LG Electronics Inc.

Trademark Trial and Appeal Board

Aug 26, 2020

88055289 (T.T.A.B. Aug. 26, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 26, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re LG Electronics Inc.
_____

Serial No. 88055289
_____

Robert J. Kenney and Michael T. Smith of Birch, Stewart, Kolasch & Birch, LLP,
for LG Electronics Inc.

Anthony Rinker, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
_____

Before Zervas, Shaw, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
LG Electronics Inc. (“Applicant”) seeks registration on the Principal Register of
the proposed standard character mark DOOR-IN-DOOR for “Electric refrigerators,”
in International Class 11.1

1 Application Serial No. 88055289 was filed on July 27, 2018 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on claimed use of the mark anywhere and use of
the mark in commerce since at least as early as June 2012. Applicant claims that the
proposed mark has acquired distinctiveness under Section 2(f) of the Trademark Act, 15
U.S.C. § 1052(f).
Serial No. 88055289
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The Trademark Examining Attorney has refused registration of Applicant’s
proposed mark under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on
the ground that the proposed mark is merely descriptive of the goods identified in the
application, and has not acquired distinctiveness under Section 2(f) of the Trademark
Act, 15 U.S.C. § 1052(f).
When the refusal was made final, Applicant appealed and requested
reconsideration, which was denied. The appeal is fully briefed.2 We affirm the refusal
to register.
I. Record on Appeal3
The record on appeal includes Applicant’s specimen, a portion of which we
reproduce below:

2 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited materials
appear.
3 Citations in this opinion to the application record, including the request for reconsideration
and its denial, are to pages in the Trademark Status & Document Retrieval (“TSDR”)
database of the United States Patent and Trademark Office (“USPTO”). As discussed below,
although Applicant has conceded that its proposed mark is merely descriptive by seeking
registration under Section 2(f), see In re Guaranteed Rate, Inc., 2020 USPQ2d 10869, *2
(TTAB 2020), the degree of descriptiveness of the mark must be considered in the analysis of
the sufficiency of Applicant’s Section 2(f) showing, Royal Crown Cola Co. v. Coca-Cola Co.,
892 F.3d 1358, 127 USPQ2d 1041, 1047-48 (Fed. Cir. 2018); Guaranteed Rate, 2020 USPQ2d
10869 at *3, so we will summarize the record evidence regarding both mere descriptiveness
and acquired distinctiveness.
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4
and the following additional materials:5

4 July 7, 2018 Application at TSDR 5.
5 Applicant attached most of the materials that it made of record as exhibits to its appeal
brief. 4 TTABVUE 8-59. “Parties to Board cases occasionally seem to be under the impression
that attaching previously-filed evidence to a brief and citing to the attachments, rather than
to the original submission is a courtesy or convenience to the Board. It is neither.” In re
Michalko, 110 USPQ2d 1949, 1950 (TTAB 2014). On an appeal, the entire record “is readily
available to the panel,” and because “we must determine whether attachments to briefs are
properly of record, citation to the attachment requires examination of the attachment and
then an attempt to locate the same evidence in the record developed during prosecution of
the application.” Id. at 1950-51. This “requir[es] more time and effort than would have been
necessary if citations directly to the prosecution history were provided.” Id. at 1951.
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 Dictionary definitions of the words “door,” and “in,” made of record by the
Examining Attorney;6
 USPTO electronic records regarding Applicant’s cancelled Principal Register
Registration No. 4235912 of the mark DID DOOR IN DOOR (DOOR-IN-DOOR
disclaimed) for electric refrigerators, Applicant’s Supplemental Register
Registration No. 4766120 of the mark DOOR-IN-DOOR for electric
refrigerators, and Applicant’s Supplemental Register Registration No.
4887090 of the mark DUAL DOOR-IN-DOOR for electric refrigerators and
other goods, made of record by the Examining Attorney;7
 Internet webpages and advertisements reflecting the use of Applicant’s
proposed mark by Applicant’s retailers and by Applicant, made of record by
Applicant;8 and
 Excerpts from a study described as “2012 TVC Ad Detail Results” regarding
consumer responses to certain of Applicant’s advertisements,9 a chart of
Applicant’s marketing expenditures during the period 2013-2017 to promote
goods bearing the proposed mark,10 examples of print advertising for goods

