Hill Country Class 3, LLC

Trademark Trial and Appeal Board

Sep 23, 2016

No. 86268898 (T.T.A.B. Sep. 23, 2016)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
September 23, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Hill Country Class 3, LLC
_____

Serial No. 86268898
_____

Paul D. Lein of Locke Lord LLP
for Hill Country Class 3, LLC.

Sui Q. Duong, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____

Before Lykos, Masiello and Pologeorgis, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
Hill Country Class 3, LLC (“Applicant”), dba Silencer Shop, filed an application to
register on the Principal Register SILENCER SHOP in standard characters as a
mark for “Retail sporting goods store,” in International Class 35.1
The Examining Attorney refused registration under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that Applicant’s mark was

1 Application Serial No. 86268898 was filed on May 1, 2014 under Trademark Act
Section 1(a), 15 U.S.C. § 1051(a), based on Applicant’s asserted use of the mark in
commerce, stating July 6, 2011 as the date of first use and first use in commerce.
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merely descriptive of the identified services. Thereafter, Applicant requested
registration under Section 2(f), 15 U.S.C. § 1052(f), on the ground that the mark had
acquired distinctiveness; Applicant also sought to amend its identification of
services. The Examining Attorney then refused registration on the ground that the
proposed mark is generic and therefore incapable of distinguishing the identified
services, or, alternatively, that the mark is merely descriptive and that Applicant
had failed to show acquired distinctiveness under Section 2(f). The Examining
Attorney also rejected the amendment to the identification of services on the ground
that it was “too broad and could include services classified in other international
classes,” required that the identification be amended, and stated that an
amendment to the identification must not “add to or broaden the scope of the
services,”2 citing Trademark Rule 2.71(a), 37 C.F.R. § 2.71(a). Applicant responded
with further arguments and evidence and a further amendment to the identification
of services. Applicant also requested “registration to the Supplemental Register in
the event the Examining Attorney withdraws the pending genericness refusal but
maintains the descriptiveness refusal.”3 The Examining Attorney made final the
refusals on the ground of genericness and on the ground that the mark is merely
descriptive and that acquired distinctiveness had not been demonstrated; and made
final the requirement that Applicant submit a more definite identification of
services. Applicant has appealed to this Board. Applicant and the Examining
Attorney have filed their briefs.

2 Office Action of March 22, 2015 at 3.
3 Applicant’s response of September 22, 2015 at 14.
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For the reasons stated below, we REVERSE the refusal on the ground of
genericness, AFFIRM the refusal on the ground of mere descriptiveness and lack of
acquired distinctiveness under Section 2(f), and ALLOW registration of Applicant’s
mark on the Supplemental Register.
1. Requirement of a more definite identification of services.
We first address the Examining Attorney’s final requirement of a more definite
identification of services. For the reasons stated below, we affirm the Examining
Attorney’s refusal to accept Applicant’s proposed amendments to the identification
of services.
In the application as originally filed, Applicant identified its services as “Retail
sporting goods store.” The Examining Attorney expressly stated that this was an
acceptably definite identification.4 Applicant twice amended its identification of
services and the Examining Attorney, on both occasions, rejected the amended
identifications as indefinite and “too broad.” We agree that Applicant’s second
amended identification5 was unacceptable because it sought to expand the scope of
services beyond those set forth in the original identification. Such an amendment is
not permissible under Trademark Rule 2.71(a), 37 C.F.R. § 2.71(a), which provides
that an application may be amended “to clarify or limit, but not to broaden, the
identification of goods and/or services…” (emphasis added). The second amended
identification was as follows:

