Sarah Marie Duncan

Trademark Trial and Appeal Board

Feb 3, 2021

86923714 (T.T.A.B. Feb. 3, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 3, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Sarah Marie Duncan
d/b/a Loved by Hannah and Eli, Inc.
_____

Serial No. 86923714
_____

Paul W. Reidl of Law Office of Paul W. Reidl,
for Sarah Marie Duncan d/b/a Loved by Hannah and Eli, Inc.

Steven W. Ferrell Jr., Trademark Examining Attorney, Law Office 121,
Richard White, Managing Attorney.
_____

Before Kuhlke, Dunn and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Sarah Marie Duncan d/b/a Loved by Hannah and Eli, Inc. (“Applicant”) seeks
registration on the Principal Register of the proposed mark MAMA BEAR (in
standard characters) for (as amended): “Shirts; Hooded sweat shirts; Knit shirts;
Long-sleeved shirts; Polo shirts; Short-sleeved or long-sleeved t-shirts; Sleep shirts;
Sweat shirts; T-shirts; Tee shirts; none of the foregoing intended for babies or
Serial No. 86923714
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children” in International Class 25.1 Below are the specimens of use filed with the
application:

The Examining Attorney refused registration of Applicant’s proposed mark under
Trademark Act Sections 1, 2 and 45, 15 U.S.C. §§ 1051, 1052 and 1127, on the ground
that it fails to function as a trademark to indicate the source of Applicant’s goods and
to identify and distinguish them from the goods of others.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. The appeal is fully briefed. We affirm the
refusal to register.
I. Legal Background – Failure to Function
“The Trademark Act is not an act to register words but to register trademarks.
Before there can be registrability, there must be a trademark … and, unless words
have been so used, they cannot qualify for registration.” In re Std. Oil Co., 275 F.2d