6 November 23, 2018 Office Action at TSDR 2-11.
7 Id. at TSDR 12-20.
8 May 23, 2019 Response to Office Action at TSDR 2-23.
9 November 25, 2019 Request for Reconsideration at TSDR 1-3.
10 Id. at TSDR 4.
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bearing the proposed mark,11 and invoices for point-of-sale displays for goods
bearing the proposed mark,12 all made of record by Applicant.
II. Analysis of Refusal
Applicant has conceded that DOOR-IN-DOOR is merely descriptive by claiming
in its appeal brief that the mere descriptiveness refusal to register “should be
reversed because the mark has acquired the distinctiveness necessary to be eligible
for registration . . . .” 4 TTABVUE 3. See Guaranteed Rate, 2020 USPQ2d 10869 at
*2. Section 2(f) of the Trademark Act provides that a proposed mark found to be
merely descriptive under Section 2(e)(1) of the Act may be registered on the Principal
Register if “it has become distinctive of the applicant’s goods in commerce.” 15 U.S.C.
§ 1052(f). See Guaranteed Rate, 2020 USPQ2d 10869 at *2-3. “To establish that a
term has acquired distinctiveness, ‘an applicant must show that in the minds of the
public, the primary significance of a product feature or term is to identify the source
of the product rather than the product itself.” Id. at *2 (quoting In re La. Fish Fry
Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1265 (Fed. Cir. 2015)).
“To meet this burden, an applicant may offer three basic types of evidence:
1. A claim of ownership of one or more active prior
registrations on the Principal Register of the same mark
for goods or services that are sufficiently similar to those
identified in the pending application. Trademark Rule
2.41(a)(1), 37 C.F.R. § 2.41(a)(1).
2. A verified statement that the mark has become
distinctive of the applicant’s goods or services by reason of
the applicant’s substantially exclusive and continuous use

11 Id. at TSDR 5-8.
12 Id. at TSDR 9-21.
Serial No. 88055289
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of the mark in commerce for five years before the date on
which the claim of distinctiveness is made. Trademark
Rule 2.41(a)(2), 37 C.F.R. § 2.41(a)(2).
3. Other appropriate evidence of acquired distinctiveness.
Trademark Rule 2.41(a)(3), 27 C.F.R. § 2.41(a)(3).
Id. An “applicant may submit one or any combination of these types of evidence.” Id.
“Our ultimate Section 2(f) analysis of acquired distinctiveness and determination in
this case is based on all of the evidence considered as a whole.” Id.
In determining whether DOOR-IN-DOOR has acquired distinctiveness, we
consider the following six factors:
(1) association of the [mark] with a particular source by
actual purchasers (typically measured by customer
surveys); (2) length, degree, and exclusivity of use; (3)
amount and manner of advertising; (4) amount of sales and
number of customers; (5) intentional copying; and (6)
unsolicited media coverage of the product embodying the
mark.
Id. at *3 (quoting In re Snowizard, Inc., 129 USPQ2d 1001, 1005 (TTAB 2018)
(quoting Converse, Inc. v. Int’l Trade Comm’n, 907 F.3d 1361, 128 USPQ2d 1538, 1546
(Fed. Cir. 2018))). Where evidence is presented on these factors, they “are to be
weighed together in determining the existence of secondary meaning.” Id. (quoting
Converse, 128 USPQ2d at 1546).
A. The Degree of Descriptiveness of Applicant’s Proposed Mark
“To assess Applicant’s burden in showing acquired distinctiveness, we must
determine the degree of descriptiveness of [DOOR-IN-DOOR].” Id. (citing In re
Virtual Indep. Paralegals, LLC, 2019 USPQ2d 111512, *10 (TTAB 2019) (internal
citation omitted)). Applicant does not address this issue in its briefs. The Examining
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Attorney argues that the proposed mark “is highly descriptive of applicant’s goods”
because “DOOR-IN-DOOR immediately describes a feature of a refrigerator
incorporating a design of a main door that encloses or surrounds a second smaller
door inside it.” 6 TTABVUE 5-6.
“Evidence of the public’s understanding of [a] term . . . may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listings in
dictionaries, trade journals, newspapers[,] and other publications.” Real Foods Pty
Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018)
(quoting Royal Crown, 127 USPQ2d at 1046). “These sources may include [w]ebsites,
publications and use ‘in labels, packages, or in advertising material directed to the
goods.’” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1710 (Fed. Cir. 2017)
(quoting In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)).
The record contains multiple examples of statements in Applicant’s advertising
and promotional materials that discuss the “Door-in-Door” feature of its refrigerators.
We reproduce several examples below:
13
14

