Travelpro Int'l., Inc.

Trademark Trial and Appeal Board

Feb 6, 2003

No. 76030904 (T.T.A.B. Feb. 6, 2003)

DL Mailed: 06 FEB 2003
Paper No. 13
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Travelpro International, Inc.
________
Serial No. 76/030,904
_______
Jennifer P. Rabin of Akerman, Senterfitt & Eidson for
Travelpro International, Inc.
Curtis French, Trademark Examining Attorney, Law Office 115
(Thomas Vlcek, Managing Attorney).
_______
Before Simms, Rogers and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
Travelpro International, Inc. (applicant) filed a
trademark application to register the mark FLIGHT CREW (in
typed form) on the Principal Register for “luggage” in
International Class 18.1
1 Serial No. 76/030,904, filed April 19, 2000, based on an
assertion of a bona fide intent to use the mark in commerce. An
amendment to allege use was filed on August 16, 2002, claiming
first use dates of November 30, 2000.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser. No. 76/030,904
2
The examining attorney refused to register the mark on
the ground that the mark, when used in association with the
goods, is merely descriptive. 15 U.S.C. § 1052(e)(1).
After the examining attorney made the refusal final, this
appeal followed. Both applicant and the examining attorney
have filed briefs.
We affirm.
Preliminarily, we must address a procedural matter.
The examining attorney objected to Exhibit J submitted with
applicant’s appeal brief, consisting of TESS print-outs of
Registration No. 2,393,632 and Application Serial No.
76/178,624, as being untimely. Examining Attorney’s Br. at
2. The examining attorney correctly pointed out that the
evidentiary record in an application should be complete
prior to the filing of an ex parte appeal to the Board.
Additional evidence filed after appeal normally will be
given no consideration by the Board. See Trademark Rule
2.142(d), 37 C.F.R. § 2.142(d); see also In re Juleigh
Jeans Sportswear, Inc., 24 USPQ2d 1694, 1696 (TTAB 1992);
In re Pennzoil Products Co., 20 USPQ2d 1753, 1756 n. 9
(TTAB 1991).
Because the TESS print-out of Application Serial No.
76/178,624 was not submitted until after the appeal was
filed, the examining attorney's objection is well taken and
Ser. No. 76/030,904
3
the TESS information regarding Application Serial No.
76/178,624 has not been considered.2 As noted by applicant,
however, a reprint of information on Registration No.
2,393,632, retrieved from the Office’s X-SEARCH system, was
already made of record by the examining attorney as an
attachment to the final refusal issued on September 25,
2001. The TESS printout submitted by applicant is merely a
functional equivalent of this item already of record.
This brings us to the substantive issue involved in
this appeal.
The examining attorney’s position is that the term
“flight crew” is merely descriptive of applicant’s goods,
namely, a small soft-sided suitcase with built-in wheels
and a long handle for pulling that has been popularized by
airline flight crews and known in the relevant industry as
a flight crew bag or case. Br. at 3. The examining
attorney also argues that the term is descriptive of an
intended class of users of the luggage, namely, flight crew
members. Br. at 5.
2 Applicant argues that it introduced Application Serial No.
76/178,624 to rebut what applicant asserts is the examining
attorney’s mistaken belief, based on an Internet printout, that
applicant operates a website on which the proposed mark is used
descriptively. Our opinion does not rely on this website
evidence.
Ser. No. 76/030,904
4
The examining attorney submitted copies of excerpts
from seven articles retrieved from the NEXIS publication
database that show use of the term “flight crew” in
connection with luggage3, including the following:
A lot of people tried solving this problem by
using the small airline-type luggage used by
flight crews.
Chicago Daily Herald, May 7, 2000.
As travel picks up, so does the popularity of
flight-crew bags those soft-sided suitcases with
built-in wheels and a long handle for pulling.
Atlanta Constitution, June 27, 1996.
Here are some basic facts about flight-crew
luggage: Size. They were designed originally to
be used as carry-on luggage.
Orange County Register, March 29, 1996.
Better-equipped travelers cruise easily down the
concourse pulling a flight-crew bag, the biggest
innovation in luggage in years. Airline
personnel first used these rolling suitcases; an
ex-pilot designed the prototype, introduced as
the Travelpro. Today, nearly every luggage
manufacturer offers at least one model. Flight-
crew bags, which can hold what you need for a
three-day trip, are more mobile and versatile
than their predecessors... And the information
below can help you evaluate any flight-crew bag
you see in the stores. Size. Flight-crew bags
were designed originally to be used as carry-on
luggage.
