Joanne Slokevage

Trademark Trial and Appeal Board

Feb 4, 2005

No. 75602873re (T.T.A.B. Feb. 4, 2005)

Mailed:
February 4, 2005
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Joanne Slokevage
________

Serial No. 75602873
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Request for Reconsideration
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Joanne Slokevage, pro se.

Douglas M. Lee, Trademark Examining Attorney, Law Office
108 (David Shallant, Managing Attorney).
_______

Before Seeherman, Quinn and Bucher, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
The Board, in a final decision dated November 10,
2004, affirmed the refusal to register the applied-for
matter (the designation FLASH DARE! and design) pursuant
to Sections 1, 2 and 45 of the Trademark Act, inasmuch as
it constitutes a configuration of the goods that is not
inherently distinctive and thus would not be perceived as a
trademark. Nonetheless, in accordance with Trademark Rule
2.142(g), the Board determined that this decision would be
set aside and applicant’s applied-for matter would be
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75602873
- 2 -
published for opposition if applicant, no later than thirty
days from the mailing date of that decision, submitted an
appropriate disclaimer “of the holes and flaps portion” of
the applied-for matter.
1
On December 10, 2004, applicant timely submitted a
disclaimer that was not in the format indicated in the
Board’s November 10 decision.2 She accompanied this paper
with a request for an extension of time in the event the
Board should deem the proffered disclaimer unacceptable.
Prior to the Board’s having had an opportunity to review
this paper, applicant telephoned the author of this opinion
and was told that there was some question about whether her
proposed disclaimer would be acceptable as written.

1 Application Serial No. 75602873 was filed on December 4,
1998, based upon applicant’s allegation of first use of the mark
in commerce at least as early as December 18, 1997. The goods
were identified in the application as filed, as “pants, overalls,
shorts, culottes, dresses, skirts,” in International Class 25.
2 “No claim is made to the exclusive right to use the U.S.
Pat. Des. 410,689 holes and flaps feature, apart from the mark as
shown.”

Serial No. 75602873
- 3 -
Accordingly, on January 6, 2005, applicant withdrew this
disclaimer and sought to substitute a more limited
disclaimer.3 Applicant, on January 10, 2005, also requested
reconsideration of the Board’s decision of November 10,
2004, pointing out what she alleges are misstatements,
errors and oversights by the Board.
Applicant’s arguments constitute nothing but
reargument of the points made during prosecution of this
application and appeal of the final refusal. The Board
considered these arguments in rendering our final decision,
and finds no error in that decision – with the exeption of
a typographical error in a citation to the Trademark Manual
of Examining Procedure (TMEP).4 Therefore, we remain of the
view that the holes and flaps portion of the applied-for
matter5 constitutes a product design which is not inherently
distinctive, and would not, without evidence of acquired

3 “No claim is made to the exclusive right to use the flaps
feature, apart from the mark as shown.”
4 In the third and fourth lines of p. 6 of our decision of
November 10, 2004, a citation intending to reference TMEP
§1213.05 and §1213.05(f) contained incorrect numbers for that
TMEP Section.
5 It was not material to our decision of November 10 whether
or not applicant’s alleged source indicators in the earlier
registration and/or the current application reflect a “seat
pocket button” or whether the hole exposes the wearer’s skin,
thong or shirt, etc.

Serial No. 75602873
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distinctiveness, be perceived as a trademark. Accordingly,
the request for reconsideration is denied.
In accordance with 37 C.F.R. §2.145(d)(1), applicant’s
time for filing an appeal or commencing a civil action
shall expire two months from the date of this decision.
Decision: The final decision dated November 10, 2004
stands. Applicant’s request for reconsideration is hereby
denied.