13 May 23, 2019 Response to Office Action at TSDR 15. All highlighting in these materials
was supplied by Applicant.
14 Id.
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15
16
17
18

15 Id.
16 Id. at TSDR 18.
17 Id.
18 Id. at TSDR 21.
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19
20
These materials explain verbally and visually that the DOOR-IN-DOOR feature
of Applicant’s refrigerators involves a second door built into the primary refrigerator
door. As the promotional piece immediately above states, the “door within a door

19 Id. at TSDR 22.
20 Id. at TSDR 23.
Serial No. 88055289
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feature” enables a user of the refrigerator “to access gotta-have snacks and beverages
without opening the entire refrigerator.” The picture immediately below shows the
Door-in-Door feature in use:
21
We agree with the Examining Attorney that the record shows “that applicant is
offering a refrigerator incorporating a design feature of a main door that encloses or
surrounds a second smaller door inside of it. Applicant’s refrigerators feature a door
within a door.” 6 TTABVUE 4. We find that the proposed mark DOOR-IN-DOOR is

21 Id. at TSDR 21.
Serial No. 88055289
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highly descriptive of a key feature of the refrigerators, particularly because the key
feature is described as a “door within a door .” “Because of the highly descriptive
nature of the proposed mark, Applicant faces a proportionately higher burden to
establish acquired distinctiveness.” Guaranteed Rate, 2020 USPQ2d 10869 at *4
(citing Royal Crown, 127 USPQ2d at 1047).
B. The Sufficiency of Applicant’s Evidence of Acquired
Distinctiveness
As noted above, the Board explained in Guaranteed Rate that we must consider
all of the evidence proffered by Applicant to determine whether it is sufficient, in its
totality, to show that DOOR-IN-DOOR has acquired distinctiveness as Applicant’s
mark. Guaranteed Rate, 2020 USPQ2d 10869 at *2. Applicant offers its prior
registrations and a claim of more than five years’ use, as well as a purported
consumer study, evidence of marketing expenditures, and examples of its advertising.
We turn first to Applicant’s registration and five years’ use evidence because
“[d]epending on the nature of the mark and the facts in the record, the examining
attorney may determine that a claim of ownership of a prior registration(s) or a claim
of five years’ substantially exclusive and continuous use in commerce is insufficient
to establish a prima facie case of acquired distinctiveness.” Id. In that case, Applicant
must rely on its “other evidence of acquired distinctiveness.” Id.
1. Prior Registration No. 4235912
Trademark Rule 2.41(a) provides that an applicant’s “ownership of one or more
active prior registrations on the Principal Register . . . of the same mark may be
accepted as prima facie evidence of distinctiveness if the goods or services are
Serial No. 88055289
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sufficiently similar to the goods and services in the application.” 37 C.F.R. § 2.41(a).
Applicant argues that
[A]t the time the Application was filed, Applicant was the
owner of US Reg. No. 4235912 for the mark DID DOOR IN
DOOR for use with “electric refrigerators.” The prior
registration was in full force and effect until at least May
6, 2019. The Application was filed July 27, 2018. Thus, the
prior registration was valid at the time the Application was
filed and Applicant claimed that the DOOR-IN-DOOR
mark had acquired distinctiveness for use with “electric
refrigerators.”
4 TTABVUE 3-4. Applicant argues that the DID DOOR-IN-DOOR mark in this prior
registration was the “same mark” as its proposed DOOR-IN-DOOR mark within the
meaning of Trademark Rule 2.141(a)(1) because the two marks are legal equivalents,
id. at 4, and that it “may tack its use of DOOR-IN-DOOR onto the prior registration
for DID DOOR IN DOOR for the identical goods as evidence that Applicant’s mark
has acquired the distinctiveness necessary to be registrable on the Principal
Register.” Id. at 5.
The Examining Attorney responds that even assuming that the marks are legal
equivalents, “ownership of one or more prior registrations in which the relevant
wording is disclaimed is insufficient in this case to establish a claim of acquired
distinctiveness under Trademark Act Section 2(f).” 6 TTABVUE 7.
We agree with the Examining Attorney. Applicant’s cancelled registration
disclaimed the exclusive right to use DOOR-IN-DOOR, which is an admission of the
descriptiveness of that term when the disclaimer was entered, Quaker State Oil
Refining Corp. v. Quaker Oil Co., 453 F.2d 1296, 172 USPQ 361, 363 (CCPA 1972),
and Applicant cannot rely on the cancelled registration to show that the disclaimed
Serial No. 88055289
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term DOOR-IN-DOOR has acquired distinctiveness. Kellogg Co. v. Gen. Mills, Inc.,
82 USPQ2d 1766, 1771 n.5 (TTAB 2007).
2. Five or More Years of Substantially Exclusive and
Continuous Use and Applicant’s Other Registration
Applicant offers “[a]s further evidence that Applicant’s DOOR-IN-DOOR mark
has acquired the distinctiveness necessary for registration on the Principal Register”
its “continuous and substantially exclusive use of the mark since at least as early as
June 2012.” 4 TTABVUE 5. Applicant argues that its Supplemental Register
Registration No. 4766120 for the claimed mark DOOR-IN-DOOR for electric
refrigerators “confirms Applicant’s use of the mark at least as early as June 2012.”
Id.
The Examining Attorney responds that Applicant’s claim “is insufficient to show
acquired distinctiveness because the applied-for mark is highly descriptive of
applicant’s goods, i.e., the terms [sic] DOOR-IN-DOOR immediately describes a
feature of a refrigerator incorporating a design of a main door that encloses or
surrounds a second smaller door inside of it.” 6 TTABVUE 5-6. The Examining
