Rebecca Brough

Trademark Trial and Appeal Board

Jan 30, 2008

No. 78680981 (T.T.A.B. Jan. 30, 2008)

Mailed: January 30, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Rebecca Brough
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Serial No. 78680981
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Kenneth A. Linzer of Linzer & Associates, P.C. for Rebecca
Brough.

Robert Clark, Trademark Examining Attorney, Law Office 101
(Ronald R. Sussman, Managing Attorney).
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Before Zervas, Kuhlke and Taylor, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Rebecca Brough, applicant, seeks registration on the
Principal Register of the mark shown below for goods
identified as “clothing, headgear and footwear made of non-
animal products, namely footwear, sportswear, coats, sport
coats, jackets, rainwear, shorts, sweat shorts, sweatsuits,
sweat pants, vests, suits, tank tops, jeans, shirts, hats,
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78680981
2
gloves, socks, shoes, boots, slippers, sandals, caps,
headbands and belts” in International Class 25.1

Registration has been refused under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. §1052(e)(1), on the ground
that applicant’s mark is deceptively misdescriptive of its
goods, and Section 2(a) of the Trademark Act, 15 U.S.C.
§1052(a), on the ground that applicant’s mark is deceptive.
In addition, registration has been refused based on the
requirement to amend the identification of goods inasmuch
as “sportswear” is indefinite.
When the refusals were made final, applicant appealed
and briefs have been filed.2
As a preliminary matter, we note that applicant, in
its reply brief, amended its identification of goods by
deleting the word “sportswear” in response to the examining
attorney’s requirement. Accordingly, the requirement for

1 Application Serial No. 78680981, filed July 28, 2005, alleging
first use anywhere and use in commerce on May 1, 2003, under
Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a).

2 The exhibits attached to applicant’s reply brief are untimely
and have not been considered. Trademark Rule 2.142(d). To the
extent applicant was attempting to request remand for entry of an
amendment (Exh. Z), this should have been done as a separate
filing with a showing of good cause. In any event, the letter
specifically states that applicant “is not requesting a formal
amendment at this time.”
Serial No. 78680981
3
an acceptable identification of goods is deemed satisfied,
and the appeal on this issue is moot. The remaining
refusals are considered based on the goods as amended.
Deceptive Misdescriptiveness
The test for deceptive misdescriptiveness has two
parts. First it must be determined if the matter sought to
be registered misdescribes the goods. If so, then it must
be ascertained if it is also deceptive, that is, if anyone
is likely to believe the misrepresentation. In re Quady
Winery Inc., 221 USPQ 1213, 1214 (TTAB 1984). See also In
re Phillips-Van Heusen Corp., 63 USPQ2d 1047 (TTAB 2002).
The examining attorney provided the following
dictionary definition of MINK: “2. a. The soft, thick,
lustrous fur of this animal. b. A coat, stole or hat made
of the fur of this animal.” The American Heritage
Dictionary of the English Language (3d ed. 1992). In
addition, the examining attorney submitted webpage
printouts showing various mink clothing items.
Applicant has indicated and the identification of
goods specifies that the goods do not contain animal
products which would include mink. Applicant does not
dispute the meaning of mink or that mink is used generally
in various clothing items, including, coats, shoes,
slippers, gloves, hats, etc. Applicant focuses her
Serial No. 78680981
4
argument on the manner in which she uses the mark. For
example, one of her advertisements reads:
Rebecca Brough is the founder and designer of
MINK shoes. Rebecca has maintained a lifelong
interest in the preservation, protection and
safeguarding of the environment ... MINK is
devoted to ... providing cruelty-free fashionable
footwear ... Research and development of an
exceptional non-leather shoe has taken Rebecca
four years. Rebecca worked to develop a new way
of manufacturing shoes with non-animal materials.

