Virgel M. Allen

Trademark Trial and Appeal Board

Jul 31, 2008

No. 78240344 (T.T.A.B. Jul. 31, 2008)

Mailed:
July 31, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Virgel M. Allen
________

Serial No. 78240344
_______

Virgel M. Allen, pro se.1

Howard Smiga, Trademark Examining Attorney, Law Office 102
(Thomas V. Shaw, Managing Attorney)
_______

Before Walsh, Cataldo and Wellington, Administrative
Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Virgel M. Allen, an individual, has appealed from the
final refusal of the USPTO examining attorney to register
the mark LIFETIME WARRANTY for “clothing, namely,
bodysuits, caps, cardigans, coats, dresses, hats, hosiery,

1 Applicant’s appeal brief was filed by counsel for applicant at
the time, Karla Shippey of Law Offices of Karla Shippey.
Pursuant to the Board’s orders dated June 5, 2007 and August 9,
2007, Ms. Shippey has withdrawn as counsel of record in this case
and applicant is representing himself.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78240344
2
jackets, jeans, jumpsuits, motorcycle gloves, overalls,
pajamas, pants, shirts, pull-overs, skirts, shoes, shorts,
slacks, ski gloves, socks, suits, sweatshirts, sweatpants,
sweatshorts, sweatsuits, swimwear, sweaters, t-shirts, tank
tops, tops, trousers, undergarments and vests.”2
Registration has been refused pursuant to Section 2(e)(1)
of the Trademark Act, 15 U.S.C. §1052(e)(1), on the ground
that applicant’s mark is merely descriptive of his
identified goods.
The appeal has been fully briefed.3 We affirm the
refusal.
It is the examining attorney’s position that “the
prospective purchaser of such goods, i.e., a purchaser of
clothing – will have no problem determining that LIFETIME
WARRANTY relates to clothing which features a guarantee
that the product would be replaced or exchanged no matter
the condition.” Brief, (unnumbered) p. 11. In support of
his position, the examining attorney has made of record

2 Application Serial No. 78240344, filed April 21, 2003, based
on Section 1(b) of the Trademark Act (intent-to-use).
3 An oral hearing was requested by applicant and was scheduled
by the Board for May 15, 2008. However, the hearing did not take
place because, without any explanation, applicant (or counsel for
applicant) did not appear on the scheduled date.

Ser. No. 78240344
3
definitions of the terms “lifetime” and “warranty.” We
take notice of the following definitions:4
Lifetime: the duration of the existence of a living
being (as a person or an animal) or a thing (as a star
or a subatomic particle)

Warranty: a usually written guarantee of the
integrity of a product and of the maker's
responsibility for the repair or replacement of
defective parts.

The examining attorney also attached internet evidence
regarding third-party usage of the term “lifetime
warranty.”5 This evidence essentially comprises
advertisements wherein the term “lifetime warranty” is used
by the advertisers to tout the quality of their goods.
Because the examining attorney only attached one page from
each website, the exact nature or purpose of the goods
being advertised is not always clear. However, we are able
to discern that the term is used on a variety of advertised
goods which include: hand and power tools, knives,
telecommunications hardware, a “parasite zapper”, wireless

4 The American Heritage Dictionary of the English Language:
Fourth Edition (2000). It is well settled that the Board may
take judicial notice of dictionary definitions. See, e.g.,
Hancock v. American Steel & Wire Co. of New Jersey, 203 F.2d 737,
97 USPQ 330, 332 (CCPA 1953); University of Notre Dame du Lac v.
J.C. Gourmet Food Imports Co., Inc., 213 USPQ 594, 596 (TTAB
1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); and
Marcal Paper Mills, Inc. v. American Can Co., 212 USPQ 852, 860
n.7 (TTAB 1981). We note these definitions are essentially the
same as those attached by the examining attorney to the Office
Action dated September 16, 2003.
5 Attached to Office Action March 4, 2005.
Ser. No. 78240344
4
dog fences, vision-related apparatus, carrying cases for
portable electronics, bird feeders, furniture, windows, and
computer memory products.
The examining attorney also relies on the following
statement made by applicant during the prosecution of his
application in describing his goods6:
[T]he Applicant's products are not "warranted for the
life of the product." Rather, a consumer who buys the
goods is additionally and simultaneously buying
basically a right of exchange-not a warranty. At a
date after the initial sale, the consumer may exchange
the initial product for a similar product of similar
quality but having a different design on it-regardless
of the condition of the initial product at the time of
the exchange. The consumer can select the design from
among a portfolio of designs offered, and the consumer
then obtains a brand new product with a new design and
pays only for the cost of the design applied. The
consumer is allowed to make this exchange any number
of times during the consumer's lifetime regardless of
the condition of the product exchanged.

[Emphasis added by the Examining Attorney in his Brief
at (unnumbered) p. 11].