Consumer Reports, December 1995.
That’s because ASU’s primary consumers are
airline flight crews, and the airport is a
3 Two of the excerpted articles from the NEXIS database are from
foreign publications, and thus are of very limited probative
value as to consumer perception of the term in the United States.
See In re Urbano, 51 USPQ2d 1776, 1778 n. 3 (TTAB 1999); In re
Men's International Professional Tennis Council, 1 USPQ2d 1917,
1918 (TTAB 1987).
Ser. No. 76/030,904
5
convenient place to find them. ASU specializes
in the wheeled luggage that flight crews have
used for years and which more of us are buying.
Small wonder that wheeled luggage is so popular.
Houston Chronicle, October 24, 1995.
In addition, the examining attorney submitted several
excerpts from Internet web sites that allegedly showed use
of the term in a descriptive manner4, including the
following:
C-130 Flight Crew Bag (Military Flight Crews) ...
Especially made for Military Flight Crews”
www.cencal.com – Cencal Aviation Products
[advertising a product identified as “flight crew
bag” for military flight crews].
The story I’ve seen in Travelpro’s ads is that
the inventor of the Rollaboard is a former
airline employee who combined a piece of carry-on
luggage with a luggage cart. For years, these
rolling uprights were the exclusive domain of
airline personnel, who had you thinking that it
was a status symbol... Don’t know what to look
for when choosing a rolling upright? Read
“Flight-crew luggage” from Consumer Reports
(December 1, 1995 v 60 n 12).
www.travelite.org/luggage/roller.html, -- The
Travellite FAQ: Your source for travel packing
tips.
4 The examining attorney's print-outs of the results of Internet
searches by the YAHOO and GOOGLE search engine are of little
probative value, largely because insufficient text is available
to determine the nature of the information and, thus, its
relevance.
Ser. No. 76/030,904
6
Supported by this evidence, the examining attorney
submits that the proposed mark is merely descriptive for
the identified goods.
Applicant, on the other hand, maintains that the term
“flight crew” is at most suggestive because the term (1) is
not understood by customers and the relevant industry to
refer to a particular type of luggage, but rather refers to
flight attendants and airline pilots; (2) does not identify
the exclusive user of the goods; and (3) is not needed by
competitors. Applicant argues that soft-sided luggage with
built in wheels and handles are known not by the term
“flight crew” but by such terms as “rolling luggage,”
“rolling uprights,” “carry-on luggage” or “wheelies.” Br.
at 3.
In support of its assertion, applicant submitted
excerpts from various websites indicating such luggage is
referred to by other designations; a listing of
manufacturers by product category from a travel goods show;
and declarations including those from senior buyers for an
airline, the purchasing coordinator of an airline company
store and an advisory consultant to a luggage industry
association in support of its position.
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics of
Ser. No. 76/030,904
7
the goods or if it conveys information regarding a
function, purpose, or use of the goods. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217 (CCPA
1978). See also In re Nett Designs, 236 F.3d 1339, 57
USPQ2d 1564, 1566 (Fed. Cir. 2001). Courts have long held
that to be “merely descriptive,” a term need only describe
a single significant quality or property of the goods. In
re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir.
1987); Meehanite Metal Corp. v. International Nickel Co.,
262 F.2d 806, 120 USPQ 293, 294 (CCPA 1959).
After considering the arguments and the evidence, we
agree with the examining attorney that the term FLIGHT CREW
is merely descriptive for applicant’s luggage and therefore
affirm the examining attorney’s refusal to register the
mark under Section 2(e)(1) of the Trademark Act.
There is ample evidence in the record to support the
conclusion that the term FLIGHT CREW describes a
characteristic or feature of applicant’s luggage, namely,
luggage with the array of features favored by professional
airline flight crew members. See, e.g., Chicago Daily
Herald, May 7, 2000 (“small airline-type luggage used by
flight crews”); Atlanta Constitution, June 27, 1996
(“popularity of flight-crew bags those soft-sided suitcases
with built-in wheels and a long handle for pulling”);
Ser. No. 76/030,904
8
Orange County Register, March 29, 1996 (“Here are some
basic facts about flight-crew luggage”); Consumer Reports,
December 1995 (“Better equipped travelers cruise easily
down the concourse pulling a flight-crew bag ... Flight-
crew bags ... are more mobile and versatile than their
predecessors ... And the information below can help you
evaluate any flight-crew bag you see in the stores.”);
Houston Chronicle, October 24, 1995 (“ASU specializes in
the wheeled luggage that flight crews have used for years
and which more of us are buying.”); www.cencal.com website
(advertising luggage product identified as “flight crew
bag” for military flight crews).