4 Office Action of March 22, 2015 at 3.
5 Applicant’s first proposed amendment to the identification of services is not before us, as
Applicant has deleted and replaced it. In any event, the Examining Attorney’s objections to
it were similar to those he raised with respect to the second amendment.
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Retail sporting goods store, namely, providing retail store
services for the sale of firearms, suppressors and
suppressor parts, and firearm accessories namely, firearm
adapters, barrel spacers, flash hiders, muzzle brakes,
pistons, mounts, and firearm upper components, and
transfer of firearms, suppressors, and suppressor parts
under the National Firearms Act, in International Class
35.6
The Examining Attorney objected to the addition of the “transfer” services set forth
above in italics. The record shows that the “transfer” services at issue consist of
preparing, filing, and prosecuting an application to the appropriate Federal agency
in order to obtain the necessary permission for possession of a suppressor.7
Applicant has admitted in its brief, with respect to such transfer services, that
“many of the transfer services relate to suppressors sold to the consumer by other
retailers.”8 This type of administrative advocacy, especially as provided to persons
who are not store customers, is not within the scope of “retail sporting goods store”
services. Accordingly, we affirm the Examining Attorney’s refusal to accept
Applicant’s second amended identification of services.
We note that Applicant, in its brief, requested that its identification of services be
amended so as to place the “transfer” services in Class 45, apart from the retail
services in Class 35.9 Applicant’s brief is not the proper avenue for such a request,
and Applicant’s request was not noted by the Board until the case had been fully

6 Applicant’s response of February 17, 2015 at 3 (emphasis added).
7 See, e.g., Declaration of David Matheny ¶¶ 13-14, Applicant’s response of February 17,
2015 at 23.
8 Applicant’s brief at 6, 4 TTABVUE 11 (emphasis in original).
9 Id. at 19, 4 TTABVUE 25.
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briefed and was ready for final decision. At this juncture, we will not treat the
request as a request for remand; in any event, a request for remand would have
required a showing of good cause, and there is no such showing. See TBMP §
1205.01 (2016); In re Thomas White International Ltd., 106 USPQ2d 1158, 1160 n.2
(TTAB 2013). Moreover, in view of our determination that the inclusion of the
“transfer” services in the identification would violate Trademark Rule 2.71(a), a
remand would have been futile. Accordingly, we give no consideration to Applicant’s
third proposed amendment to the identification of services.
Because we affirm the Examining Attorney’s rejection of the proposed amendment
to the identification of services, the original identification of services, which was
acceptably definite, remains the operative identification of services. See TMEP §
1402.07(d); see also In re Fiat Grp. Mktg. & Corporate Commc’ns S.p.A., 109
USPQ2d 1593 (TTAB 2014). As the operative identification of services is acceptably
definite, lack of compliance with the Examining Attorney’s outstanding requirement
of a more definite identification of services is not a ground for refusing registration.
Cf. In re Faucher Industries Inc., 107 USPQ2d 1355 (TTAB 2013). For purposes of
this application, the operative identification of services is “retail sporting goods
store.”
2. Refusal on grounds of genericness.
We turn next to the Examining Attorney’s refusal to register the mark on the
ground that it is generic as applied to the identified services. A mark is generic if it
refers to the class or category of goods or services on or in connection with which it
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is used. In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807
(Fed. Cir. 2001) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782
F.2d 987, 228 USPQ 528 (Fed. Cir. 1986) (“Marvin Ginn”)). The test for determining
whether a mark is generic is its primary significance to the relevant public. In re
American Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999); Magic
Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991); and Marvin
Ginn, supra. Making this determination “involves a two-step inquiry: First, what is
the genus of goods or services at issue? Second, is the term sought to be registered
… understood by the relevant public primarily to refer to that genus of goods or
services?” Marvin Ginn, 228 USPQ at 530. The Examining Attorney has the burden
of establishing by clear evidence that a mark is generic. In re Merrill Lynch, Pierce,
Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987); In re
American Fertility Soc’y, supra; and Magic Wand Inc., supra. “Doubt on the issue of
genericness is resolved in favor of the applicant.” In re DNI Holdings Ltd., 77
USPQ2d 1435, 1437 (TTAB 2005).
(a) The genus of Applicant’s services.
Because the identification of goods or services in an application defines the scope
of rights that will be accorded the owner of any resulting registration under Section
7(b) of the Trademark Act, generally “a proper genericness inquiry focuses on the
description of services set forth in the [application or] certificate of registration.”
Magic Wand, 19 USPQ2d at 1552 (citing Octocom Sys., Inc. v. Houston Computer
Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)). In this case, the
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identification of services, “retail sporting goods store,” is clear in meaning and is an
appropriate expression of the genus of services at issue.
The Examining Attorney argues that the appropriate genus is “retail store
services featuring firearms, firearm suppressor [sic], and their parts.”10 Applicant,
for its part, has treated the genus as “retail sale services related to firearms and
firearm accessories,” including “transfer-related services for firearms and
suppressors under the National Firearms Act…”11 As our primary reviewing court
stated in In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1638 (Fed. Cir.
2016), both of these approaches to defining the genus “miss[ ] the point.” In Cordua,
the identified services were restaurant services, and the applicant complained that
the Board had given consideration to applicant’s specific services, which were
Brazilian-style steak restaurants. The Court explained:
We agree with Cordua that “a proper genericness inquiry
focuses on the description of services set forth in the
certificate of registration.” Magic Wand, Inc. v. RDB, Inc.,
940 F.2d 638, 640 [19 USPQ2d 1551] (Fed. Cir. 1991).
“The authority is legion that the question of registrability
of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which sales
of the goods are directed.” Octocom Sys., Inc. v. Hous.
Comput. Servs., Inc., 918 F.2d 937, 942 [16 USPQ2d 1783]
(Fed. Cir. 1990) (citing cases); see also In re
1800Mattress.com IP, LLC, 586 F.3d 1359, 1361, 1363 [92
USPQ2d 1682] (Fed. Cir. 2009) (defining the genus of
goods or services at issue as the genus of goods or services
for which the applicant sought protection, as set forth in