See Response (August 18, 2006) Exh. A.
Applicant further argues that her customers:
... would never imagine that MINK shoes are
manufactured using mink-fur, or any animal-
materials, in light of the above ... [and] all
the publicity which mink shoes has received, and
there has been quite a lot, focuses on the
animal-free nature of MINK shoes. So, the
likelihood that a purchaser would be attracted to
the product and then deceived about the materials
used in the shoe products’ actual construction
are practically zero.

Br. pp. 9-10.

In noting that applicant is listed on PETA’s
(People for the Ethical Treatment of Animals)
“Shopping Guide to Compassionate Clothing,” applicant
concludes that “use of the animal’s name for the shoe
is simply an off-the-wall, out-of-the-box, wildly
creative, animal-friendly design.”3 Br. p. 12.

3 We note that applicant’s arguments only pertain to her shoe
products, but the application contains a list of several clothing
items with an accompanying allegation of use that pertains to
each of the items in the list. See Medinol Ltd. v. Neuro Vasx
Serial No. 78680981
5
There is no issue that MINK, an animal product,
misdescribes applicant’s various clothing items made of
non-animal products. Moreover, the design element of the
crown does not detract from this meaning or serve to
indicate that the goods do not include mink.
With regard to the next inquiry, whether consumers
would believe the misrepresentation, mink is a generic term
for coats and hats and printouts from several websites in
the record show coats, hats, slippers and boots made of or
consisting of mink. See, e.g., valentino.com; ebay.com;
and newyorkmetro.com. Consumers would certainly believe
coats, hats, slippers, and boots contain mink.
Applicant’s arguments that focus on her actual use of
the proposed mark are not relevant to our inquiry. We must
make our determination based on the applied-for mark, which
consists only of the stylized word MINK and a crown design,
and the goods as identified. Thus, we must consider any
possible marketing or type of goods encompassed within the
parameters of the application. As the examining attorney
noted, applicant could use the term MINK in connection with
faux fur without any disclaimer or explanation; the

Inc., 67 USPQ2d 1205 (TTAB 2003). The refusals have been issued
against all of the goods in the application and we make our
determination based on the various goods listed in the
application.

Serial No. 78680981
6
application as presented would provide trademark protection
for any use of the term MINK with the non-animal clothing
items listed in the identification of goods. Put simply,
applicant’s explanations and intentions are not part of the
application.
In view of the above, applicant’s mark is deceptively
misdescriptive of its goods.
Deceptiveness
The test for determining whether a mark is deceptive
under Section 2(a) has been stated by the Court of Appeals
for the Federal Circuit as: 1) is the term misdescriptive
of the character, quality, function, composition or use of
the goods; 2) are prospective purchasers likely to believe
that the misdescription actually describes the goods; and
3) is the misdescription likely to affect the decision to
purchase. In re Budge Manufacturing Co., Inc., 857 F.2d
773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988).
The first two factors have already been established
in connection with the refusal under Section 2(e)(1)
discussed above. What remains is to determine whether the
misdescription is likely to affect the decision to
purchase.
The examining attorney submitted printouts from
several websites to show that fur in general and mink in
Serial No. 78680981
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particular is a desirable material for applicant’s goods,
including coats, hats, slippers and boots. See, e.g.,
collections-corner.com (“Men are warming up to fur. Long
the choice of well-heeled women, men now seek the same
status ... Fur is no longer just for warmth on the coldest
of days, fur has moved into the hot must have fashion
category and is worn from day to night and across all
seasons”); and madisonavemall.com (“Fur accessories are the
hottest items, to the runways. Sable, chinchilla, mink,
fox, fur muffs, fur scarves, fur headbands, fur handbags
and fur evening bags, all the latest designer fur
accessories are for sale ...”)
As shown by the evidence of record, mink is perceived
as a desirable component of various clothing items. This
evidence is sufficient to establish that mink is perceived
by prospective purchasers as a luxury item that imbues the
owner with status and would materially affect the
purchasing decision. Thus, we conclude that the mark MINK
is deceptive in connection with the identified goods.
Decision: The refusals to register under
Sections 2(e)(1) and 2(a) of the Trademark Act are
affirmed.