The specimen of record consisting of a hangtag also
shows that the term FLIGHT CREW describes the goods as
being of a type used by flight crew members:
Travelpro maintains steadfast in its mission to
satisfy the ever changing needs of the traveling
professional. That’s why Travelpro’s “Pilot
Designed, Flight Crew Tested” styles are used by
over 425,000 professional flight crew members
worldwide.
We can consider the context in which an applicant uses
the mark, including the labels and packaging for the goods
and the advertising materials directed to the goods, to
determine the reaction of prospective purchasers to the
mark. Abcor, 200 USPQ at 218; see also In re
Ser. No. 76/030,904
9
Pharmaceutical Innovations, Inc., 217 USPQ 365, 366 (TTAB
1983).
Applicant argues that the NEXIS articles submitted by
the examining attorney are not evidence of consumers’
current understanding of the term FLIGHT CREW because most
date back to 1995 or 1996. Applicant’s Brief at 4-5. The
articles, however, are not so old that it would be
reasonable, in the absence of evidence to the contrary, to
assume that the meaning of the term has changed
substantially. Applicant also argues that most of the
articles refer back to the same 1995 Consumer Reports
article. It is not clear how this fact supports
applicant’s case. The article shows that prior to
applicant’s adoption of its trademark, Consumer Reports
used the term to describe a particular type of carry-on
luggage. After the publication of the Consumer Reports
article, other publications also used the term to refer to
this type of luggage. Subsequently, applicant began to use
the term as a trademark. The fact that applicant can trace
the root of many of these references to the Consumer
Reports article does not discredit the fact that writers
have used the term FLIGHT CREW to refer to a particular
type of luggage, prior to applicant’s adoption of the same
as a mark.
Ser. No. 76/030,904
10
Consumers will therefore understand that the term
FLIGHT CREW, as used on or in connection with the
identified goods, describes luggage similar to luggage used
by professional flight crew employees. See, e.g., In re
Major League Umpires, 60 USPQ2d 1059, 1061 (TTAB 2001)
(MAJOR LEAGUE UMPIRE describes clothing and equipment of
the type used by major league umpires).
Applicant makes several unpersuasive points in arguing
that its mark is not descriptive.
Applicant argues that the term FLIGHT CREW is at most
suggestive because it refers to the pilots and flight
attendants on an aircraft, and not a style of luggage. Br.
at 9. Moreover, applicant argues that the term FLIGHT CREW
has several different meanings (including flight crew on a
space shuttle, medical and flight staff on a helicopter
providing emergency medical care and transport, and flight
staff on a military aircraft) and is not limited to use in
connection with airline travel. Br. at 10. As such,
applicant asserts that “[c]onsumers are not able to discern
the nature of the product in question based on the limited
information conveyed by the designation ‘flight crew’.”
Br. at 9.
The fallacy of applicant’s position is that the
relevant definition of a term is the definition understood
Ser. No. 76/030,904
11
by the purchasing public in relation to the involved goods
or services. Abcor, 200 USPQ at 218; In re Polo
International, Inc., 51 USPQ2d 1061, 1062 n. 2 (TTAB 1999).
When applicant’s mark is considered in connection with the
identified goods, purchasers or prospective purchasers will
immediately consider the luggage to have the features of
luggage used by airline flight crews. There is nothing in
the record to suggest that space shuttle, medical or
military flight crews use luggage of the type that would
also be offered to general consumers. Thus, there is no
basis for concluding that such consumers would consider the
alternative meanings suggested by applicant.
Furthermore, the question is not whether someone
presented with the mark could guess what the goods are.
Rather, the question is whether someone who knows what the
goods are will understand the mark to convey information
about them. See In re American Greeting Corp., 226 USPQ
365, 366 (TTAB 1985) ("whether consumers could guess what
the product [or service] is from consideration of the mark
alone is not the test"). Here, in regard to luggage,
consumers would understand the term FLIGHT CREW to refer to
a specific type of the identified goods, namely, the type
or style of luggage used by professional airline flight
crews.
Ser. No. 76/030,904
12
Applicant maintains that its competitors do not use
the designation FLIGHT CREW to describe suitcases with
built-in wheels and long handles and there are numerous
alternative terms available to describe such luggage,
including “rolling luggage” and “rolling carry-on.” Br. at
13.
