Summit Companies Incorporated

Trademark Trial and Appeal Board

Jun 8, 2018

No. 87219974 (T.T.A.B. Jun. 8, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 8, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re Summit Companies Incorporated
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Serial No. 87219974
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Charles F. Luce, Jr. of Moye White LLP,
for Summit Companies Incorporated.
April Roach, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Kuhlke, Lykos, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:

Summit Companies Incorporated (“Applicant”) seeks registration on the Principal
Register of the mark ELEVATED ENTERTAINMENT (in standard characters) for
“Amusement centers; Bowling alleys,” in International Class 41.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 6(a), 15 U.S.C. § 1056(a), based on Applicant’s failure

1 Application Serial No. 87219974 was filed on October 28, 2016, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as August 26, 2014.
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to comply with a requirement to disclaim the word ENTERTAINMENT, which the
Examining Attorney maintains is merely descriptive under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1), when used in connection with Applicant’s
services, and therefore must be disclaimed apart from the mark as shown.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Applicable Law

A requirement under Trademark Act Section 6(a) for a disclaimer of unregistrable
matter in a mark is appropriate when that matter is merely descriptive of the goods
or services at issue. See In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089
(Fed. Cir. 2005). Merely descriptive or generic terms are unregistrable under
Trademark Act Section 2(e)(1), and therefore are subject to a disclaimer requirement
if the mark is otherwise registrable. Failure to comply with a disclaimer requirement
is a ground for refusal of registration. See In re La. Fish Fry Prods., Ltd., 797 F.3d
1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015); In re RiseSmart Inc., 104 USPQ2d
1931, 1933 (TTAB 2012). However, if the matter that comprises the mark or relevant
portion of the mark is unitary, no disclaimer of an element, even if that element is
descriptive, is required. A mark or portion of a mark is considered “unitary” when it
creates a commercial impression separate and apart from any unregistrable
component. Trademark Manual of Examining Procedure (“TMEP”) § 1213.05 (Oct.
2017).
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Applicant does not dispute that the term ENTERTAINMENT is descriptive of its
services.2 Instead, Applicant argues that the mark ELEVATED ENTERTAINMENT
is unitary as both a slogan and a double entendre, and therefore no disclaimer of the
word ENTERTAINMENT should be required for its mark.3 Accordingly, the sole issue
in this appeal is whether the mark ELEVATED ENTERTAINMENT is unitary, such
that a disclaimer of ENTERTAINMENT should not be required under Section 6(a) of
the Trademark Act.4
A. Unitary Marks
Whether or not a mark is unitary is a factual determination. In re Slokevage, 441
F.3d 957, 78 USPQ2d 1395, 1397 (Fed. Cir. 2006). As explained in Dena Corp. v.
Belvedere Int’l Inc., 950 F.2d 1555, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991):
A unitary mark has certain observable characteristics.
Specifically, its elements are inseparable. In a unitary
mark, these observable characteristics must combine to
show that the mark has a distinct meaning of its own
independent of the meaning of its constituent elements. In
other words, a unitary mark must create a single and
distinct commercial impression.

Ultimately, the “test for unitariness requires the Board to determine ‘how the
average purchaser would encounter the mark under normal marketing of such goods
and also ... what the reaction of the average purchaser would be to this display of the

2 Indeed, Applicant states that it “is not attempting to lay exclusive claim to the word
‘Entertainment,’ only to its slogan, ELEVATED ENTERTAINMENT.” Applicant’s Brief, p.
12 (7 TTABVUE 13).
3 Id. at 3 (7 TTABVUE 4); Reply Brief, p. 3 (10 TTABVUE 4).
4 Reply Brief, p. 3 (10 TTABVUE 4) (Applicant states that “The Examining Attorney agrees
that the only issue presented on appeal is whether Applicant’s [m]ark . . . is unitary, such
that a disclaimer . . . should not be required.”).
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mark.’” Dena Corp., 21 USPQ2d at 1052 (quoting In re Magic Muffler Serv., Inc., 184
USPQ 125, 126 (TTAB 1974)).
A mark may be unitary where it is, inter alia, (1) a slogan that is not itself merely
descriptive, (2) a double entendre, or (3) composed of sound patterns such as
alliteration and rhyming. See TMEP §§ 1213.05(b)(i), 1213.05(c), and 1213.05(e).
Applicant argues these points; that is, ELEVATED ENTERTAINMENT is unitary
because it is a slogan, a double entendre, and composed of wordplay that creates an
alliterative lilting cadence.
1. Slogan
As Applicant acknowledges from TMEP § 1213.05(b)(i), a slogan is a type of phrase
and is defined as “a brief attention-getting phrase used in advertising or promotion”
and “a catch phrase used to advertise a product.”5 Because slogans are considered
unitary, the individual words in them are not disclaimed. Leading Jewelers Guild
Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1905 n.7 (TTAB 2007).
There is no question that the subject mark is a combination of two words.
However, there is nothing in the combination itself that makes the mark a slogan.
ELEVATED is an adjective6 which modifies the merely descriptive (if not generic)
term ENTERTAINMENT. Applicant submitted no evidence that an adjective
followed by a descriptive (or generic) term would necessarily create a slogan. Instead,
Applicant relies on use of its mark as shown on the specimens of record to support its