10 Examining Attorney’s brief, 6 TTABVUE 5, n1.
11 Applicant’s brief at 5-6, 4 TTABVUE 11-12.
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its trademark application); Can. Imperial Bank of
Commerce v. Wells Fargo Bank, Nat’l Ass’n, 811 F.2d
1490, 1492-93 [1 USPQ2d 1813] (Fed. Cir. 1987).
Thus, the correct question is not whether “churrascos” is
generic as applied to Cordua’s own restaurants but rather
whether the term is understood by the restaurant-going
public to refer to the wider genus of restaurant services.
See Ginn, 782 F.2d at 990; see also Princeton Vanguard,
786 F.3d at 966; Reed Elsevier, 482 F.3d at 1379. The
Board’s suggestion that “churrascos” is generic as applied
to Cordua's own restaurant services misses the point. 4
Cordua, 2014 WL 1390504, at *6.
In re Cordua, 118 USPQ2d at 1636. In a footnote, the Court added, “We do not
suggest that Cordua’s own advertising could never be pertinent to the public’s
understanding of the term ‘churrascos’ but rather that the focus must be on the
public’s understanding with respect to the overall genus of restaurant services, not
limited to the term’s connection with Cordua’s own restaurants.” Id. at n.4.
Accordingly, we must proceed to consider whether the term SILENCER SHOP is
understood by the relevant public primarily to refer to the overall genus of retail
sporting goods stores.
(b) Public understanding of the term SILENCER SHOP.

In our consideration of whether SILENCER SHOP would be understood by the
relevant public primarily to refer to retail sporting goods stores, we will treat the
relevant public as customers interested in purchasing sporting goods of the types
that are available in sporting goods stores.12

12 Applicant argues that the relevant public consists of “consumers seeking to purchase
suppressors and other firearms products.” Applicant’s brief at 11, 4 TTABVUE 17. The
Examining Attorney states that “the relevant public is the consuming public for the
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The Examining Attorney has made of record the following relevant dictionary
definitions:
silencer: 1. a person or thing that silences

