Leslie A. Snyder

Trademark Trial and Appeal Board

Mar 1, 2005

No. 76526403 (T.T.A.B. Mar. 1, 2005)

Mailed:
March 1, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Leslie A. Snyder
________

Serial No. 76526403
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Norman E. Lehrer for Leslie A. Snyder.

Ronald L. Fairbanks, Trademark Examining Attorney, Law
Office 112 (Janice O’Lear, Managing Attorney).
_______

Before Seeherman, Bucher and Rogers, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Leslie A. Snyder, an individual, has applied to
register the mark WHEELCHAIRGEAR and design, as shown
below, for “all purpose carrying bags, pouches, totes and
packs for use with wheelchairs, walkers, crutches and other
ambulatory aids.”1

1 Application Serial No. 76526403, filed June 26, 2003, and
asserting a bona fide intention to use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76526403
2

The Trademark Examining Attorney has required that
applicant disclaim exclusive rights to WHEELCHAIRGEAR apart
from the mark as shown. When applicant refused to submit
the required disclaimer, the Examining Attorney issued a
final Office Action refusing registration. It is from that
action that applicant has filed the instant appeal.
Applicant and the Examining Attorney have filed appeal
briefs. Applicant did not request an oral hearing.
Section 6(a) of the Trademark Act, 15 U.S.C. §1056(a),
provides, in part, that The Director may require the
applicant to disclaim an unregistrable component of a mark
otherwise registrable. Section 2(e)(1) of the Act, 15
U.S.C. §1052(e)(1), prohibits the registration of a mark
that, when used on or in connection with the goods of the
applicant, is merely descriptive of them.
In support of his position that WHEELCHAIR GEAR is
merely descriptive of applicant’s identified goods, the
Ser No. 76526403
3
Examining Attorney has submitted the following definitions2
of the words “wheelchair” and “gear”:
Wheelchair or Wheel Chair: A chair
mounted on large wheels for the use of
a sick or disabled person.

Gear: 1. Equipment, such as tools or
clothing, used for a particular
activity; paraphernalia: fishing gear.
See synonyms at equipment
2. Clothing and accessories: the latest
gear for teenagers.

He has also submitted several pages of the “search results”
from a Google search of “gear ‘wheelchair accessories’-
motor.” They include the following:
AJ’s Essential Chair Gear
Essential wheelchair accessories…With
this product you can see the world
without having to drag around a lot of
heavy bathroom gear
www.disabilitytravel.com/travel/essenti
als/chair_essentials2.htm

Assistivetech.net|Search for AT|By
Function/Activity Results
…Push Ease Wheelchair Hand Gear-
Wheelchair gloves…
www.assistivetech.net/search/FA_search4
.dfm?

2 The American Heritage Dictionary of the English Language, 3d
ed. © 1992). With its appeal brief the Examining Attorney
recited additional definitions from on-line dictionaries. These
definitions were not properly submitted as evidence during the
examination of the application. Because they are from on-line
dictionaries, and because there is no indication that they are
available in book form, we decline to take judicial notice of
them. See In re CyberFinancial.Net Inc., 65 USPQ2d 1789, n.3
(TTAB 2002) In re Total Quality Group Inc., 51 USPQ2d 1474, 1476
(TTAB 1999).
Ser No. 76526403
4
WheelchairNet: Daily living equipment
for people who use…
…Disability Gear-Accessories for
wheelchairs, scooters, walkers and
more.
www.wheelchairnet.org/WCN_ProdServ/Prod
ucts/adidev.html

DA/Quest 5-4/Wheelchair Accessories
…alarm cushion, and gloves and other
hand gear. Maddak Inc. produces a line
of independent living aids called
Ableware. Among wheelchair accessories
offered…
www.mdausa.org/publications/Quest/q54ch
airstuff.html

Accessories
…Grover Gear-Makes wheelchair
accessories such as hunting covers and
cushion covers.
www.iseekhealth.com/accessories05889.ph
p

Ableware Wheelchair Accessories
…Return Policy. Wheelchair
Accessories. Lap Top Wheelchair Desk.
Roomy storage beneath the lid for
…Grover Gear. 218 2nd Avenue North, PO
Box 84, Bowlus MN
www.grovergear.com/id64.htm

A mark is merely descriptive, and therefore prohibited
from registration by Section 2(e)(1), if it immediately
conveys knowledge of the ingredients, qualities, or
characteristics of the goods or services with which it is
used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). The question of whether a particular term is
merely descriptive must be determined not in the abstract,
but in relation to the goods or services for which
Ser No. 76526403
5
registration is sought, the context in which the mark is
used, and the significance that the mark is likely to have,
because of the manner in which it is used, to the average
purchaser as he encounters goods bearing the mark in the
marketplace. In re Engineering Systems Corp., 2 USPQ2d
1075 (TTAB 1986).
It is obvious that the word WHEELCHAIR describes a
significant feature of applicant’s goods. Applicant’s own
identification describes its various bags and packs as
being for use with wheelchairs.3 These carrying bags,
pouches, totes and packs are accessories that are used on
the wheelchairs, and would be used by people in
wheelchairs. These goods also fall within the dictionary
definition of gear: “1. Equipment, such as tools or
clothing, used for a particular activity; paraphernalia:
fishing gear. See synonyms at equipment.” They can be
considered as paraphernalia, or as equipment used by
individuals who conduct their activities from a wheelchair.

3 We note that applicant’s identification states that its goods
are for use not only with wheelchairs, but “walkers, crutches and
other ambulatory aids.” We have analyzed the issue with respect
to wheelchairs because “registration will be denied if a mark is
merely descriptive of any of the goods or services for which
registration is sought.” (emphasis in original) In re Quik-
Print Copy Shop, Inc., 616 F.2d 513, 205 USPQ 505, 507 (CCPA
1980).