5 Brief, p. 6 (7 TTABVUE 7).
6 See definition of “elevated” submitted with Request for Reconsideration (4 TTABVUE 62).
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position that, because ELEVATED ENTERTAINMENT is “used in close proximity
with, and as subtext to, Applicant’s primary mark, THE SUMMIT,” the applied-for
mark ELEVATED ENTERTAINMENT would be perceived “as a slogan/tagline for
Applicant’s entertainment centers” which it advertises under a different, primary
mark (i.e., THE SUMMIT).7 However, the inquiry for determining whether a mark is
unitary involves considering the mark itself as used in connection with the identified
services, and not by reference to any of Applicant’s other marks. See In re Brown-
Forman Corp., 81 USPQ2d 1284, 1287-88 (TTAB 2006) (GALA ROUGE existed and
has meaning only as part of the applicant’s current marketing campaign, but the
marketing campaign and motif were not part of the mark sought to be registered and
could be changed or abandoned at any time). Cf. In re The Place Inc., 76 USPQ2d
1467, 1471-72 (TTAB 2005) (trade dress and other marketing indicia which are not
part of the mark sought to be registered cannot be considered in determining whether
mark is a double entendre). A mark does not become a slogan merely because it may
be used in connection with other extrinsic matter. In re Wells Fargo & Co., 231 USPQ
95, 100 (TTAB 1986) (“The well-established rule that descriptiveness issues must be
analyzed in relation to the context of use does not and cannot, obviously, mean that
descriptiveness of the term sought to be registered must be evaluated as if that term
were used in association with other non-descriptive indicia. . . . Consequently, the
effect of these other indicia on consumer perceptions cannot be considered in our
determination whether its registration would be contrary to the provisions of Section

7 Brief, p. 6 (7 TTABVUE 7).
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2(e)(1).”). Standing alone, Applicant’s two-word mark does not create a single and
distinct commercial impression as a slogan.
Applicant also relies on four third-party registrations (for the marks I’M LOVIN’
IT, THINK DIFFERENT, IT’S FINGER LICKIN’ GOOD, and EAT FRESH)8 in
support of its argument that because slogans commonly are used as subtext to a
primary mark consumers have been conditioned by marketing conventions to
recognize such use, and that Applicant’s use of ELEVATED ENTERTAINMENT in
association with its primary mark THE SUMMIT will lead its consumers to
intuitively understand that ELEVATED ENTERTAINMENT is a unitary slogan.
Even if we found this argument persuasive, we again note that our inquiry into
whether the applied-for mark is a unitary slogan involves considering the mark itself
as used in connection with the identified services, and not by reference to any of
Applicant’s other marks (such as THE SUMMIT). See Brown-Forman Corp., 81
USPQ2d at 1287-88. Applicant’s reliance on Magic Muffler is inapposite. Magic
Muffler was ultimately a case about spatially separate elements in a mark creating a
single composite or unitary mark – not whether the mark was unitary due to double
entendre or slogan considerations. See Magic Muffler, 184 USPQ at 125.
Finally, the probative value of the third-party marks is diminished because two of
them (I’M LOVIN’ IT and IT’S FINGER LICKIN’ GOOD) consist of more than two
words, while the remaining two that are two-word marks (THINK DIFFERENT and
EAT FRESH) are imperatives that do not follow the same pattern as Applicant’s

8 See Request for Reconsideration (4 TTABVUE 54-60); Brief, pp. 7-8 (7 TTABVUE 8-9).
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mark (i.e., an adjective which modifies a following merely descriptive or generic
word).
2. Double entendre
Applicant argues that ELEVATED ENTERTAINMENT has multiple meanings
because the term suggests both that Applicant’s entertainment facilities are superior
to all others and that they are located at high altitude.9 However, in neither of these
alternative meanings posited by Applicant does ELEVATED ENTERTAINMENT
have a pre-existing, well-recognized unitary significance. “The multiple
interpretations that [make] an expression a ‘double entendre’ must be associations
that the public would make fairly readily, and must be readily apparent from the
mark itself.” In re Calphalon Corp., 122 USPQ2d 1153, 1163 (TTAB 2017) (quoting
TMEP § 1213.05(c)). This was illustrated in In re The Place, in which the applicant
argued that THE GREATEST BAR for restaurant and bar services was a double
entendre because the theme and decor of the restaurant would focus on the greatest
people, places and events in Boston history. The Board rejected that argument,
stating:
[W]e find that this case is distinguishable from the double
entendre cases relied upon by applicant, because in those
cases the double entendre was apparent on the face of the
mark itself. For example, in In re Colonial Stores Inc., 394
F.[2]d 549, 157 USPQ 382 (CCPA 1968), the court found
that the mark SUGAR & SPICE for bakery products was a
double entendre, because it immediately connoted both the
ingredients of the bakery products and the well-known
nursery rhyme phrase “sugar & spice and everything nice.”
In In re National Tea Co., 144 USPQ 286 (TTAB 1965), the

9 Brief, p. 11 (7 TTABVUE 12).
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Board held that the mark NO BONES ABOUT IT for ham
immediately connoted both the fact that the ham was
boneless and the commonly used phrase “no bones about
it.”