Attorney also argues that Applicant “may not base a claim of acquired distinctiveness
under Trademark Act Section 2(f) on ownership of a registration on the Supplemental
Register.” Id. at 7.
In its reply brief, Applicant argues that in Converse, the Federal Circuit found
that “‘five years’ substantially exclusive and continuous use [of a mark] to weigh
strongly in favor of a finding of secondary meaning,” 7 TTABVUE 2 (quoting
Converse, 128 USPQ2d at 1547), and that Applicant “has used the DOOR-IN-DOOR
Serial No. 88055289
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mark substantially exclusively for nearly twice the time deemed by the Federal
Circuit to ‘weigh strongly in favor of a finding of secondary meaning.’” Id. (quoting
Converse, 128 USPQ2d at 1547). Applicant concludes that “[b]ased on this evidence
alone, the application should be approved for publication.” Id.
Applicant’s reliance on Converse is misplaced because Applicant’s quotation from
the opinion is offered out of context. The quoted language appears in a section of the
opinion addressing “the significance of the trademark owner’s and third parties’ prior
uses of the [involved] mark,” Converse, 128 USPQ2d at 1546, specifically, the
determination of the “most relevant period” of such uses for assessing, in
infringement cases, the trademark owner’s exclusivity of use. Id. The Federal Circuit
held that Section 2(f) “sets up an evidentiary rule for the [USPTO] Director rather
than courts,” id., but noted (in the portion of the opinion quoted by Applicant) that
“several other courts of appeals, drawing on section 2(f), have found five years’
substantially exclusive and continuous use to weigh strongly in favor of a finding of
secondary meaning.” Id. at 1547 (emphasis added) (citing Thomas & Betts Corp. v.
Panduit Corp., 138 F.3d 277, 46 USPQ2d 1026, 1040 (7th Cir. 1998); Sunbeam Prods.,
Inc. v. W. Bend Co., 123 F.3d 246, 44 USPQ2d 1161, 1167 (5th Cir. 1997), abrogated
on other grounds by TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 58
USPQ2d 1001 (2001); Stuart Hall Co. v. Ampad Corp., 51 F.3d 780, 34 USPQ2d 1428,
1435 (8th Cir. 1995); FN Herstal SA v. Clyde Armory Inc., 838 F.3d 1071, 120 USPQ2d
1186, 1195-96 (11th Cir. 2016) (declining to rely on Section 2(f)). The Federal Circuit
agreed with these courts to the extent that they “recognize[d] the importance of
Serial No. 88055289
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looking to this five-year period,” and held that “in evaluating factor 2 [length, degree,
and exclusivity of use], the ITC should reply principally on uses within the last five
years,” id., rather than uses “older than five years,” which “should only be considered
relevant if there is evidence that such uses were likely to have impacted consumers’
perceptions of the mark as of the relevant date.” Id.
Accordingly, Converse does not stand for the proposition that “‘five years’
substantially exclusive and continuous use [of a mark] . . . weigh[s] strongly in favor
of a finding of secondary meaning,” 7 TTABVUE 2, or abrogate the Federal Circuit’s
previous holding that for purposes of registration,
Although Section 2(f) of the Lanham Act, 15 U.S.C.
§ 1052(f), provides that that the PTO may accept five years
of “substantially exclusive and continuous” use as prima
facie evidence of acquired distinctiveness, the statute does
not require the PTO to do so. Particularly for a mark that
is as highly descriptive like FISH FRY PRODUCTS, the
Board was within its discretion not to accept Louisiana
Fish Fry’s alleged five years of substantially exclusive and
continuous use as prima facie evidence of acquired
distinctiveness.
La. Fish Fry Prods., 116 USPQ2d at 1265.
Applicant’s reliance on its Supplemental Register registration is similarly
unavailing. That registration is not a registration “on the Principal Register” within
the meaning of Trademark Rule 2.141(a)(1), and it cannot be relied on to establish
the length of Applicant’s use of DOOR-IN-DOOR because “registrations on the
supplemental register shall not be subject to or receive the advantages of” Section
7(b) of the Trademark Act.” 15 U.S.C. § 1094. See In re Federated Dep’t Stores Inc., 3
USPQ2d 1541, 1543 (TTAB 1987) (“[A] Supplemental Register registration is
Serial No. 88055289
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evidence of nothing more than the fact that the registration issued on the date printed
thereon.”).
We agree with the Examining Attorney that given the highly descriptive nature
of the proposed DOOR-IN-DOOR mark, Applicant’s unsubstantiated and unspecific
claim of “extensive use of the mark . . . since at least as early as 2012,” 4 TTABVUE
6,22 has little probative value in showing that DOOR-IN-DOOR has acquired “the
distinctiveness to be registrable on the Principal Register.” Id. Cf. Guaranteed Rate,
2020 USPQ2d 10869 at *4-6 (applicant’s sales under of mark in excess of $3.5 billion
in last 11 fiscal years were “impressive,” but insufficient to show acquired
distinctiveness even when coupled with other evidence). Accordingly, Applicant must
rely on its “other evidence of acquired distinctiveness.” Id. at *2.
3. Applicant’s Other Evidence
Applicant correctly notes that under
Trademark Rule 2.41(a)(3), 37 C.F.R. §2.41(a)(3), an
applicant may submit affidavits, declarations under 37
C.F.R. §2.20, depositions, or other appropriate evidence
showing the duration, extent, and nature of the applicant’s
use of a mark in commerce that may lawfully be regulated
by the U.S. Congress, advertising expenditures in
connection with such use, letters, or statements from the
trade and/or public, or other appropriate evidence tending
to show that the mark distinguishes the goods or services.
4 TTABVUE 6 (citing TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”)
Section 1212.06). But Applicant’s claim of “extensive use of the mark as shown in the
attached evidence since at least as early as 2012,” id., is based solely on argument of