2. (US) a device attached to the muzzle of a firearm to muffle
the report13

shop: a. a place where certain goods or services are offered for sale;
esp. a small store
b. a specialized department in a large store → the gourmet
shop14

The Examining Attorney has also submitted the Wikipedia entry for “Suppressor,”15
which explains that “A suppressor, sound suppressor, or silencer is a device
attached to or part of the barrel of a firearm or air gun which reduces the amount of
noise and visible muzzle flash generated by firing.”
Finally, the Examining Attorney has submitted excerpts from internet websites of
Applicant and two gun businesses;16 and of businesses named The Body Shop,
Topshop, See’s Candies, Jomashop, and The Tile Shop.17 From these we glean
examples of usage of the expressions “gun shop,” “candy shop,” and “tile shop.”
Relying upon In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110 (Fed. Cir.
1987), the Examining Attorney argues:

identified services,” 6 TTABVUE 6, and argues as though the public consists of firearms
purchasers. Neither approach is apt, considering the operative identification of services.
13 , Office Action of August 14, 2014 at 7.
14 , id. at 4.
15 Office Action of March 22, 2015 at 5-12.
16 Id. at 13-17.
17 Office Action of October 14, 2015 at 6-19.
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the assessment of genericness for a compound term may
utilize only evidence of record for each constituent word
when each word is itself generic and the total combination
leads to no additional meaning when combined. … The
individual words within Applicant’s two word standard
character mark retain their original meaning and no
additional meaning is created by their combination. As a
result, the relevant public would perceive the mark as a
whole to be generic when applied to the services at
issue.18
The guidance set forth in In re Gould has often been misunderstood, and the
Federal Circuit has several times given clarifying guidance regarding the proper
analysis of so-called “compound terms.” See In re American Fertility Soc’y, 51
USPQ2d at 1835-6; and Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786
F.3d 960, 114 USPQ2d 1827, 1831-3 (Fed. Cir. 2015). The Court has always
emphasized that the standard of analysis set forth in Marvin Ginn has never
altered; and that those who would view Gould as justifying a “short-cut around the
test articulated in Marvin Ginn” are in error. Princeton-Vanguard, 114 USPQ2d at
1833 (inner quotation marks omitted); see also Am. Fertility, 51 USPQ2d at 1836.
The Court further explained:
[E]ven in circumstances where the Board finds it useful to
consider the public’s understanding of the individual
words in a compound term as a first step in its analysis,
the Board must then consider available record evidence of
the public’s understanding of whether joining those
individual words into one lends additional meaning to the
mark as a whole.
114 USPQ2d 1832-33. The above guidance, read in the context of the Court’s full
discussion, indicates that a demonstration of genericness of a compound term will

18 Examining Attorney’s brief, 6 TTABVUE 7.
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require, in virtually every case, not only evidence of the dictionary definitions of the
component words, but also evidence showing the public’s understanding of the entire
mark.
In this case, the Examining Attorney bears the burden of proving by clear
evidence that the relevant public would understand SILENCER SHOP primarily to
refer to retail sporting goods stores. In re Merrill Lynch, 4 USPQ2d at 1143. He has
not carried this burden, primarily for two reasons. First, while he maintains that
SILENCER is the generic name of goods that Applicant would sell through its
stores, the record lacks any evidence to relate such goods to sporting goods stores.
One could reasonably doubt that firearm suppressors or “silencers” are ordinarily
offered at sporting goods stores;19 and that doubt is not dispelled by any evidence of
record. If suppressors are not, in fact, available in sporting goods stores, members of
the relevant public would not perceive SILENCER as the name of a product that
would be available there and the designation SILENCER SHOP could be perceived
as an incongruous mark for such a store.
Second, there is no evidence to show the public’s understanding of the entire
expression SILENCER SHOP. It is true that the Federal Circuit has recognized
that dictionary definitions may constitute evidence of the public’s understanding of

