March 11, 2002).

Enter New York painter Shoshanna Smith, who has parlayed a
passion for stiletto-heeled shoes and boots into a popular
handbag collection. She's gaining a cult following by
turning new pairs of stilettos into zip-closure shoulder
bags and backpacks. The line, High-Heeled Handbags, was
brought to Pittsburgh this month by The Chatterbox in
Sewickley and Roberta Weissberg Leathers in Shadyside. ...
"They're real shoes, never worn," said Gallagher. ..." She
beamed, holding up a bright red one with a 6-inch heel ....
. Pittsburgh Post-Gazette (Pennsylvania) (January 27,
2002).

WELL-HEELED BAG: Artist and designer Shoshanna Smith
recently turned her passion for high heeled shoes into a new
concept: High-Heeled Handbags. The result is a collection
that ranges from a sexy, wet-looking red leather shoe
adorned with Swarovski crystals to a limited-edition
corseted ankle boot imported from Amsterdam, to the simple
traditional black pump or the Bally-esque brown driving
loafer for the conservative shoe lover. The Post and
Courier (Charleston, SC) (November 30, 2001).

In addition, the examining attorney refers to an article
obtained by applicant from The Atlanta-Journal Constitution that
describes applicant's goods as follows:
High-Heeled Handbags turns actual pumps and loafers into
sophisticated handbags.

2 References to Shoshanna Smith in these articles are to applicant's
president, Susan Jane Smith aka Shoshanna Smith.
Serial No. 76306141
4
As further evidence of descriptiveness, the examining
attorney points to applicant's specimen of use displaying
handbags in the shape of various high-heeled shoes and to
printouts from applicant's website containing descriptions and
photographs of available handbags, such as the following
(emphasis added):

"High-heeled cowboy boot with silver studded star"

"French high-heeled sneaker with leather lid & magnetic
clasp on braided strap" [shown below]

"Black patent ankle boot with silver shoulderchain" [shown
below]

Serial No. 76306141
5
We also note an article made of record by applicant (from an
unidentified source) referring to applicant's handbags as follows
(emphasis added):
New York, NY – Artist and designer Shoshanna Smith is a
woman in love – with shoes. High-heeled shoes to be exact.
Whether it's a perilously high platform, a slick, dangerous-
looking patent leather stiletto, or an ankle-hugging,
corseted boot, Shoshanna simply can't resist. So, just
recently, she did what comes naturally to her – she turned
her passion into a new concept, and High-Heeled Handbags was
born.

The examining attorney argues that although the mark may not
describe every handbag in applicant's line of goods, "[i]t is
sufficient that the mark describes one attribute of the goods."
(Brief, unnumbered p. 1).
Applicant argues that its mark is not descriptive, but
instead is an "evocative mark, calling to mind a sexy image."
Brief, p. 3. Applicant contends that "the idea of this product
is so unique that people generally cannot picture the handbags
even after the concept of shoes as handbags is orally described,"
and concludes that "the mark would be a poor description even if
that were its function." Brief, p. 3. Applicant notes that the
concept of making shoes into handbags "has been described in the
industry as award winning and utterly original and part of
fashion history." Id.
While admitting that some of the handbags "in the line" have
high heels, applicant, nevertheless, argues that the mark is not
Serial No. 76306141
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descriptive because not all of the handbags have high heels.
Applicant states that its line of handbags includes a number of
styles without high heels pointing out that, as shown by the
evidence, the collection also includes traditional black pumps,
sneakers, cowboy boots, biker boots, and loafers, none of which
styles feature high heels. It is applicant's contention that the
examining attorney has confused what applicant characterizes as a
distinction between a term that describes only one of several
attributes common to all of the goods, and a term that is not a
feature common to the line of goods.
A term is merely descriptive within the meaning of
Section 2(e)(1) if it immediately conveys knowledge of a
quality, feature, function or characteristic purpose or use of
the goods with which it is used. In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987). A mark does not have to describe
every such attribute of the goods in order to be found merely
descriptive; it is sufficient for the purpose if the mark
describes a single significant attribute. See In re Patent &
Trademark Services Inc., 49 USPQ2d 1537 (TTAB 1998); and In re
Venture Lending Associates, 226 USPQ 285 (TTAB 1985). Moreover,
the question of whether a particular term is merely descriptive
must be determined not in the abstract or on the basis of
guesswork, but in relation to the goods for which registration is
Serial No. 76306141
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sought. See In re Remacle, 66 USPQ2d 1222 (TTAB 2002); and In re
Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986).
Applicant's goods are handbags and similar items. We find
that HIGH-HEELED HANDBAGS describes a key feature or
characteristic of those handbags. The term immediately, and
without conjecture, informs customers that applicant's handbags
have "high heels" or are "high-heeled." In fact, pictures of
applicant's goods show that a typical handbag of applicant's is
made from a shoe or a boot, often with a high heel, that has been
modified to serve as a handbag.
The meaning of "high-heeled" is well understood in relation
to footwear. Applicant's website materials as well as the
dictionary evidence and media references submitted by applicant
and the examining attorney show that the term "high-heeled"
refers either to a feature of a shoe or to any type of shoe
having a high heel, such as the "high-healed sneakers" and "high-
heeled boots" mentioned on applicant's website. We also take
judicial notice of a definition of "high heels" as "women's shoes
with tall, often slender heels that raise the back of the foot
off the ground";3 a definition of "high heeled" as "[h]aving high

