Ocean Apparel, Inc.

Trademark Trial and Appeal Board

Jan 5, 2001

No. 75348636 (T.T.A.B. Jan. 5, 2001)

1/5/01
Paper No. 16
TEH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ocean Apparel, Inc.
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Serial No. 75/348,636
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C. Douglas McDonald of Carlton, Fields, Ward, Emmanuel, Smith &
Cutler, P.A. for Ocean Apparel, Inc.
Daniel P. Vavonese, Trademark Examining Attorney, Law Office 109
(Ronald R. Sussman, Managing Attorney).
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Before Wendel, Holtzman and Rogers, Administrative Trademark
Judges.
Opinion by Holtzman, Administrative Trademark Judge:
An application has been filed by Ocean Apparel, Inc. to
register NAVY + GREEN as a mark for goods which were subsequently
amended to "clothing, namely pants and shorts."1
1 Serial No. 75/348,636; filed August 26, 1997 on the Principal
Register alleging a bona fide intention to use the mark in commerce.
On November 19, 1998, applicant filed an amendment to allege use
asserting dates of first use and first use in commerce on July 15,
1998.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/348,636
2
Registration has been finally refused under Section 2(e)(1)
of the Trademark Act on the ground that applicant's mark is
merely descriptive of applicant's goods.
Applicant has appealed. Applicant and the Examining
Attorney filed briefs, and applicant filed a reply brief. An
oral hearing was not requested.
Applicant's reply brief was accompanied by a request to
amend its identification of goods from "clothing, namely pants,
shorts, jeans, shirts, jackets, blouses, knit shirts, swimwear,
sweaters, skirts" to the present identification, "clothing,
namely pants and shorts." The Trademark Examining Attorney
approved the amendment but maintained the refusal to register.
Applicant's reason for the amendment will be addressed later in
this decision.
A term is merely descriptive within the meaning of 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).
We agree with the Examining Attorney that the term NAVY +
GREEN, when used in connection with clothing directly conveys
information about their color, a significant characteristic of
the goods. The Examining Attorney has submitted an entry from
The Pantone Book of Color 79 (1990) identifying "navy" as a
Ser No. 75/348,636
3
particular color and a dictionary listing defining "navy" as the
color "navy blue." The Examining Attorney has also submitted
numerous excerpts of articles from the NEXIS database showing
that "navy" and "green," either alone or in combination, are not
only commonly used, but are traditional and even popular colors
for everyday attire. It is also clear, based on the dictionary
references submitted by the Examining Attorney,2 that the symbol
"+" would be viewed in the context of this mark as a conjunctive
variation of the word "and" so that the mark would be understood
by purchasers of the identified goods to be the equivalent of
"NAVY AND GREEN."
Applicant does not dispute that color is a significant
attribute of clothing or that each word in the mark identifies a
particular color. Applicant argues instead that the words "navy"
and "green" have a variety of other meanings which would not be
descriptive of its goods. Relying on In re Colonial stores
Incorporated, 394 F.2d 549, 157 USPQ 382 (CCPA 1968), applicant
argues that its mark, like SUGAR & SPICE in that case, is not
"merely" descriptive because as a "composite" the mark
"conjure[s] up several images in the consuming public's mind."
(Applicant's brief p.5). Applicant points out that the word
2 The Board may properly take judicial notice of dictionary
definitions. See University of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
Ser No. 75/348,636
4
"navy" has a "primary" meaning referring to "all of a nation's
warships" and that other definitions of the word "green" include
"leafy plants" and "not mature or ripe."
It is true that the words "navy" and "green" have other non-
descriptive meanings. However, the only plausible meaning of
these words in relation to clothing is color. 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 registration is sought, the context in which
the term is used, and the possible significance that the term is
likely to have to the average purchaser as he encounters the
goods or services in the marketplace. See In re Engineering
Systems Corp., 2 USPQ2d 1075 (TTAB 1986). Because color is such
a significant aspect of clothing, purchasers will naturally
associate the words "navy" and "green" with color. The display
of the mark on some of applicant's hangtags with the very navy
and green color combination described in the mark reinforces this
association.
In this regard, applicant's reliance on In re Colonial
Stores Incorporated, supra, is misplaced. Unlike the mark SUGAR
& SPICE in that case, by combining "navy" with "green," applicant
has not created a unitary, nondescriptive term. If anything, the
combination of these words reinforces the descriptive meaning of
each individual word. It would not be reasonable to assume that
Ser No. 75/348,636
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purchasers would associate the word "green" in this mark with
meanings other than color such as "leafy plants" or "immaturity"
when "green" is used in combination with the word "navy," or that
the word "navy" would evoke the impression of a fleet of warships
when used in conjunction with the word "green."
As a final point, we note applicant's argument that the mark
is not descriptive "since [in view of applicant's amendment to
limit its goods to "pants and shorts"] no item of Applicant's
goods contains the two colors 'navy and green'...."3 (Applicant's
reply brief, p.2). This argument is not persuasive. The
deletion of certain items of clothing from the identification of
goods does not make the mark any less descriptive. There is no
restriction in the identification of goods which would limit the
goods to clothing which is not navy and green in color. In the
absence of any such restriction, it is presumed that the clothing
3 Applicant stated in its main brief (prior to the amendment) that
"some" of its clothing "contain[ed] the color navy blue and the color
green." (Applicant's brief, p.5). This statement as well as the
statement in the above text also appear in two untimely declarations of
applicant's President, Murray Deutsch, one of which was submitted with
applicant's main brief and the other with its reply brief. In any
event, as indicated above, these statements, even if true, would not
change the decision herein. We also note Mr. Deutsch's statement in
his second declaration that NAVY + GREEN "[was] never intended to be
descriptive of any characteristic of the [clothing]." Suffice it to
say that applicant's intentions with regard to the mark are not
determinative.
Ser No. 75/348,636
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may or may not appear in either or both of those colors.4 See,
e.g., In re Associated Theatre Clubs Co., 9 USPQ2d 1660 (TTAB
1988).
In view of the foregoing, we find that NAVY + GREEN when
used in connection with applicant's goods, immediately describes,
without any degree of thought or imagination, a significant
characteristic of those goods.
Decision: The refusal to register is affirmed.
4 Moreover, a restriction of this nature could raise a question as to
whether the mark is deceptively misdescriptive of the goods under
Section 2(e)(1) of the Trademark Act.