1 Application Serial No. 86923714 was filed on February 29, 2016, under Trademark Act
Section 1(a), 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere at least
as early as August 26, 2013, and first use in commerce since at least as early as September
14, 2013.
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945,125 USPQ 227, 229(CCPA 1960); In re Vox Populi Registry Ltd., 2020 USPQ2d
11289, *4 (TTAB 2020). Trademark Act Section 45 defines a “trademark” as “any
word, name, symbol, or device, or any combination thereof ... used by a person ... to
identify and distinguish his or her goods … from those manufactured or sold by others
and to indicate the source of the goods, even if that source is unknown.” 15 U.S.C. §
1127; see also In re Bose Corp., 46 F.2d 893, 192 USPQ 213, 215(CCPA 1976) (“[T]he
classic function of a trademark is to point out distinctively the origin of the goods to
which it is attached.”). “Matter that does not operate to indicate the source or origin
of the identified goods or services and distinguish them from those of others does not
meet the statutory definition of a trademark and may not be registered….” In re AC
Webconnecting Holding B.V., 2020 USPQ2d 11048, *2-3 (TTAB 2020). Therefore, “a
proposed trademark is registrable only if it functions as an identifier of the source of
the applicant’s goods or services.” In re The Ride, LLC, 2020 USPQ2d 39644, *5
(TTAB 2020).
We consider whether Applicant’s proposed mark, MAMA BEAR, functions as a
trademark based on whether the relevant public, i.e. purchasers or potential
purchasers of the identified clothing goods, would perceive MAMA BEAR as
identifying the source or origin of such goods. See e.g. In re Team Jesus LLC, 2020
USPQ2d 11489, at *2 (TTAB 2020) (“We must assess whether Applicant’s proposed
mark … functions as a mark based on whether the relevant public … would perceive
TEAM JESUS as identifying the source or origin of … [Applicant’s] goods and
services.”); In re Texas With Love, LLC, 2020 USPQ2d 11290, at *2 (TTAB 2020); In
Serial No. 86923714
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re TracFone Wireless, Inc., 2019 USPQ2d 222983, at *1-2 (TTAB 2019); In re
Aerospace Optics, Inc., 78 USPQ2d 1861, 1862 (TTAB 2006).
In this case, because there are no limitations to the channels of trade, nor on the
classes of consumers (except to exclude babies and children), the relevant consuming
public comprises all potential purchasers of the identified goods intended to be worn
by adults. See In re Yarnell Ice Cream, LLC, 2019 USPQ2d 265039, at *5 (TTAB 2019)
(“[T]the identification does not represent that the goods will be marketed ... to any
particular class of customers…. Accordingly …, we must assess the registrability of
Applicant’s proposed mark for … [goods] consumed by members of the general
public.”) (internal quotations omitted).
Matter that is widely used to convey ordinary or familiar concepts or sentiments,
or similar informational messages that are in common use, would not be perceived as
indicating source and is not registrable as a mark. See In re Mayweather Promotions,
LLC, 2020 USPQ2d 11298, at *1 (TTAB 2020) (addressing the proposed mark PAST
PRESENT FUTURE and noting that “[w]idely used commonplace messages are those
that merely convey ordinary, familiar concepts or sentiments and will be understood
as conveying the ordinary concept or sentiment normally associated with them,
rather than serving any source-indicating function”); In re Texas With Love, 2020
USPQ2d 11290, at *2 (holding that proposed mark TEXAS LOVE “does not perform
the desired trademark function and does not fall within the [Trademark] Act’s
definition of a mark, including because it would be perceived not as a source
identifier, but instead as a widely-used phrase that merely conveys a well-recognized
Serial No. 86923714
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and commonly expressed concept or sentiment”); see also D.C. One Wholesaler, Inc. v.
Chien, 120 USPQ2d 1710, 1716 (TTAB 2016) (I ♥ DC was found not to function as a
mark for clothing items because it would be perceived merely as an expression of
enthusiasm for the city).
For the failure-to-function analysis, we consider all the evidence of record,
including Applicant’s use and third-party uses of the term, to determine how
consumers are likely to perceive the term as used in general parlance. See, e.g., In re
Team Jesus, 2020 USPQ2d 11489, at *5-6 (Board’s review of “[t]he evidence as a
whole” consisted of Applicant’s specimen of use as well as third-party uses); In re Wal-
Mart Stores, Inc., 129 USPQ2d 1148, 1150 (TTAB 2019) (“[W]e look to the specimens
and other evidence of record showing the phrase used in the marketplace.”); In re
D.C. One Wholesaler, 120 USPQ2d at 1716 (considering third-party use evidence as
well as the applicant’s specimens and other examples of use); In re Eagle Crest,
Inc., 96 USPQ2d 1227, 1230 (TTAB 2010) (affirming informational refusal of ONCE
A MARINE, ALWAYS A MARINE where third-party evidence showed widespread
use of the phrase and use on “applicant’s specimens as well as its other materials
would likely reinforce the perception” of the proposed mark as informational in the
sense of expressing support, admiration or affiliation with the Marines). See generally
TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1202.04(b) (Oct. 2018)
(listing various sources of evidence “showing the applicant’s manner of use and the
manner of use by third parties.”).
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II. Evidentiary Record
The evidence made of record by Applicant and the Examining Attorney, to which
we now turn, consists of dictionary definitions, uses of MAMA BEAR in literature,
Applicant’s specimens of use (shown above) and her other uses, third-party use of the
term on clothing, and registrations issued to Applicant and third parties containing
the term.
A. Dictionary Definitions
The record contains the following definitions:
 MAMA BEAR – (informal noun) “a female bear currently rearing one or more
cubs”; (slang) “a woman, especially a mother, who is extremely protective of a
child or children” (WIKTIONARY).2
 MAMA BEAR – “a mom who can be cuddly and lovable but also has a ferocious
side when it’s necessary to protect her cubs. [She] can be [a] biological mom, or
the head of a group.” A “tough, aggressive, and protective mother. Often going
to extreme lengths to protect her child, usually her son, and herself.” (URBAN
DICTIONARY).3
 MAMA BEAR – (adjective) “characteristic of protective maternal behavior”;
(noun) “a female bear currently rearing one or more cubs”; (slang) “a woman,
especially a mother, who is extremely protective of a child or children” (YOUR
DICTIONARY).4