3 Microsoft Encarta College Dictionary (2001).
Serial No. 76306141
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heels";4 and a definition of "high heels" as "shoes with high
heels."5
It is clear from the evidence of record that purchasers,
upon seeing the term HIGH-HEELED HANDBAGS, not in a vacuum, but
in relation to the goods will, without any guesswork or the
exercise of any imagination, immediately understand that
applicant's handbags have high-heels or are "high-heeled" and
that in fact they consist of high-heeled shoes that have been
converted into handbags. It is well settled that a term which
merely describes the form or shape of a product, or the form or
shape of a significant feature of the product, is merely
descriptive of the product. See, e.g., Scanwell Laboratories,
Inc. v. Department of Transportation, Federal Aviation
Administration, 181 F.2d 1385, 179 USPQ 238 (CCPA 1973) (V-RING
merely descriptive of directional antennas, the primary
components of which were shaped in the form of a "v" and a
"ring"); J. Kohnstam, Ltd. v. Louis Marx & Co., 280 F.2d 437, 126
USPQ 362 (CCPA 1960) (MATCHBOX SERIES merely descriptive of toys
sold in boxes having the size and appearance of matchboxes); and
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982) (TOOBS, the phonetic

4 Webster's 1828 Dictionary (from www.onelook.com).
5 Merriam-Webster's Online Dictionary, 10th Edition (from www.m-w.com).
Serial No. 76306141
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equivalent of "tubes," merely descriptive of bathroom and kitchen
fixtures in the shape of tubes which serve as holders and racks).
We do not take issue with the contention that the shape of
applicant's handbags is unusual and that the concept of a shoe
functioning as a handbag is innovative and unique. The fact
remains, however, that purchasers of this new style of handbags
would clearly understand the descriptive meaning of HIGH-HEELED
HANDBAGS in relation to those goods. Anyone who produces
handbags with the high heel of a shoe on it, as unusual as that
may be, should be entitled to describe its handbags as having
high heels or as "high-heeled."
Moreover, the fact that all of the handbags in the line do
not have high heels is irrelevant. The relevant point is that
HIGH-HEELED HANDBAGS is descriptive of those of applicant's
handbags that do have high heels or are "high-heeled." See,
e.g., Roselux Chemical Co., Inc. v. Parsons Ammonia Company,
Inc., 299 F.2d 855, 132 USPQ 627, 634 (CCPA 1962) (immaterial
that "some of the so-called 'sudsy' [ammonia] products marketed
by opposers were not in fact sudsy because they contained no
detergent"). Absent any restriction in applicant's
identification of goods, it be presumed that such goods encompass
all styles of handbags, including applicant's "high-heeled"
styles.
Serial No. 76306141
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In view of the foregoing, we are convinced that applicant's
mark is merely descriptive of its goods.
Decision: The refusal to register under Section 2(e)(1) of
the Trademark Act is affirmed.