22 Applicant’s claim is unaccompanied by any evidence of the “amount of sales and number of
customers,” the fourth Converse consideration.
Serial No. 88055289
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counsel, which is “no substitute for evidence.” In re OEP Enters., Inc., 2019 USPQ2d
309323, *14 (TTAB 2019) (quoting Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127
USPQ2d 1797, 1799 (Fed. Cir. 2018) (internal quotation omitted)). Applicant offers
no affidavit or declaration establishing the particulars of the claimed use, or
authenticating and explaining the materials that Applicant submitted. As a general
matter, and for the particular reasons discussed above and below, the absence of such
a sworn statement materially undermines the probative value of Applicant’s
evidence. Cf. La. Fish Fry Prods., 116 USPQ2d at 1265 (discussing contents of the
declaration of the applicant’s President that provided applicant’s sales figures);
Guaranteed Rate, 2020 USPQ2d 10869 at *4-6 (discussing contents of the declaration
of the applicant’s Chief Compliance Officer that provided sales and advertising
figures, the number of the applicant’s customers, examples of the applicant’s
advertising, and evidence of media coverage of services offered under the claimed
mark); In re Hikari Sales USA, Inc., 2019 USPQ2d 111514, *15-16 (TTAB 2019)
(discussing contents of the declaration of the applicant’s President and Chief
Operating Officer regarding the applicant’s sales and advertising under the claimed
mark).
a. Applicant’s Consumer Response Evidence
One consideration in assessing acquired distinctiveness is direct evidence of the
“association of the [mark] with a particular source by actual purchasers (typically
measured by customer surveys).” Guaranteed Rate, 2020 USPQ2d 10869 at *3. See
generally Kohler Co. v. Honda Giken Kogyo K.K., 125 USPQ2d 1468, 1508-09 (TTAB
2017) (discussing survey evidence under Section 2(f)). Applicant offers what it
Serial No. 88055289
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describes as “[c]onsumers’ recall and branding response to the DOOR-IN-DOOR
(DID) mark” and “[c]onsumers’ response and engagement in view of the DID
advertising.” 4 TTABVUE 6. Applicant claims that its “consumer recall data . . . shows
that nearly 100% of consumers who recalled the mark attributed the DOOR-IN-
DOOR mark to Applicant, and over 80% perceived the DOOR-IN-DOOR brand
positively.” 7 TTABVUE 3-4.
The Examining Attorney accurately describes this evidence as “consisting of a two
page excerpt from of [sic] a marketing study that appears to include statistical results
for consumer reactions to three different types of advertisements, where the mark
‘door in door’ appears in one of the advertisements in the study alongside dozens of
other random terms and trademarks.” 6 TTABVUE 8. He argues that it “is not
probative on the issue of applicant’s claim of acquired distinctiveness,” id. at 10, due
to Applicant’s failure to provide information regarding the survey. Id. at 8-10.
We reproduce the excerpted pages below:
23