2 WIKTIONARY definitions of MAMA BEAR submitted with the Office Action Response of
September 21, 2018 at TSDR 107-108, and the Office Action of May 10, 2019 at TSDR 11-12.
Page references herein to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents
contained in the TSDR database are to the downloadable .pdf versions of the documents in
the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d
1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal refer to the Board’s
TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and
after this designation are the page references, if applicable.
3 URBAN DICTIONARY definitions of MAMA BEAR submitted with the Office Action of May
10, 2019 at TSDR 63-64.
4 YOUR DICTIONARY definitions of MAMA BEAR submitted with Denial of Request for
Reconsideration of July 1, 2020 at TSDR 1-2.
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So, literally, MAMA BEAR connotes a female bear rearing a bear cub or bear cubs.
The slang definition of the term refers to a woman who is extremely protective of her
child or children.
B. References in Literature
References to MAMA BEAR in literature also were submitted during prosecution
of the Application:
 Applicant refers us to the 19th-century fairy tale, THE STORY OF GOLDILOCKS
AND THE THREE BEARS” (relevant portions produced below):
Once upon a time, there was a little girl named Goldilocks. …
“Someone’s been eating my porridge,” said the Mama bear. …
“Someone’s been sitting in my chair,” said the Mama bear. …
“Someone’s been sleeping in my bed, too” said the Mama bear. …5
The Goldilocks fairy tale picks up, in an anthropomorphic writing style, on the
literal connotation of a MAMA BEAR as a female bear rearing her cub.
The Examining Attorney refers us to other uses of MAMA BEAR in literature:
o “The Problem with ‘Mama Bear’ Syndrome”, PARENTING magazine
(discussing the mom as a “mighty ursine protector” of her children).6
o “How Embracing Mama Bear Energy has Changed My Life”, GRACE AND
MAGIC blog (discussing “mama bear energy” and defining a “mama bear” as
“an incredible inner strength and sense of courage, often previously
unbeknownst to the subject before having children, unleashed when any
child, not necessarily his/her own, is considered to be at risk of injury or
harm”).7
o “The Mama Bear Instinct”, A MOTHER FAR FROM HOME blog (written by a
mother discussing the “clear thought” that she would “do absolutely

5 THE STORY OF GOLDILOCKS AND THE THREE BEARS submitted with the Office Action
Response of September 21, 2018 at TSDR 104-106.
6 Portion of PARENTING magazine book, submitted with the Office Action of May 10, 2019 at
TSDR 69-72.
7 Portion of GRACE AND MAGIC blog, Id. at 73-80.
Serial No. 86923714
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anything for the good of [her] children” and that the “mama bear instinct”
“says to run over anyone or anything in the path to the cub’s safety”).8
o “The True Meaning of a Mama Bear”, THE LIFE OF A MAMA BEAR blog
(discussing that “a true mama bear doesn’t just watch out for her cubs, but
for everyone that she truly loves”).9
o “What is the Mama Bear Effect?”, THE MAMA BEAR EFFECT blog (discussing
and the “concept of a mama bear” and stating that “our focus is protecting
an innocent child, whether it’s our own or someone else’s, from danger” and
“the claws come out and we go after whatever is threatening that child” and
defining a “mama bear” as “an incredible inner strength/rage and sense of
courage, often previously unbeknownst to the subject before having
children, unleashed when any child, not necessarily his/her own, is
considered to be at risk of injury or harm” and “any person who sees a child
in pain, feels their pain, and is willing to go above and beyond to protect the
children of this world”).10
o Book titled STFU PARENTS by Blair Koenig (discussing the term “Mama
Bear” as “used for ages but became popularized when Sarah Palin talked
about mama grizzlies protecting their cubs by attacking people who pose a
threat. Since then, women have used ‘Don’t mess with the mama bear!’ as
an excuse to do everything from gossiping to hair pulling to face beating in
the unfortunate instance that another adult or child looks at her ‘cub’ [child]
the wrong way.”).11
The discussion of MAMA BEAR in the literature picks up on the slang definition
of the term as referring to an extremely protective woman over her child or children.
C. Applicant’s Uses of MAMA BEAR
In addition to her specimens of use, Applicant made of record other examples of
her use of MAMA BEAR, on her merchandise and on her website:12