Applicant, on the other hand, argues that his mark is
not descriptive when used in connection with clothing.
Applicant asserts that the legal resource, Black’s Law
Dictionary, does not provide a definition for “lifetime
warranty,” but acknowledges that the term is used with
respect to certain goods. However, applicant puts forth
that “lifetime warranty” has no significance to consumers

6 Applicant’s response (dated February 3, 2004) to Office Action.
Ser. No. 78240344
5
of textiles and clothing because such goods are not
“durable goods,” i.e., goods designed to be used repeatedly
over a long period. Applicant explains that “[t]he nature
of goods in this [clothing] industry is that they have a
relatively short life span...[and] it has not made economic
sense, and therefore this term has no meaning for the
average consumer of clothing and textile.” Brief, p. 2.
As to others’ use of the term, he states that the “only
significance of the term ‘LIFETIME WARRANTY’ to the average
consumer of goods in other industries and trades that use
this term is to satisfy the consumer that the products will
be replaced if defective or worn out before the period of
warranty expires.” Id., p. 5 (emphasis in original).
Applicant counters that the internet evidence submitted by
the examining attorney showing third-party use of the term
“lifetime warranty” actually “underscore[s] the fact that
this term is used other than for textile and clothing.”
Id. at p. 4. And, as a result, applicant argues that his
mark “evokes a commercial impression previously unknown in
the textile and clothing industry” and that consumers are
“surprised and curious about the meaning because it is
incongruous when applied to Applicant’s goods.” Id. at p.
8.
Ser. No. 78240344
6
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1), if it forthwith
conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the
goods or services. In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 217-18 (CCPA 1978). A term need not
immediately convey an idea of each and every specific
feature of the applicant’s goods or services in order to be
considered to be merely descriptive; rather, it is
sufficient that the term describes one significant
attribute, function or property of the goods or services.
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is
merely descriptive is determined not in the abstract, but
in relation to the goods or services for which registration
is sought, the context in which it is being used on or in
connection with the goods or services, and the possible
significance that the term would have to the average
purchaser of the goods or services because of the manner of
its use; that a term may have other meanings in different
contexts is not controlling. In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979).
Ser. No. 78240344
7
Neither the examining attorney nor applicant
introduced a definition of the phrase “lifetime warranty,”
and the Board has been unable to locate a definition upon
which we may take judicial notice. Nonetheless, based on
the definitions of the terms “lifetime” and “warranty,” as
well as the evidence of third-party use, we conclude that a
“lifetime warranty” is used to describe some level of
guarantee of the integrity or quality of a product for a
period of time and that there is some degree of
responsibility of the seller to repair or replace the
product. The details of the actual warranty provided may
differ; for example, the internet evidence submitted by the
examining attorney demonstrates that a “lifetime warranty”
may have any one of the following possible meanings:
The one-piece seamless aluminum roof comes with a
Lifetime Warranty to the original owner and the roof
material shall be free from rust through, corrosion,
wear through, and leakage.
[www.carmate-trailers.com]

SOG’s Lifetime Warranty...All SOG products are
guaranteed against defects in workmanship and
materials through the life of the original owner.
[www.sogknives.com]

Connect Tech Inc. provides a Lifetime Warranty for all
Connect Tech Inc. hardware product and warrants that
it is to be in good working order for the product’s
lifetime from the date of purchase...
[www.connecttech.com]

Ser. No. 78240344
8
Life Time Warranty & Service Agreement...Smith
Equipment will repair or replace any Lifetime torch
for as long as you own it FREE.
[www.smithequipment.com]

CRAFTSMAN hand tools have a Lifetime Warranty...they
are guaranteed forever...unconditionally, no questions
asked. If one should ever fail to give you complete
satisfaction, Sears will replace it, free of charge.
[www.sears.com]

In the context of the goods identified in the
application, i.e., a wide variety of clothing articles, we
conclude that phrase “lifetime warranty” will be readily
understood by consumers as denoting some guarantee from the
seller as to the integrity or quality of the clothes for a
certain period of time. Even if (as applicant contends)
clothes wear quickly and have such a short life span, we
are unconvinced that his mark LIFETIME WARRANTY is somehow
incongruous with the idea of providing a “lifetime
warranty” on such goods. We see no reason why consumers
will not believe that they are receiving some guarantee as
to the quality of the clothes upon viewing the mark
LIFETIME WARRANTY. Applicant’s argument is also belied by
his own statement that he intends to allow exchanges of the
clothes during the consumer’s lifetime. And, although his
warranty may differ from other warranties inasmuch as he
intends to allow for exchanges for reasons other than
defects, his mark LIFETIME WARRANTY would still be readily
Ser. No. 78240344
9
perceived by consumers of clothes as describing a key
feature or characteristic of the clothes, i.e., that they
are being sold with a guarantee.
For the aforementioned reasons, we find that LIFETIME
WARRANTY merely describes the goods identified in the
subject application.
Decision: The refusal of registration is affirmed.