Power Play Int’l., Inc.

Trademark Trial and Appeal Board

Mar 26, 2003

No. 75431077 (T.T.A.B. Mar. 26, 2003)

Hearing: Mailed:
February 11, 2003 March 26, 2003
Paper No. 17
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Power Play International, Inc.
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Serial No. 75/431,077
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John K. McCulloch of Reising Ethington Learman & McCulloch
for Power Play International, Inc.
Shari L. Sheffield, Trademark Examining Attorney, Law
Office 109 (Ronald R. Sussman, Managing Attorney).
_______
Before Cissel, Hairston and Bucher, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Power Play International, Inc. seeks registration on
the Principal Register of the term MRS. HOCKEY as applied
to “men’s, women’s and children’s clothing, namely T-
shirts, sweatshirts, and caps,” in International Class 25.1
1 Application Serial No. 75/431,077 was filed on February 9,
1998, based upon applicant’s allegation of use in commerce since
at least as early as November 26, 1997. The application papers
stated that “[t]he term MRS. HOCKEY identifies a living person,
Colleen J. Howe, whose consent is of record.” Applicant has
voluntarily disclaimed the word “HOCKEY” apart from the mark as
shown. Applicant also claimed ownership of Reg. No. 1,890,150,
issued on April 18, 1995 for the term MR. HOCKEY, registered in
connection with charitable fundraising services.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75/431,077
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The Trademark Examining Attorney refused registration
pursuant to Sections 1, 2 and 45 of the Trademark Act of
1946 (as amended), 15 U.S.C. Sections 1051, 1052 and 1127,
because the proposed mark is ornamental as used on the
goods. (Examining Attorney’s brief page 1).
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs. On February 11, 2003, an oral hearing on this
matter was held before the Board.
We affirm the refusal to register.
The specimens of record in this use-based application
are photographs of a purple cap having the designation
“Mrs. Hockey” in contrasting white letters emblazoned
across the front of the cap, as shown below:
Serial No. 75/431,077
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In short, the Trademark Examining Attorney asserts
that this term, positioned as it is on this cap, is seen as
a message about the wearer. At oral argument, the
Trademark Examining Attorney analogized the applied-for
matter to similar designations one might find on T-Shirts
or on the front of caps, such as “Soccer Mom,” “Volleyball
Dad” or “Golf Widow.” In each instance, there appears to
be a message about the attachment (or detachment) of the
wearer to a particular sport or activity. Finally, she
notes correctly that there is no evidence in the record
that prospective purchasers view the designation MRS.
HOCKEY as a source indicator for applicant’s listed items
of clothing.
By contrast, applicant argues that the designation
MRS. HOCKEY is not ornamental because it lacks any design
features; that as a ratio of the overall height of the
raised, front portion of the cap, this wording is not
emblazoned in a prominent fashion; and, most importantly,
that “MRS. HOCKEY is the alter ego of a famous and
celebrated person…”
First, we begin our analysis by clarifying for
applicant that “ornamentation” is a term of art in federal
trademark law that is in no way limited to ornate styles of
Serial No. 75/431,077
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lettering. Rather, the Office’s determination of
ornamentation has to do with the manner in which the
alleged source-indicating matter is combined with the trade
dress of the goods or displayed on the goods and any
inherent or acquired significance the matter has.
In fact, an early Board case on ornamentation
introduced a hypothetical example of ornamental matter –
the enigmatic saying “Swallow Your Leader." Such a
message-laden expression (e.g., shown in all upper-case
letters on a hypothetical trademark application drawing
page and/or emblazoned across the front of an item of
clothing in all plain, block letters) is merely ornamental.
Such a slogan or expression, taken by itself, would not be
considered as an indication of the source of the clothing
on which it appears. See In re Olin Corp., 181 USPQ 182
(TTAB 1973).
The Trademark Examining Attorney herein points to
Board language from In re Astro-Gods, Inc., 223 USPQ 621
(TTAB 1984), a seminal case in this area of the law:
We agree with the Examining Attorney that
where, as here, an alleged mark serves as
part of the aesthetic ornamentation of
goods, the size, location, dominance, and
significance of the alleged mark as applied
to the goods are all factors which figure
prominently in the determination of whether
it also serves as an indication of origin.
Serial No. 75/431,077
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Astro-Gods, supra at 623 (emphasis supplied).
In Astro-Gods, as here, the designation sought to be
registered was not a recognized trademark of applicant at
the time when applicant first used it ornamentally.2 Nor
does the ornamental matter on the instant cap inherently
tell members of the purchasing public the secondary source
of the cap as would, for example, the name “George
Washington University,” for as discussed in Olin, consumers
across the country understand that the name of a well-known
university printed on a T-shirt or cap indicates
sponsorship or authorization by the named institution.
Moreover, in Astro-Gods, as here, there was no
indication in the record of acquired distinctiveness –
i.e., that the matter had been promoted in connection with
applicant’s items of apparel in such a manner and to such
2 By contrast: (1) the design element in Olin Corp., supra,
functioned as an indication of “secondary source” because this
matter had previously been registered by applicant for skis; (2)
the names “MORK & MINDY” were registrable for collateral products
such as decals given the popularity at the time of applicant's
television series of that name [See In re Paramount Pictures
Corporation, 213 USPQ 1111 (TTAB 1982)]; and (3) a stylized and
unique checkered flag design, already recognized as a source
indicator for applicant’s auto racing services, was also
registrable as an indicator of secondary source for collateral
goods like clothing and patches [See In re Watkins Glen
International, Inc., 227 USPQ 727 (TTAB 1985)].
Serial No. 75/431,077
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an extent as to create purchaser recognition of it as a
trademark.3
As pointed out by the Trademark Examining Attorney,
applicant has offered no evidence as to secondary source or
as to acquired distinctiveness. We certainly cannot reach
a contrary result herein based solely upon applicant’s
counsel’s unsupported argumentation as to the fame of the
designation MRS. HOCKEY as applied to applicant’s
president, Colleen J. Howe.4
Nor can we find a basis for registrability of
otherwise merely ornamental matter with applicant’s claim
of ownership of the MR. HOCKEY5 registration for charitable
3 See In re David Crystal, Inc. (Izod Ltd., assignee,
substituted), 132 USPQ 1 (CCPA 1961)[inadequate proof of acquired
distinctiveness of red and blue band design appearing on men’s
socks].
4 At oral argument, applicant’s counsel analogized this usage
to having ARNOLD PALMER, “THE KING,” TIGER WOODS or THE ROLLING
STONES (or even their “Tongue Logo”) emblazoned across a cap or
T-Shirt. However, while these analogies could well suggest a
successful approach to overcoming a merely ornamental refusal in
any of these hypothetical cases, this would in each case be a
fact-based determination requiring evidence of a type not present
in the current record.
5 Applicant’s counsel argues without any evidentiary basis
that Gordie Howe (“Mr. Hockey”) is recognized as the greatest
all-around hockey player in history and one of the world’s finest
athletes ever. Evidently, Gordie Howe played against other NHL
players over a period of six decades. When he retired from the
sport, he allegedly held more records than any team athlete in
history. We have no reason to doubt Mr. Howe’s extraordinary
talent, fame and allure, or that he continues to serve as a role
model, an unblemished sportsman, a hero to many and an ambassador
to generations of hockey fans and players alike. However, even
if all of this had been proven on this record (which it was not),
none of this is relevant to the question at hand.
Serial No. 75/431,077
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fundraising services. Even if it were clear that caps and
T-shirts are collateral goods for charitable fundraising
services, MR. HOCKEY is clearly a different designation
than is MRS. HOCKEY. Hence, inasmuch as this alleged
trademark is for a different term, applicant could rely on
neither the logic nor the evidence of secondary source or
of any acquired distinctiveness of MR. HOCKEY to overcome
the ornamentation refusal for MRS. HOCKEY.
Decision: The refusal to register is affirmed.