8 Portion of A MOTHER FAR FROM HOME blog, Id. at 81-89.
9 Portion of THE LIFE OF A MAMA BEAR blog, Id. at 90-92.
10 Portion of THE MAMA BEAR EFFECT blog, Id. at 93-95.
11 Portion of book STFU PARENTS, Id. at 96-98.
12 Examples of Applicant’s use of MAMA BEAR, submitted with the Office Action Response
of September 21, 2018 at TSDR 20, 21, 27, 28.
Serial No. 86923714
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Serial No. 86923714
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D. Third-Party Uses of MAMA BEAR on Clothing
Applicant and the Examining Attorney both submitted into evidence numerous
examples of third-party uses of MAMA BEAR emblazoned in large letters on the front
of clothing, particularly t-shirts, long-sleeved shirts, and sweatshirts, as well as other
personal items such as jewelry, cups, bags and hats, at the websites of: Target,
Walmart, Life is Good, Palmetto Moon, The Belmont Store, Burlington, Bealls, Etsy,
Fairy Season, The Bee & the Fox, Redbubble, Bass Pro Shops, Six Eleven, Ali
Express, The UCA (University of Central Arkansas) Bookstore, Brown (University)
Bookstore, Bear Basics (University of California at Berkeley), Belle Lilly,13 Amazon,

13 Third-party uses submitted with Office Action of May 10, 2019 at TSDR 13-62, 99-202.
Serial No. 86923714
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Williams-Sonoma, Awesomethreadz, A Pea in the Pod and Expression Tees.14 Several
of the clothing examples shown arguably were unisex. Where human models were
pictured wearing the merchandise, the vast majority were women or pregnant
women. Representative examples of these third-party uses follow below:

Walmart

Burlington

Bealls

Fairy Season

Target

Bass Pro Shops

Awesomethreadz

Etsy

Ali Express

The Bee & the Fox

14 Third-party uses submitted with Office Action Response of November 8, 2019 at TSDR
14-23 and 46-49.
Serial No. 86923714
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Amazon Expression Tees

Walmart

Redbubble
Serial No. 86923714
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E. MAMA BEAR U.S. Registrations issued to Applicant and Others
Throughout the course of prosecution, Applicant and the Examining Attorney
made of record filed applications and issued registrations for marks comprising or
including the term “MAMA BEAR”. We do not consider any of the applications that
did not issue as registrations. Third-party applications are evidence only of the fact
that they have been filed, In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1270 n.8
(TTAB 2009), and have no other probative value, Interpayment Services Ltd. v.
Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003). Abandoned applications
have “‘no probative value other than as evidence that the applications [were] filed.’”
Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1403 n.4 (TTAB
2010) (quoting In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB
2002)).
We also do not consider any of the registrations that have expired or have been
cancelled. A cancelled registration is not evidence of any existing rights in the mark.
See Action Temp. Servs. v. Labor Force, 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed.
Cir. 1989). An expired or cancelled registration is evidence of nothing but the fact
that it once issued. Sunnen Prods. Co. v. Sunex Int’l Inc., 1 USPQ2d 1744, 1747 (TTAB
1987).
The registrations issued by the USPTO are as follows (all of which registered on
the Principal Register and none of which include a disclaimer of “MAMA BEAR”):15