19 We note that Applicant, in its efforts to amend the identification of services, has taken
the position that its store is a “sporting goods store” that sells suppressors. The fact that
the Examining Attorney did not challenge this characterization of the scope of goods that a
“sporting goods store” might carry (or at least did not do so clearly), does not dispose of the
question as to whether members of the relevant public would expect to be able to purchase
a firearms suppressor at a sporting goods store and would therefore perceive SILENCER as
the name of a product that could be purchased in a sporting goods store. We express no
opinion as to whether “retail sporting goods store” accurately identifies the services that
Applicant actually provides.
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a term. Princeton Vanguard, 114 USPQ2d at 1830 (“Evidence of the public’s
understanding of the mark may be obtained from ‘any competent source, such as
consumer surveys, dictionaries, newspapers and other publications.’” (emphasis
added)). However, in the case of a mark consisting of several words, dictionary
definitions of the component words are, alone, very indirect evidence of public
perception of the entire mark. In Gould, the Court was not satisfied with dictionary
definitions of the component words; rather it relied upon an actual admission of the
applicant, included in the applicant’s own marketing materials, as to the meaning
of the proposed mark. See discussion in Princeton Vanguard, 114 USPQ2d at 1831.
There is no such substantial evidence of the public’s perception in the record now
before us.
As we find that the Examining Attorney has failed to show, by clear evidence, that
the relevant public would understand the term SILENCER SHOP primarily to refer
to retail sporting goods stores as identified in the application, we reverse the
Examining Attorney’s refusal to register the mark on the ground that it is generic.
3. Refusal on grounds of mere descriptiveness; acquired distinctiveness.
Applicant has requested registration of its mark under Section 2(f), 15 U.S.C.
§ 1052(f), on the ground that it has acquired distinctiveness as Applicant’s source
indicator. Where an applicant requests registration under Section 2(f), the
examining attorney need not prove that the mark is merely descriptive. Rather, the
mark’s “lack of inherent distinctiveness [is] an established fact.” Yamaha
International Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005
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(Fed. Cir. 1988). The question of inherent distinctiveness “is a nonissue” under
Section 2(f), and the only remaining issue is acquired distinctiveness. Id.
Acquired distinctiveness is generally understood to mean an acquired “mental
association in buyers’ minds between the alleged mark and a single source of the
product.” 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 15:5 (4th ed. June 2016 update). “It is only necessary that a
‘substantial part’ of the buying class make such an association.” Id. §15:45. The
Trademark Act is silent as to the quantum of evidence that is necessary to establish
acquired distinctiveness, except for the provision of Section 2(f) that states, “The
Director may accept as prima facie evidence that the mark has become distinctive
… proof of substantially exclusive and continuous use” of the mark in commerce for
the immediately preceding five years. 15 U.S.C. § 1052(f) (emphasis added). We
determine whether Applicant’s mark has acquired distinctiveness based on the
entire record, keeping in mind that Applicant has the “ultimate burden of
persuasion” as to acquired distinctiveness. See Yamaha v. Hoshino Gakki, 6
USPQ2d at 1004. The amount and character of evidence required to establish
acquired distinctiveness depends on the facts of each case and the nature of the
mark sought to be registered. See Roux Labs., Inc. v. Clairol Inc., 427 F.2d 823, 829,
166 USPQ 34, 39 (CCPA 1970); In re Hehr Mfg. Co., 279 F.2d 526, 528, 126 USPQ
381, 383 (CCPA 1960).
Applicant has submitted a sworn declaration of its President and owner, David
Matheny. It states, in pertinent part, that Applicant has used the designation
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SILENCER SHOP in interstate commerce continuously since July 6, 2011 “in
connection with firearms–related products and services” and “additional services …,
including firearms transfers in accordance with the National Firearms Act …”;20
and that Applicant has the largest percentage market share of any company in the
NFA firearm transfer marketplace and has facilitated “the transfer of … 23% of all
individually owned suppressors in the United States.”21 Although this is a very
impressive market share, it relates only obliquely, or not at all, to the relevant
market of retail sporting goods stores. Even if we assume that the Applicant’s
services are stores that sell suppressors at retail, it is not clear from this declaration
whether Applicant claims to have sold 23% of the individually owned suppressors in
the U.S., or merely to have transferred them. As we have noted above, the service of
transferring a suppressor, which is an administrative advocacy service,22 is
different from retail sales of suppressors, and Applicant has admitted that some of
its transfer services are provided not to customers of its retail store, but to persons
who have purchased a suppressor elsewhere.23
Applicant’s declarant stated that Applicant has expended “over $877,000 dollars
to date” on marketing for the brand and currently expends “$50,000 each month for
marketing.”24 Again, it is not clear whether these figures include marketing for
Applicant’s transfer services rather than its retail store services. In any event, these

