Tynsy Foster

Trademark Trial and Appeal Board

May 30, 2008

No. 77011826 (T.T.A.B. May. 30, 2008)

Mailed: May 30, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Tynsy Foster
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Serial No. 77011825
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James R. Head, Esq. for Tynsy Foster.

David Reihner, Trademark Examining Attorney, Law Office 111
(Craig D. Taylor, Managing Attorney).
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Before Hairston, Walters and Holtzman, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Tynsy Foster seeks registration on the Principal
Register of the mark MIRACLE BEAR, in standard character
form, for “soft sculptures in the nature of stuffed fabric
bears,” in International Class 20.1 The application
includes a disclaimer of BEAR apart from the mark as a
whole.

1 Serial No. 77011826, filed October 2, 2006. The application is
based on use of the mark in commerce under Trademark Act Section
1(a), 15 U.S.C. §1051(a), alleging first use and use in commerce
as of September 26, 2006.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 77011826
2
At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register applicant’s mark on
the ground that the identified goods are not goods in
trade. See Trademark Act Sections 1 and 45, 15 U.S.C.
§1051 and 1127. The appeal is fully briefed. After
careful consideration of the evidence and arguments of
record, we reverse the refusal.
In his brief, the examining attorney has provided an
excellent synopsis of the facts and record in this case.
Thus, we repeat his statement below:
[On]March 12, 2007, [applicant submitted] (what
appeared to be) a card with the mark affixed. In
her remarks applicant indicated that she was
involved in receiving clothing or other fabric
items from her customers, making from the fabric
soft sculptures in the nature of stuffed fabric
bears, and then returning the finished bears to
the customers. This was confirmed in applicant’s
response dated May 18, 2007, in which copies of
both sides of applicant’s card submitted March
12, 2007, were submitted. The reverse side of
the card states “I’m only a bear, I’m made out of
clothes from someone so dear who from loving
memory will always be here, so when you hug me up
close to you … just remember _______ loved you
too!” Applicant then submitted April 1, 2007, an
advertisement featuring a photograph of a bear
made with striped fabric and a testimonial. Along
with the picture and testimonial applicant
explained that the bears were made “using fabrics
associated with deceased persons to clothe [ ]
stuffed bear[s].” (Applicant’s response dated
April 1, 2007, proposed recitation of goods).
Applicant further stated that her “customers will
send [her] clothing from, usually a deceased
person they want to remember” and applicant will
“dress the polyester filled bears with the
Ser. No. 77011826
3
clothing or articles submitted.” (Applicant’s
response dated April 21, 2007, pg. 1, pars. 6
&7).

Applicant then submitted July 19, 2007, an
internet advertisement … showing stuffed fabric
bears in a variety of fabric coverings. Finally,
applicant submitted November 25, 2007, eight
pictures of stuffed fabric bears each composed
with a different fabric design, which did not
show the mark MIRACLE BEAR in use in commerce.

The examining attorney contends that “Applicant’s
bears are the result of a custom service provided by
applicant. Without the service the bears would not exist.”
He states that “[t]he stuffed fabric bears produced by
applicant are not fungible. Each bear produced is unique
and desired by only one customer. Correspondingly,
applicant’s stuffed fabric bears are not goods or
commodities in trade because the stuffed fabric bears are
the essence of applicant’s service and are unique to each
customer.” (Brief)
The examining attorney contends that this case is
analogous to In re Shareholders Data Corporation, 181 USPQ
722 (CCPA, 1974). In that case, the Court noted that
applicant’s financial reporting services were in the form
of customized portfolio reports sent to customers. The
Court concluded that the reports were the “essence” of
applicant’s services, not “goods in trade”; that the
reports had no independent value apart from the services
Ser. No. 77011826
4
provided. The examining attorney argues that, in the case
before us, “applicant custom makes fabric bears for either
the enjoyment or consolation of particular customers, that
is, those who submit to applicant keepsake fabrics of loved
ones.”
Applicant contends that, unlike the cases cited by the
examining attorney, her goods are not merely incidental to
a service. Applicant notes that in each of the cited
cases, the purported goods were all items that were merely
adjuncts to the offered services and not sold separately.
Applicant states that, in this case, the bears are “a
result of an arm’s length order and sale of goods
manufactured, tagged and shipped in commerce by applicant.”
(Brief.) Applicant notes that the bears and the clothing
for the bears are all identical; they differ only by the
fabric, supplied by the customer, from which the clothing
is made. Applicant contends that this is no different from
ordering a washing machine of a certain color or an
automobile with certain features. Applicant notes that the
tag affixed to each bear is also identical, with a blank
space to fill in the name of a loved one.
Applicant argues that, even if she may also render a
service, the bears are not merely incidental to any such
Ser. No. 77011826
5
service and they constitute goods identified by the mark
MIRACLE BEAR in their own right.
The term “trademark,” as defined in the relevant part
of Section 45 of the Trademark Act, means “any word, name,
symbol, or device, or any combination thereof used by a
person to identify and distinguish his or her goods,
including a unique product, from those manufactured or sold
by others and to indicate the source of the goods, even if
that source is unknown.” A critical element in determining
whether a term is a trademark is the impression the term
makes on the relevant public. To determine what the
perception of a term is, we must look to the specimens of
record which show how the term is used in the marketplace.
In re Walker Research, Inc., 228 USPQ 691 (TTAB 1986).
In the case before us, the record includes a specimen
as well as other examples of applicant’s use of the mark,
her bears and her website. The examining attorney has not
argued that the specimen of use is not a good trademark
specimen; rather, that the record shows that applicant
renders services rather than sells goods. In any event, we
find that the specimen is a good trademark specimen. The
specimen consists of a tag and a photograph shows the tag
affixed to a bear. Another photograph shows numerous bears
with tags. The bears are identical but for the fabric from
Ser. No. 77011826
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which the bears and/or their jackets are made. As noted
previously, the tag is folded and, on its front, has the
words MIRACLE BEAR within a heart. The back of the tag
lists “Tynsy’s Miracle Bears” with an address and phone
number; and the inside of the folded tag contains the
statement “I’m only a bear, I’m made out of clothes from
someone so dear who from loving memory will always be here,
so when you hug me up close to you … just remember
____________ loved you too.”
We conclude that the evidence supports the finding
that the bears are goods in trade and they are identified
by the trademark MIRACLE BEAR. Everything about these
bears is “stock” or “identical” except for the fact that,
when she receives an order for a bear, applicant also
receives fabric that she uses to make the bear or a jacket
for the bear. While the bears are individualized in this
way for the customer, all the bears are otherwise the same.
The bear itself has a set cost and it is this object that
is being bought.
Decision: The refusal to register is reversed.