15 Response to Office Action of September 21, 2018 at TSDR 74-81, 86-99; Response to Office
Action of November 8, 2019 at TSDR 64-65, 76-87, 99-100; Response to Office Action of June
11, 2020 at TSDR 9-10.
Serial No. 86923714
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Mark Reg. No. Goods/Services Owner
MAMA BEAR 5395412 Providing personal support services,
namely, companionship and
emotional support for individuals that
have suffered traumatic life events …
Cl. 45
Mama Bear
Life Coach,
LLC
MAMA BEAR 5329819 Small arms ammunition, Cl. 13 Velocity
Manufacturing
Company LLC
MAMABEAR 5313636 Day planners; blank lesson plan
books; educational publications,
namely, educational learning cards,
flash cards, activity cards, workbooks,
textbooks, … Cl. 16; Providing on-line
training seminars in the field of
dyslexia, parenting, mom self-care, …
Cl. 41
Project
Dyslexia, LLC
MAMA BEAR
CANDLES
5221640 Candles, Cl. 4; On-line retail store
services featuring candles; Cl. 35
Moonbase3
LLC

MAMA BEAR
PORTFOLIO
5049521 Investment advice; Providing
information, commentary and advice
in the field of finance, financial
investments and financial valuations,
Cl. 36
Publica Press
LLC
MAMA BEAR
STUDIOS
5004608 Entertainment media production
services for motion pictures, television
and Internet; Entertainment services
in the nature of development,
creation, production and post-
production services of multimedia
entertainment content …, Cl. 41
Fancy Rhino
Pictures, LLC
MAMA BEAR'S
SOUR CHERRY PIE
4992094 Beer, Cl. 32 Crooked Stave,
LLC

4925315 Printed publications, … in the field of
identification and prevention of child
sexual abuse, Cl. 16; Promoting public
awareness of child sexual abuse, Cl.
35; providing a website featuring
blogs and non-downloadable
publications … in the field of
identification and prevention of child
sexual abuse, Cl. 41; Providing online
information in the field of
identification and prevention of child
sexual abuse, Cl. 45
The Mama
Bear Effect,
Inc.
THE MAMA
BEAR EFFECT
4921344 Printed publications, … in the field of
identification and prevention of child
sexual abuse, Cl. 16; Promoting public
The Mama
Bear Effect,
Inc.
Serial No. 86923714
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Mark Reg. No. Goods/Services Owner
awareness of child sexual abuse, Cl.
35; providing a website featuring
blogs and non-downloadable
publications … in the field of
identification and prevention of child
sexual abuse, Cl. 41; Providing online
information in the field of
identification and prevention of child
sexual abuse, Cl. 45
MAMA BEAR'S
BREW
4923591 Flavored beers, Cl. 32 MB Beverage
Co., LLC

MAMABEAR 4351472 Mobile application software … for
providing customer-defined generated
content and content of others
automatically selected and
customized based on the known or
estimated geographical location of
mobile telephone, Cl. 9
Grom
Holdings Inc.
IT'S A MAMA
BEAR THING
5778302 Shirts; Tank-tops; Hooded sweat
shirts; Short-sleeve shirts; Short-
sleeved or long-sleeved t-shirts; Sleep
shirts; Sweat shirts; T-shirts; Tee
shirts; Tee-shirts; none of the
foregoing intended for babies or
children, Cl. 25
Sarah Marie
Duncan d/b/a
Loved by
Hannah and
Eli, Inc.
MAMA BEAR
COFFEE
5798895 Coffee; Coffee beans; Roasted coffee
beans, Cl. 30
San Diego
Coffee, Tea &
Spice, Inc.