20 Matheny declaration ¶ 2, Applicant’s response of February 17, 2015 at 20.
21 Matheny dec. ¶ 3, id.
22 See, e.g., Matheny dec. ¶¶ 13-14, id. at 23.
23 Applicant’s brief at 6, 4 TTABVUE 11.
24 Matheny dec. ¶ 6, Applicant’s response of February 17, 2015 at 21.
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figures are relatively modest for purposes of demonstrating market recognition.
Applicant’s revenues in 2014 were $14,493,000, and revenues increased
dramatically between 2011 and 2014. However, Mr. Matheny states that “A
significant portion of this revenue is derived from Silencer Shop’s suppressor sales
and NFA firearms transfer services,”25 leaving open the question of how much
actually derived from Applicant’s retail sales alone.
Applicant has advertised in 12 print publications and 9 online publications; and
on 20 online shooting hobbyist discussion forums.26 Applicant has submitted a small
sample of its advertisements.27 Applicant maintains an “online blog website,” on
which it posts product reviews and industry news videos, and has a Facebook page
“followed by over 43,000 members.”28
Applicant has submitted three declarations29 from customers (expressed largely in
identical wording) who explain how they first heard about Applicant’s store. They
state that SILENCER SHOP “is the predominant brand in the sale of suppressors,
tactical firearms, and NFA firearms”; and “the most well-known and trusted brand
in the industry.” They state, “I am unaware of any other retailers similar to Silencer
Shop, who focus on NFA firearms and suppressors, who maintain a retail location
open to the public.” The declarants state that they have “seen Silencer Shop
presentations” at trade shows; that they consult its website for news about new

25 Matheny dec. ¶ 10 and n.3, id. at 22.
26 Matheny dec. ¶¶ 7-8, id. at 21-22.
27 Matheny dec. Exhibit E, id. at 41-58.
28 Matheny dec. ¶ 9, id. at 22.
29 Id. at 26-33.
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products, product reviews, and demonstration videos; that “Silencer Shop often
seems to have news and reviews regarding new products before other sources”; and
that they use Applicant’s Facebook page “as a community-building platform.” The
declarants say that they are aware of Applicant’s “additional services…, including
firearms transfers”; and each declarant states that he has “come to associate … the
SILENCER SHOP mark as an indication of the source of [Applicant’s] goods and
services, and not merely describing the nature of the goods and services offered …”
Applicant has submitted the declaration of a manufacturer of firearm
suppressors30 that has sold product to Applicant since 2011, stating that Applicant
accounts for about 33% of the manufacturer’s sales, and describing SILENCER
SHOP as “the most well-known brand name in the retail industry.” The declarant
states that he is familiar with Applicant’s advertising and outreach efforts; that his
company regularly refers customers to Applicant’s store; and that his company “and
other manufacturers in the firearm suppressor industry have come to associate …
the SILENCER SHOP mark as an indicator of the source of goods and services sold,
and not merely describing the nature of the goods and services offered …”
Applicant has submitted the declarations of two firearms brokers,31 who state (in
closely similar words) that “whenever a customer requests to purchase a
suppressor, I now refer them to Silencer Shop”; that “SILENCER SHOP is a very
well established brand, and customers are often familiar with the SILENCER
SHOP name before I refer them”; that SILENCER SHOP “is the most well-known