Even assuming these allegations to be true, the fact
that an applicant may be the first and only user of a
merely descriptive designation does not justify
registration if the term is merely descriptive. See
Clairol, Inc. v. Roux Distributing Co., 280 F.2d 863, 126
USPQ 397, 398 (CCPA 1960) (HAIR COLOR BATH, a novel way of
describing liquid for hair coloring, held generic); In re
Styleclick.com Inc., 57 USPQ2d 1445, 1448 (TTAB 2001) (the
term E FASHION is merely descriptive of applicant’s goods
and services despite no evidence of even a single use of
the term -- "That applicant may be the first and only
entity using E FASHION is not dispositive”); Polo
International, Inc., 51 USPQ2d at 1063 (“[T]he fact that
applicant will be or intends to be the first (and/or only)
entity to use the term DOC-CONTROL for computer software
for document management is not dispositive where, as here,
the term unquestionably projects a merely descriptive
connotation.”); In re Central Sprinkler Co., 49 USPQ2d
Ser. No. 76/030,904
13
1194, 1199 (TTAB 1998) ("The fact that applicant may be the
first or the only one using ATTIC in connection with
sprinklers is not dispositive."); In re Eden Foods Inc., 24
USPQ2d 1757, 1761 (TTAB 1992) (the fact that applicant may
be the first and/or only entity using a phrase not
dispositive). Moreover, the Board has consistently stated,
that for a designation to be merely descriptive, "it is not
necessary that it be in common usage in the particular
industry." Eden Foods, 24 USPQ2d at 1761; see also In re
National Shooting Sports Foundation, Inc., 219 USPQ 1018,
1020 (TTAB 1983).5
Furthermore, a descriptive term is not rendered
registrable merely because there may be alternative
descriptive terms also available for use. Cf. Roselux
Chemical Co. v. Parsons Ammonia Co., 299 F.2d 855, 132 USPQ
627, 632 (CCPA 1962) (many terms may be descriptive of a
product or service).
The Board has considered the affidavits submitted from
applicant. These declarations state in almost the same
language that customers do not understand or use the term
5 Firestone Tire & Rubber Co. v. Goodyear Tire & Rubber Co., 186
USPQ 557 (TTAB 1975), cited by applicant, is distinguishable. In
Firestone Tire, the Board found the two words “bias” and “steel”
were combined into a unitary term that rendered the term
suggestive. Here, there is no argument that the terms “FLIGHT”
and “CREW,” when combined, create a unitary term that is
suggestive.
Ser. No. 76/030,904
14
FLIGHT CREW to refer to rolling luggage or carry-on luggage
and that luggage having wheels and a telescoping handle is
referred to by many other terms. It is not clear on what
basis the declarants came to their conclusions. The fact
that applicant has introduced statements from seven
individuals involved in the luggage industry6 to the effect
that the term FLIGHT CREW is not commonly used in the
retail luggage industry to refer to a particular type of
luggage does not overcome the examining attorney’s evidence
that the term is merely descriptive. Also, while there are
other words that may be commonly used to describe
applicant’s goods, this does not establish that applicant’s
term is not merely descriptive. In addition, the ultimate
question in this case is not whether applicant’s mark is
generic but simply whether the term FLIGHT CREW describes
applicant’s goods. The evidence does support the examining
attorney’s position that FLIGHT CREW describes carry-on
bags.
The Board also agrees with the examining attorney that
the mark describes one category of intended users of the
goods, namely, flight crew members. See In re Camel
6 Out of the seven declarants, it is noted that two of the
declarants (Patricia A. Duffy and George Cassius) are employees
or independent sales representatives of applicant.
Ser. No. 76/030,904
15
Manufacturing Co., 222 USPQ 1031 (TTAB 1984) (a term is
descriptive if it describes the “type of individuals to
whom an appreciable number or all of a party’s goods or
services are directed.”); Hunter Publishing Co. v.
Caulfield Publishing Ltd., 1 USPQ2d 1996 (TTAB 1986)
(SYSTEMS USER descriptive of the readers of a magazine
directed to computer users). Applicant argues that its
goods are not exclusively marketed to airline personnel and
that a substantial number of its consumers are the general
public. Br. at 11. However, as indicated by applicant’s
specimen, its goods are “used by over 425,000 professional
flight crew members worldwide.” This appears to be an
appreciable number of the class of consumers to whom
applicant’s goods have been directed. See Camel, 222 USPQ
at 1022 (“there is no doubt that the group described by the
term “MOUNTAIN CAMPER” is a category of purchaser to whom
applicant specifically directs its camping equipment”).
Decision: The examining attorney’s refusal to
register the term FLIGHT CREW on the ground that it is
merely descriptive of the identified goods is affirmed.