5675310 Diaper pail liners in the form of a
plastic film within a cassette which
functions as a bag when inserted into
a diaper disposal pail; plastic bags for
disposable diapers, Cl. 16
Amazon
Technologies,
Inc.
MAMA BEAR
APOLOGETICS
5785059 On-line journals, namely, blogs
featuring articles in the field of
Christian apologetics, Cl. 41
Ferrer, Hillary
M. d/b/a Mama
Bear
Apologetics
MAMA BEAR
SKIN CARE
5742375 Body butter; hair oil; baby balm,
namely, non-medicated preparations
for the care of baby skin; baby balm in
the nature of non-medicated diaper
rash ointments; baby balm, namely,
body balm for babies; lip balm; salve,
namely, non-medicated preparations
for the care of skin; and body spray, Cl.
3
Amazon
Technologies,
Inc.
Serial No. 86923714
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Mark Reg. No. Goods/Services Owner

5687647 Baby diapers; baby food, Cl. 5 Amazon
Technologies,
Inc.
MAMA BEAR
SHARE
5395420 Providing … companionship and
emotional support for individuals that
have suffered traumatic life events;
providing … companionship and
emotional support for individuals that
have suffered traumatic life events,
via a website, Cl. 45
Mama Bear
Life Coach,
LLC

5731716 Providing online legal forms for the
parent child relationship, Cl. 45
Mama Bear
Legal Forms,
Inc.

5980632 Laundry detergent, Cl. 3 Amazon
Technologies,
Inc.
III. Arguments
Applicant argues that, in rejecting Applicant’s MAMA BEAR application as
compared to Applicant’s IT’S A MAMA BEAR THING and other third-party “MAMA
BEAR” registrations, the USPTO has acted in an inconsistent and arbitrary
manner.16 Applicant also says that her proposed MAMA BEAR mark is not merely
informational because, to be rejected on this basis, her proposed mark must have no
purpose other than to convey information about a general cause or concept.17
Applicant further contends that her proposed MAMA BEAR mark functions as a
mark because it is used on hang tags, a printed label on the neck of the goods,
packaging for the goods, and invoices for the goods where the consumer would expect

16 Applicant’s Brief, 6 TTABVUE 10-14.
17 Id. at 15-18.
Serial No. 86923714
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to find the mark.18 Applicant additionally claims that third parties who are using
MAMA BEAR emblazoned on shirts and other clothing items are print-to-order
copyists or outright infringers of her trademark rights.19
The Examining Attorney argues that Applicant’s proposed MAMA BEAR mark is
a commonplace message or expression that is widely used by a variety of sources,
especially when emblazoned in an ornamental manner on clothing. The proposed
mark merely conveys an ordinary, familiar, well-recognized concept or sentiment that
the person wearing such clothing is fiercely protective of children. As such the
proposed mark does not function as a trademark to indicate the source of Applicant’s
goods.20
The Examining Attorney further says that prior decisions and actions of other
examining attorneys in applications for other marks have little evidentiary value and
are not binding upon the USPTO or the Board. This appeal should be decided on its
own facts, and Applicant’s proposed mark should stand on its own merits. Moreover,
many of the third-party registrations to which Applicant refers contain matter
distinguishing them from Applicant’s proposed mark. The fact that Applicant claims
to be the first user of a ubiquitous designation is not dispositive on the issue of
registrability where, as here, the evidence shows that the proposed mark is
ubiquitous.21