30 Id. at 34-35.
31 Id. at 37-40.
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retailer of suppressors in the country” and is “a predominant and credible source of
suppressors and industry information, and has established a strong reputation for
customer support.” They also state that they “associate … the SILENCER SHOP
mark as an indication of the source of the aforementioned goods and services, and
not merely describing the nature of the goods and services offered …”
Applicant has submitted one page of the results of a Google search for “silencer
shop.”32 Applicant argues:
[The search] yielded Applicant’s website as the very first
entry, with the remainder of the first page of results
referring entirely to Applicant via additional third party
websites such as: Facebook.com, Youtube.com, Yelp.com.
(Citation omitted.) It is evident from these search results
that the relevant consumer who inputs the search term
‘SILENCER SHOP’ is not simply looking for general
information about firearms suppressors, nor merely
searching for any seller of suppressors, but is specifically
seeking information regarding Applicant’s widely-
recognized trademark and brand.33
We do not agree with Applicant’s characterization of this evidence. Google search
results obtained by Applicant do not logically prove what other searchers hope or
expect to find when they perform a Google search. In any event, we are not privy to
the algorithm by which Google selects and displays the results of a search,34 and we
cannot simply presume that the order of search results has trademark significance.

32 Applicant’s response of September 22, 2015 at 26.
33 Applicant’s brief at 12-13, 4 TTABVUE 18-19.
34 We have noted the evidence regarding “How Search Works” (Applicant’s response of
September 22, 2015 at 19-24) but are not persuaded by it to interpret the Google search
results as Applicant proposes.
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Considering all of the evidence of record (including evidence not specifically
addressed herein), we are not persuaded that Applicant’s mark has acquired
distinctiveness. The record indicates that Applicant operates a store at only a single
location in Austin, Texas, as well as an online store. Applicant’s revenues and
advertising expenditures are modest and, in any event, are presented in an
equivocal manner that combines irrelevant revenues and expenses with those that
are relevant to Applicant’s store services. The declarations of customers, brokers,
and a manufacturer are few in number and anecdotal, providing the views of only a
few persons who have had direct and extensive contact with Applicant, rather than
a view of a substantial part of the relevant buying class. Moreover, the evidence of
Applicant’s efforts in the fields of suppressor sales and transfers are not clearly
relevant to a showing of acquired distinctiveness in the field of retail sporting goods
stores. We find that Applicant has failed to demonstrate that its mark has become
distinctive of its identified services within the meaning of Section 2(f). Accordingly,
we affirm the Examining Attorney’s refusal to register the mark on the Principal
Register.
4. Registration on the Supplemental Register.
Applicant, in its response of September 22, 2015, requested registration on the
Supplemental Register in the event that the Examining Attorney’s refusal on
grounds of genericness were withdrawn but his refusal on grounds of mere
descriptiveness were maintained. Under the present circumvents, and on this
Serial No. 86268898

19

record, we find that Applicant’s mark is entitled to registration on the
Supplemental Register.
Decision: The refusal to accept Applicant’s proposed amendment to the
identification of services is AFFIRMED. The refusal to register Applicant’s mark on
the ground that it is generic and thus incapable of distinguishing Applicant’s
services is REVERSED. The refusal to register Applicant’s mark on the Principal
Register on the ground that it is merely descriptive under Section 2(e)(1) and that
Applicant has failed to demonstrate acquired distinctiveness under Section 2(f) is
AFFIRMED. Registration of Applicant’s mark on the Supplemental Register, as
requested by Applicant in the alternative, is ALLOWED. The mark will proceed to
registration on the Supplemental Register for services identified as “retail sporting
goods store.”35

35 The USPTO database has been adjusted to reflect the correct identification of services,
which is “retail sporting goods store.”