23 November 25, 2019 Request for Reconsideration at TSDR 2.
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24
Applicant does not provide any explanation of the origin,25 purpose, nature, or
methodology of these studies involving the three referenced “XHA,” “Juice,” and
“DID” advertisements,26 or even such elementary information as the questions that
were asked, and we thus have no basis on which to assess the validity of the studies
or their purported conclusions.

24 Id. at TSDR 3.
25 The studies are stamped with the notation “LGE Internal Use Only,” id. at TSDR 2-3, but
it is not clear whether they were conducted by Applicant or an outside entity.
26 As discussed and shown above, Applicant made of record several advertisements containing
the proposed DOOR-IN-DOOR mark, including ones that discuss the “LG Door-in-Door™
Refrigerator,” May 23, 2019 Response to Office Action at TSDR 22, and the “LG Super-
Capacity French Door with Door-in-Door™.” November 25, 2019 Request for Reconsideration
at TSDR 5. It is not clear whether any of these advertisements are among the ones that were
shown in the studies from which the excerpts were taken, but the use of any survey stimulus
containing references to Applicant would violate “the well-settled principle that advertising
or use that features other marks or potential source-indicating material that are absent from
the application fails to demonstrate that the mark at issue, by itself, has acquired
distinctiveness.” Kohler, 125 USPQ2d at 1512. Acquired distinctiveness surveys “are
supposed to test only whether an applied-for mark is viewed, by itself, as a source indicator.”
Id. at 1511-12.
Serial No. 88055289
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Moreover, during prosecution Applicant described the studies as being conducted
in November 2012,27 and a study of consumer perception conducted so long before
Applicant’s claim of acquired distinctiveness has little, if any, probative value even if
it were properly done and supported. “[S]econdary meaning is a time -related concept:
it exists at a specific time, in a specific place, among a specific group of people who
recognize that specified matter indicates commercial origin of a specified type of
product or service from one unique commercial source.” Royal Crown, 127 USPQ2d
at 1049 (quoting 4A CALLMAN ON UNFAIR COMPETITION, TRADEMARKS AND
MONOPOLIES § 20.23 (4th ed. 2017)). “Therefore, a survey is only probative if it deals
with conditions at the appropriate time.” Id. (quotation omitted) (finding that an
acquired distinctiveness survey conducted more than five years before the close of
testimony before the Board had “questionable” probative value because it could “not
disclose contemporary public perception” of the involved term).
We disagree with Applicant that if this evidence is not “a sufficiently scientific
survey . . . the information is instructive nonetheless and should not be discounted in
its entirety.” 7 TTABVUE 4. We find that these pages, presented in isolation, have
no probative value on the issue of whether Applicant’s proposed mark has acquired
distinctiveness. See generally TMEP Section 1212.06(d) and cases cited therein
(discussing requirements for survey evidence); Kohler, 125 USPQ2d at 1508-09.