18 Id. at 18-19.
19 Id. at 19-21.
20 Examining Attorney’s Brief, 10 TTABVUE 4-9, 17-18.
21 Id. at 9-15.
Serial No. 86923714
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The Examining Attorney also contends that Applicant’s purported trademark use
of MAMA BEAR, for example on hangtags, in addition Applicant’s ornamental use,
does not conclusively show that consumers will perceive it as a mark. In fact, says
the Examining Attorney, Applicant uses the proposed mark in the exact same
ornamental manner as it used by countless other third parties.22
IV. Discussion and Analysis
The USPTO’s policy regarding the registrability of widely used messages may be
summarized as follows:
“Widely used messages” include slogans, terms, and phrases used by
various parties to convey ordinary or familiar concepts or sentiments, as
well as social, political, religious, or similar informational messages that
are in common use or are otherwise generally understood. The more
commonly a term or phrase is used in everyday speech or in an
associational or affinitive manner by various sources, the less likely
consumers will perceive the matter as a trademark or service mark for
any goods and services.
* * *
Messages that merely convey ordinary, familiar concepts or sentiments
that are used by a variety of sources in the marketplace are considered
commonplace and will be understood as conveying the ordinary concept
or sentiment normally associated with them, rather than serving any
source-indicating function.
TMEP § 1202.04(b) (internal citations omitted).
The dictionary evidence of record shows that the literal definition of MAMA BEAR
is a female bear rearing one or more of her cubs. The colloquial (slang) definition the
term is a woman, especially a mother, who is extremely protective of a child or

22 Id. at 18-19.
Serial No. 86923714
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children. The discussion of MAMA BEAR in the literature of record picks up on this
colloquial definition of the term. People, particularly women, who wish to associate
themselves with this term are projecting the social message to others that they are
fiercely protective parents.
Ubiquitous use of MAMA BEAR, emblazoned in an ornamental manner on the
front of t-shirts and sweatshirts by Applicant and many third parties, supports a
finding that the phrase MAMA BEAR will be perceived as a widely used message,
and not as a unique source identifier. As demonstrated by these marketplace
examples, dictionary definitions and the literature, target consumers who purchase
and wear this merchandise express to others that they exude protective maternal
behavior. MAMA BEAR is therefore a common, widely used and generally understood
term to convey a messages of an ordinary or familiar concept or sentiment –
aggressive protective parenting. It therefore does not serve as a designation of source
for Applicant’s clothing products and as such is unregistrable. In re Hulting, 107
USPQ2d 1175, 1177 (TTAB 2013) (“[C]ommon … phrases or statements that would
ordinarily be used in business or in the particular trade or industry … are not
registrable.”).
As noted, Applicant argues that MAMA BEAR cannot be refused registration as
an informational expression because only terms that have no purpose other than to
convey information about something can be refused on this basis. This is an incorrect
statement of the law. See e.g. In re Team Jesus, 2020 USPQ2d 11489, at *8 (affirming
Serial No. 86923714
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refusal to register TEAM JESUS for clothing and educational services as a ubiquitous
message of affiliation by referring to Christians generally as part of “Team Jesus.”).
Applicant’s argument that, compared to Applicant’s IT’S A MAMA BEAR THING
and other third-party “MAMA BEAR” registrations, the USPTO has acted in an
inconsistent and arbitrary manner is not persuasive. As the U.S. Court of Appeals for
the Federal Circuit stated in In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564
(Fed. Cir. 2001):
[Registrability] depend[s] on context and any other factor[s] affecting
public perception. The Board must decide each case on its own
merits. (citation omitted). Even if some prior registrations had some
characteristics similar to … [the] application [at issue], the [US]PTO’s
allowance of such prior registrations does not bind the Board or … [the
Federal Circuit]. … Needless to say, … [the Federal Circuit] encourages
the [US]PTO to achieve a uniform standard for assessing registrability
of marks. Nonetheless, the Board (and … [the Federal Circuit] in its
limited review) must assess each mark on the record of public perception
submitted with the application.
In re Nett Designs, 57 USPQ2d at 1566.
In addition to the overall guidance provided by In re Nett Designs, we give
Applicant’s and third-party registrations made of record low probative value for other
reasons. Applicant’s registered IT’S A MAMA BEAR THING mark is a unitary phrase
containing three additional word elements, distinguishing it from the proposed mark
MAMA BEAR mark standing alone. Proof that MAMA BEAR is widely used by third
parties does not translate to evidence that IT’S A MAMA BEAR THING is also
ubiquitous.
The registered third-party marks made of record by Applicant also are
distinguishable from the proposed MAMA BEAR mark. Like Applicant’s IT’S A
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MAMA BEAR THING mark, the third-party marks contain additional matter (words
or designs) making these marks distinct from MAMA BEAR standing alone. All of
the third-party marks, moreover, are registered in connection with goods and services
other than clothing (Applicant’s goods in issue) presenting a different context.
Applicant claims that the third-party uses of MAMA BEAR made of record by the
Examining Attorney were not in existence when she started her business in 2013,
and that every one of the sellers cited by the Examining Attorney are vendors who
copied her.23 That Applicant may have been the first user of the ubiquitous MAMA
BEAR designation is not dispositive on the issue registrability where, as here, the
evidence shows that the term indeed is ubiquitous. See KP Permanent Make-Up, Inc.
v. Lasting Impression I, Inc., 543 U.S. 111, 122 (2004) (one cannot own a term that
does not function as a trademark merely by “grabbing it first.”); In re Fantasia Dist.,
Inc., 120 USPQ2d 1137, 1141 (TTAB 2016) (being the first user of an alleged mark
does not establish distinctiveness as a trademark); see also See In re Empire Tech.
Dev. LLC, 123 USPQ2d 1544, 1549 (TTAB 2017) (quoting In re Greenliant Sys. Ltd.,
97 USPQ2d 1078, 1083 (TTAB 2010)) (where evidence establishes a term or phrase
is incapable of functioning as a source identifier, it does not matter whether the
applicant is the first user).
Applicant also argues that her use of the proposed MAMA BEAR mark as a
designation of source on hang tags, neck labels and product packaging demonstrates