The Place, 76 USPQ2d at 1472.
Neither proposed interpretation of Applicant’s ELEVATED ENTERTAINMENT
mark reveals a distinct meaning of its own independent of the meaning of its
constituent elements; and, in each of Applicant’s proposed meanings of the mark,
“entertainment” retains its merely descriptive meaning. Even assuming that
ELEVATED ENTERTAINMENT may potentially indicate different types of
entertainment, we point out that the multiple interpretations posited by Applicant
are not associations that the public would make fairly readily, and are not readily
apparent from the mark itself, in relation to the services in the identification. See
Brown-Forman Corp., 81 USPQ2d at 1287 (finding that GALA ROUGE for “wines” is
not unitary, and has no pre-existing well-recognized significance with regard to
applied-for goods); The Place, 76 USPQ2d at 1470 (finding THE GREATEST BAR for
“restaurant and bar services” is not a double entendre; “A mark is thus deemed to be
a double entendre only if both meanings are readily apparent from the mark itself.”);
In re Ethnic Home Lifestyles Corp., 70 USPQ2d 1156, 1158-59 (TTAB 2003) (finding
ETHNIC ACCENTS for TV programs in the field of home decor merely descriptive
and noting, “To have a double entendre, both meanings must be readily apparent, but
the meaning suggested by applicant is not apparent upon seeing the mark in
connection with the services.”); In re Polo Int’l Inc., 51 USPQ2d 1061, 1063 (TTAB
1999) (finding in context of the applicant’s goods that DOC in DOC-CONTROL would
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be understood to refer to the “documents” managed by applicant’s software, not
“doctor” as shown by dictionary definition).
ELEVATED ENTERTAINMENT has no pre-existing and well-recognized
meaning or significance, but apparently exists and has meaning only as part of
Applicant’s current marketing campaign as reflected by its specimens. That
marketing campaign or motif is not part of the mark sought to be registered, and it
could be changed or abandoned at any time, leaving simply the words of the mark,
ELEVATED ENTERTAINMENT. See Brown-Forman Corp., 81 USPQ2d at 1287-88.
Cf. The Place, 76 USPQ2d at 1471-72 (trade dress and other marketing indicia which
are not part of the mark sought to be registered cannot be considered in determining
whether mark is a double entendre).
3. Alliterative Cadence
Applicant also argues that ELEVATED ENTERTAINMENT has an alliterative,
lilting cadence.10 However, Applicant does not contend that its mark’s alliteration,
standing alone, renders it unitary. Rather, Applicant argues that “the alliterative
quality of ELEVATED ENTERTAINMENT is merely one of a [sic] several factors
which, combined, make the [m]ark immediately recognizable as . . . unitary . . . .”11
We agree with Applicant to the extent that merely because ELEVATED and
ENTERTAINMENT begin with the same letter does not make the mark unitary. The
Board in In re Lean Line, Inc., 229 USPQ 781 (TTAB 1986), found the mark LEAN

10 Brief, pp. 9, 11-12 (7 TTABVUE 10, 12-13); Reply, pp. 4, 5 (10 TTABVUE 5, 6).
11 Reply, p. 5 (10 TTABVUE 6).
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LINE for low calorie foods not to be unitary and the requirement of a disclaimer of
LEAN to be proper. As the Board stated, “there is nothing in the record to suggest
that the mere fact that both words which form the mark begin with the letter ‘L’
would cause purchasers to miss the merely descriptive significance of the term
‘LEAN’ or consider the entire mark to be a unitary expression.” Id. at 782. Similarly,
a consumer encountering the mark ELEVATED ENTERTAINMENT in connection
with Applicant’s amusement centers or bowling allies would perceive the mark as two
separate components with the ENTERTAINMENT component describing the
services’ function and purpose. ELEVATED ENTERTAINMENT is not a double
entendre or an expression; nor is it connected in such a way to make it unitary.
Applicant’s mark is not ELEVATED ‘N ENTERTAINING (using the pattern of the
mark LIGHT N’ LIVELY from In re Kraft, Inc., 218 USPQ 571 (TTAB 1983)) but
rather ELEVATED ENTERTAINMENT in which the word ENTERTAINMENT is
easily separable from the initial word to describe Applicant’s amusement centers and
bowling allies. That is, the merely descriptive significance of the term
ENTERTAINMENT is not lost in the mark as a whole. RiseSmart, 104 USPQ2d at
1934.
II. Decision
The refusal to register Applicant’s mark ELEVATED ENTERTAINMENT in the
absence of a disclaimer is affirmed. However, this decision will be set aside if, within
thirty (30) days of the mailing date of this decision, Applicant submits to the Board a
proper disclaimer of ENTERTAINMENT. See Trademark Rule 2.142(g); 37 C.F.R. §
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2.142(g). The standardized disclaimer format is as follows: “No claim is made to the
exclusive right to use ENTERTAINMENT apart from the mark as shown.” TMEP
§ 1213.08(a).