27 November 25, 2019 Request for Reconsideration at TSDR 1.
Serial No. 88055289
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b. Applicant’s Advertising Expenditures
Applicant also proffers the chart reproduced below, which its counsel describes as
setting forth “[m]arketing expenditures to promote goods bearing or sold under the
DOOR-IN-DOOR mark from 2013-2017.” 4 TTABVUE 6.28
29
On its face, the total figure of more than $18 million is a fairly large one. Upon closer
examination, however, Applicant’s advertising expenditures are not persuasive
evidence of acquired distinctiveness for several reasons.
First, they do not support Applicant’s grandiose claim of “persistent and
continuous use of a mark in various media for nearly a decade.” 7 TTABVUE 4. At
most, the chart covers only three years, and many of the expense categories have no

28 Applicant does not specify whether these expenditures are for the United States only.
Applicant also made of record what it describes as “[e]xamples of invoices for point of sale
displays purchases by Applicant to promote goods bearing or sold under the DOOR-IN-DOOR
mark.” 4 TTABVUE 6. These invoices bear dates in December 2013 and January and
February 2014. November 25, 2019 Request for Reconsideration at TSDR 9-21. Because no
supporting declaration was offered, we do not know whether these expenditures are included
within the 2013 expenditures for “In-Store Display” listed in the chart. The chart contains no
such entries for 2014.
29 November 25, 2019 Request for Reconsideration at TSDR 4.
Serial No. 88055289
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entries for individual or multiple years. The chart does not cover 2012, the year in
which Applicant claims use of the proposed mark began, lists very modest
expenditures in 2013 limited solely to in-store displays, which by definition were
exposed only to retail shoppers, and reflects no expenditures at all in 2014 and 2015.
Slightly more than 80% of the total expenditures were in 2017 alone. The
expenditures as a whole do not show the sort of sustained exposure of DOOR-IN-
DOOR necessary to cause that highly descriptive term to become Appl icant’s mark.
Second, as noted and shown above, Applicant’s advertising and promotional
materials make frequent use of Applicant’s house mark LG directly in front of, or in
very close proximity to, the proposed DOOR-IN-DOOR mark.30 Expenditures on such
advertising and promotion have little, if any, probative value on the issue of whether
DOOR-IN-DOOR alone has acquired distinctiveness. La. Fish Fry Prods., 116
USPQ2d at 1265 (expenditures on advertising “bearing LOUISIANA FISH FRY
PRODUCTS” found not to “establish that FISH FRY PRODUCTS had acquired
distinctiveness.”). In addition, more than half of the total expenditures have been on
television advertising, but the record is devoid of examples of such advertising, and
there is thus no evidence of how the proposed mark appears in such advertising, or
whether, unlike Applicant’s print advertising, its television advertising focuses on the
applied-for mark alone.

30 The same is true for many of the displays and descriptions of Applicant’s refrigerators on
the websites of resellers of the goods. May 23, 2019 Response to Office Action at TSDR 5, 7-
8, 10, 15, 18.
Serial No. 88055289
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Finally, because there is no declaration discussing the listed figures, we have no
sense of their significance in Applicant’s industry relative to other sellers of electric
refrigerators. Without such context, we cannot determine the impact of the reported
expenditures. Cf. Target Brands, Inc. v. Hughes, 86 USPQ2d 1676, 1681 (TTAB 2007)
(confidential sales figures over a 14-year period indicated that the applicant had
enjoyed a substantial degree of success in selling ULTIMATE POLO shirts, but the
Board found that it was difficult “to accurately gauge the level of this success in the
sun protective garment industry in the absence of additional information such as
applicant’s market share or how the ULTIMATE POLO product ranks in terms of
sales in the trade.”). We do not find Applicant’s marketing expenditures of $18 million
over essentially two years “standing alone and without any context in the trade” to
be “so impressive as to elevate [A]pplicant’s highly descriptive designation to the
status of a distinctive mark.” Id.
We find, on the basis of the record as a whole, that Applicant did not carry its
heavy burden of showing that its highly-descriptive proposed mark DOOR-IN-DOOR
for electric refrigerators has acquired distinctiveness.
Decision: The refusal to register is affirmed.