Mirama Enterprises, Inc.

Trademark Trial and Appeal Board

Aug 7, 2007

No. 76637648 (T.T.A.B. Aug. 7, 2007)

Mailed:
August 7, 2007
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UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Mirama Enterprises, Inc.
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Serial No. 76637648
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Mirama Enterprises, Inc. Pro Se.

Stephen Aquila, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______

Before Drost, Zervas and Walsh, Administrative Trademark
Judges.

Opinion by Walsh, Administrative Trademark Judge:

On May 2, 2005, Mirama Enterprises, Inc. (applicant)
applied to register the mark CRUSH & BLEND in standard-
character form on the Principal Register for goods now
identified as “electric food blenders, electric food
processors, and electric food blenders for making
smoothies” in International Class 7. Applicant asserts a
bona fide intention to use the mark in commerce under
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser No. 76637648
2
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), as
the basis for the application.
The Examining Attorney has finally refused
registration on the grounds: (1) that the mark merely
describes the goods under Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1); and (2) that applicant has
failed to respond to the Examining Attorney’s requirement
under 37 C.F.R. § 2.61(b) for information regarding
applicant’s goods.1
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs. We affirm the
refusal on both grounds.
A term is merely descriptive of goods within the
meaning of Section 2(e)(1) if it forthwith conveys an
immediate idea of an ingredient, quality, characteristic,
feature, function, purpose or use of the goods. See, e.g.,
In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.
1987); and In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215, 217-18 (CCPA 1978). A term need not immediately
convey an idea of each and every specific feature of the
applicant’s goods in order to be considered merely
descriptive; it is enough that the term describes one

1 A different Examining Attorney acted on this application prior
to this appeal.
Ser No. 76637648
3
significant attribute or function of the goods. See In re
H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB 1982); and In re
MBAssociates, 180 USPQ 338, 339 (TTAB 1973).
Whether a term is merely descriptive is determined not
in the abstract, but in relation to the goods identified in
the application, and the possible significance that the
term would have to the average purchaser of the goods
because of the manner of use or intended use. In re Polo
International Inc., 51 USPQ2d 1061, 1062 (TTAB 1999); and
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
When two or more merely descriptive terms are
combined, we must determine whether the combination of
terms evokes a new and unique commercial impression. If
each component retains its merely descriptive significance
in relation to the goods, then the resulting combination is
also merely descriptive. See, e.g., In re Tower Tech,
Inc., 64 USPQ2d 1314, 1317 (TTAB 2002)(SMARTTOWER merely
descriptive of commercial and industrial cooling towers).
I. The Descriptiveness Refusal
Applicant argues that CRUSH & BLEND is not merely
descriptive of its goods because, “CRUSH & BLEND are not
the normal way of referring to blenders and food
processors.” Applicant’s Brief at 1. Applicant also
argues that CRUSH & BLEND have several meanings, citing as
Ser No. 76637648
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an example, “One can say he picked a tie that blended with
the jacket.” Id.
We do not find applicant’s arguments persuasive. In
fact, during the prosecution of the application, applicant
stated, “We would like to point out that the marks (sic)
Crush and Blend are descriptive of only one of the goods
(blenders). The application covers also other product,
food processors (sic).” Applicant’s response, dated April
7, 2006.
Here, applicant has effectively conceded that the mark
merely describes one of the products in the identification
of goods. We must affirm a refusal if the mark is merely
descriptive of any of the goods in the identification of
goods. In re Canron, Inc., 219 USPQ 820, 821 (TTAB 1983).
Furthermore, the Examining Attorney has provided
evidence which shows that CRUSH & BLEND is merely
descriptive, not only of blenders, but also of food
processors. In both instances, the mark refers to two
features or functions of the goods. Both blenders and food
processors crush and/or blend ingredients.
For example, an item from the philips.com web page
entitled “Compare Selected Products” states, “Food
processors are real hard workers… All kinds of foods can
be chopped and blended by food processors… Food processors
Ser No. 76637648
5
can do lots of things. They can crush ice, knead dough,
cut up herbs.” Examining Attorney’s Office Action No. 2,
Attachment. The Spokane Spokesman-Review, dated June 28,
2006, includes a recipe which states, “Put all the
ingredients in an electric blender or food processor and
blend until the ice is crushed and the liquid is frothy.”
Examining Attorney’s Final Act, Attachment. Another
article from the Orlando Sentinel, dated April 11, 2006,
states, “Use a food processor to crush cornflakes to a fine
crumb coating.” Id. Another article from Consumer
Reports, dated December 2005, states, “Blenders excel at
crushing ice and fruit for smoothies and such.” Id.
Lastly, an excerpt from the inspiredliving.com web page
discusses the Vita-Mix 5000 blender stating, “The powerful
motor enables Vita-Mix to chop six cups of ice cubes in
just a few seconds. Vegetables, fruits, hard ice cubes,
blend fast and completely, with no residue. Crushes a
half-gallon of ice cream in just 3 seconds.” Id.
This evidence establishes that both blenders and food
processors function to “crush” and “blend” ingredients.
The identification of goods itself, which identifies two of
the three items of goods as “blenders,” lends further
confirmation that “BLEND” is merely descriptive of the
identified goods.
Ser No. 76637648
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The fact that the terms which make up the mark may
have a different meaning in a different context, for
example in the clothing realm, is not relevant here. We
must determine whether the terms in the mark are merely
descriptive, not in the abstract, but in relation to the
goods identified in this application. In re Bright-Crest,
Ltd., 204 USPQ at 593.
Furthermore, we find nothing in the combination of the
terms “CRUSH” and “BLEND” which is new and unique. The
combination is the mere sum of the parts which merely
describes two functions of the goods. In re Tower Tech,
Inc., 64 USPQ2d at 1317.
Finally, based on the evidence of record we conclude
that CRUSH & BLEND is merely descriptive of “electric food
blenders, electric food processors, and electric food
blenders for making smoothies.”
II. The Requirement for Information
In the second office action the Examining Attorney
formally required applicant to submit “… samples of
advertisements or promotional materials for the goods or
services, or if unavailable, for goods or services of the
same type.” The requirement further stated, “If such
materials on the specific goods described in the
application are not available, the applicant must describe
Ser No. 76637648
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the nature, purpose, prospective purchasers, and channels
of trade of the goods identified in the application.”
Examining Attorney’s Office Action No. 2. The Examining
Attorney explained further that failure to comply with this
requirement was grounds for refusal. Id.
Applicant did not respond to this requirement in its
response to this Office Action 2. The Examining Attorney
made the requirement final in the subsequent Final Office
Action. Applicant has not addressed this requirement in
its brief. In the absence of any response or explanation
related to this requirement, we affirm the refusal on the
additional ground that applicant failed to comply with the
requirement. See In re DTI Partnership, L.L.P., 67 USPQ2d
1699, 1701 (TTAB 2003).
Decision: The refusal to register on the ground that
the mark is merely descriptive under Trademark Act Section
2(e)(1) and on the ground that applicant failed to comply
with the Examining Attorney’s requirement under 37 C.F.R.
§ 2.61(b) is affirmed.