23 Declaration of Sarah Marie Duncan, ¶¶ 1, 13, provided with Office Action Response of
September 21, 2018.
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that it functions as a trademark for Applicant’s goods. This argument is not
persuasive. “Not every designation adopted with the intention that it perform a
trademark function necessarily accomplishes that purpose, even if labeled as a
trademark.” In re Wal-Mart Stores, 129 USPQ2d at 1158 (citing In re Eagle Crest, 96
USPQ2d at 1229). Moreover, “when [the] evidence shows, as it does here, that others
besides an applicant are using a phrase in an informational manner, the burden on
the applicant claiming exclusive ownership and a right to exclude others from use
increases.” Id. (citing In re Tilcon Warren, Inc., 221 USPQ 86, 88 (TTAB 1984).
As noted by the Examining Attorney,24 in addition to appearing on her hang tags
(or on neck labels or packaging), Applicant’s specimens of use and other evidence she
made of record show the proposed mark used in the exact same ornamental manner
as done by many other third parties. Further, Applicant’s hang tag usage appears
only as a description of the phrase on her clothing—first, the front of the tag shows
another ornamental use of the mark on a different article of clothing; second, other
marks appear as source indicators on the tag such as LOVED BY HANNAH AND
ELI, INC and a design of two teepees at the bottom of the tag. The phrase “MAMA
BEAR” appears in quotes on the tag to indicate the message on the clothing. Thus,
Applicant’s purported trademark uses of the proposed mark do not counter the record
evidence of pervasive ornamental and message-conveying use of identical term
MAMA BEAR by others.

24 Examining Attorney’s Brief, 10 TTABVUE 19.
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V. Conclusion
The evidence of record – dictionary definitions, uses of MAMA BEAR in literature,
Applicant’s specimens of use and her other uses, and pervasive third-party use of the
term on clothing – support our finding that MAMA BEAR is a widely used and
generally understood term that conveys a message of aggressive protective parenting.
Applicant’s evidence and arguments do not persuade us to the contrary. On this
record, the term does not serve as a designation of source for Applicant’s clothing. It
fails to function as a trademark and therefore is unregistrable.
Decision:
The refusal to register Applicant’s proposed mark MAMA BEAR under
Trademark Act Sections 1, 2 and 45 on the ground that it fails to function as a
trademark is affirmed.