Ser No. 76526403
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Moreover, the Google search results support the
dictionary meaning of “gear,” when used with respect to
wheelchair accessories/accoutrements/items, as indicating
paraphernalia or equipment, on pages that would be of
interest to the class of purcahsers for applicant’s goods.
We note that the “search results” pages of a Google search
generally have limited probative value because the phrases
from the actual websites which are listed in the search
results are so truncated. For this reason, Examining
Attorneys are strongly encouraged to submit the pages from
the actual website, rather than relying only on the Google
report. However, the listings that have been provided in
this instance are sufficient for us to conclude that “gear”
is used for its broader dictionary meanings of
paraphernalia and equipment for this class of
purchasers/users, and is not limited to meaning only
“clothing,” as applicant suggests. For example, the
excerpt reporting the WheelchairNet website uses the term
“Disability Gear” for “Accessories for wheelchairs.” The
title of the excerpt reporting the disabilitytravel.com
website is “AJ’s Essential Chair Gear.”
It is clear that consumers of goods such as those of
applicant, whether they be people who use wheelchairs or
purchasers of goods for those in wheelchairs, would
Ser No. 76526403
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understand the word GEAR in its usual dictionary sense and
so would perceive the term to mean, inter alia, equipment
for use on or in connection with wheelchairs. When the
term WHEELCHAIRGEAR is used in a trademark for all purpose
carrying bags, pouches, totes and packs for use with
wheelchairs, it directly conveys to consumers for such
goods that they are accessories that are used on
wheelchairs. As such, the term is merely descriptive of
the identified goods.
Applicant has argued that “one seeing or hearing the
term WHEELCHAIRGEAR would not immediately know that
Appellant’s goods were all purpose carrying bags, pouches,
totes and packs for use with wheelchairs, walkers, crutches
and other ambulatory aids.” Brief, pp. 2-3. This
argument, however, ignores the principle stated above, that
the determination of whether a term is merely descriptive
is not made in the abstract, but in relation to the goods
for which registration is sought. For the same reason, we
find unpersuasive applicant’s argument that WHEELCHAIRGEAR
could refer to mechanical parts.
Applicant also states that “there is no such thing as
wheelchairgear.” Brief, p. 4. Such a position would be
applicable if the Examining Attorney had required a
disclaimer on the basis that the term is generic. However,
Ser No. 76526403
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the Examining Attorney has asserted only that the term is
merely descriptive and to be found merely descriptive a
term need not be the name of the product; it need only
directly convey information concerning a quality,
characteristic, function, ingredient, attribute or feature
of a product (or service). See In re Venture Lending
Associates, 226 USPQ 285, 286 (TTAB 1985).
Applicant also argues that “the descriptive
significance of the individual terms is lost in the mark as
a whole.”4 Brief, p. 5. Applicant claims that the
expression WHEELCHAIRGEAR “has an alliterative lilting
cadence and rhyme (chair and gear) which encourages persons
encountering it to perceive it as a whole.” Id. We do not
agree. There is nothing alliterative or rhyming about the
syllables “chair” and “gear.” Cf. In re Kraft, Inc. 218
USPQ 571 (TTAB 1983) (LIGHT N’ LIVELY). Consumers for
these bags that are used with wheelchairs will immediately
recognize that the term consists of the word WHEELCHAIR and
GEAR, and will, as stated above, immediately understand
that applicant’s goods are accessories for wheelchairs.

4 Because this appears to be an alternative argument, we have
not taken this statement to be a concession by applicant that the
individual terms are merely descriptive.

Ser No. 76526403
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Applicant has asserted that competitors do not need to
use the term WHEELCHAIR GEAR to describe similar products
because other words could be utilized. Citing In re
Reynolds Metals Co., 178 USPQ 296 (CCPA 1973), applicant
states that the mark BROWN-IN-BAG was found suggestive for
plastic bags because competitors could use other terms to
describe their goods. This is a misreading of Reynolds.
The Court first found the mark to be suggestive, and the
discussion of whether competitors would be deprived of a
necessary term was made in response to a concern of the
Commissioner. Case law is well-established that a mark
should be found merely descriptive if it immediately
conveys knowledge of the qualities, characteristics, etc.
of the goods. There may be some situations in which a term
that does not directly convey such information may be found
merely descriptive if it would deprive competitors of a
necessary word to describe their products, but the reverse
is not true. If a term immediately conveys such
information, as we have found it does here, it is merely
descriptive, regardless of whether other words could also
be used.
This brings us to applicant’s argument that, to his
knowledge, no other entity is using the term WHEELCHAIRGEAR
or any similar term in connection with similar goods. The
Ser No. 76526403
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fact that no other entity has been uncovered that uses
WHEELCHAIRGEAR as a trademark may simply reflect that it is
a descriptive term, and that other companies prefer to
adopt a stronger and/or registrable trademark. There is
evidence from the Google search results submitted by the
Examining Attorney that “gear” is used by third parties, in
that a company calls itself “Grover Gear” and “Disability
Gear” is used as the title of a category of products. In
any event, as the Examining Attorney has pointed out, the
fact that an applicant may be the first or only user of a
term does not justify registration if the term is merely
descriptive. See In re Alpha Analytics Investment Group
LLC, 62 USPQ2d 1852 (TTAB 2002).
Decision: Because we have found that WHEELCHAIRGEAR
is merely descriptive of applicant’s identified goods, the
Examining Attorney’s requirement for a disclaimer of this
term was correct, and the refusal of registration of the
mark in the absence of a disclaimer of this term is
affirmed. However, if applicant submits the required
disclaimer within thirty days from the mailing date of this
decision, the decision will be set aside and the
application will proceed to publication.