Western Family Foods, Inc.

Trademark Trial and Appeal Board

Sep 19, 2008

No. 78745688 (T.T.A.B. Sep. 19, 2008)

Mailed: September 19, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Western Family Foods, Inc.
________

Serial No. 78745688
_______

David P. Cooper of Kolisch Hartwell, P.C. for Western
Family Foods, Inc.

Gina Fink, Trademark Examining Attorney, Law Office 109
(Dan Vavonese, Managing Attorney).
_______

Before Quinn, Grendel and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Western Family Foods, Inc. has applied to register on
the Principal Register the mark POOCH WRAPS in standard
characters for “dog food and pet treats” in International
Class 31.1
The trademark examining attorney has refused
registration under Section 2(e)(1) of the Trademark Act on

1 Application Serial No. 78745688 was filed on November 2, 2005,
based on applicant’s assertion of its bona fide intent to use the
mark in commerce on the recited goods.

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 78745688
2
the ground that applicant’s mark is merely descriptive of a
feature or quality of applicant’s goods.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed main briefs and
applicant filed a reply brief.
Evidentiary Issues
Before turning to the substantive ground for refusal,
we note that applicant has submitted three exhibits with
its main brief. Exhibits A consists of materials that
previously were made of record by applicant during
prosecution of the involved application. As such, the
materials comprising Exhibits A are at best duplicative and
cumulative of evidence timely made of record, and thus need
not and should not be resubmitted. See Life Zone, Inc. v.
Middleman Group, Inc., ___USPQ2d___, (TTAB July 15, 2008).
Exhibit B consists of the following dictionary
definition of POOCH: “to bulge; protrude. Used with out:
“a little roll of flab that pooches out above the tight
waists of their spandex trunks” (Megan Rosenfeld,
Washington Post March 25, 1992).2 We hereby take judicial
notice of this definition.3

2 The American Heritage Dictionary of the English Language, (4th
Ed. 2000), retrieved from the Internet website Bartleby.com.
3 The Board may take judicial notice of dictionary definitions,
including online dictionaries which exist in printed format. See
In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB
Ser No. 78745688
3
Exhibit C assertedly consists of copies of third-party
registrations and applications that were not previously
made of record. We agree with the examining attorney that
the materials comprising Exhibit C submitted with
applicant’s appeal brief are untimely, and they have not
been considered. See Trademark Rule 2.142(d) (the record
in the application should be complete prior to the filing
of an appeal). We note, in any event, that such materials
are illegible in their entirety.
Issue on Appeal
As noted above, the issue on appeal in this case is
whether applicant’s mark, POOCH WRAPS, merely describes a
function, feature or characteristic of the goods recited in
the involved application.
Applicant contends that its proposed mark is
suggestive for “at least three reasons” (brief, p. 3).
First, consumers will have to think because the
mark consists of a phrase that is unfamiliar, or
has not been used, with respect to “dog food and
pet treats.” Consumers will not be familiar with
dog food and pet treats being called “POOCH
WRAPS.” Second, and on a related note, consumers
must exercise multi-step reasoning to understand
that POOCH WRAPS somehow suggests “dog food and
pet treats” because POOCH WRAPS is capable of
connoting various products in addition to
Applicant’s products. Third, POOCH WRAPS is at

2002). See also University of Notre Dame du Lac v. J. C. Gourmet
Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).

Ser No. 78745688
4
least suggestive of “dog food and pet treats”
because it is an incongruous use of individually
descriptive terms.

Applicant further argues that of the “tens of millions of
records available via the Internet, the Examining Attorney
has not presented even one descriptive use of “POOCH WRAPS”
for Applicant’s Class 31 goods.” Applicant asserts that
the lack of such evidence supports its contention that its
mark is suggestive of the recited goods.
In support of its arguments, applicant submitted with
its request for reconsideration advertisements from
commercial Internet webpages displaying the following
designations in connection with goods that differ from
those identified in its application: POTTERY BARN KIDS
BATH TOWEL DOG WRAP “SAMUEL” for a child’s bath wrap;
PAWTECTORS DOG LEG WRAPS for waterproof wraps for a dog’s
legs; SAM’S DOG HUT MALE DOGGIE WRAPS for incontinence pads
for male dogs; and MY FAUX PAWS for bathrobes and wraps for
small dogs.
The examining attorney maintains that the mark merely
describes a feature or quality of the goods. In support of
the refusal, the examining attorney has made of record
dictionary definitions of POOCH and WRAP. According to
Ser No. 78745688
5
these definitions, POOCH may be defined as “(slang) a dog”4
and “WRAP” may be defined, inter alia, as “a flatbread,
such as a tortilla or lavash, rolled around a filling.”5
The examining attorney has further made of record
advertisements retrieved from Internet webpages displaying
the term WRAP used in connection with dog treats. Excerpts
from these webpages follow (emphasis added):
Lick Your Chops TREAT-UMMS Fish & Crab Wraps
Natural Dog Treats 2.5 oz.
Treat-Umms Dog Treats are the latest addition to
the Lick Your Chops family of natural pet
products. These unique and innovative hand made
dog treats use only the following natural
ingredients and nothing else: chicken breast,
sweet potato, cheese, crab, rice, liver and
codfish. These treats come in unique forms:
dumbbells, strips and wraps.
(www.herbtrader.com)

Gourmet Wraps
Created for the truly health-conscious pet owner.
Premium tasty wraps made with all-natural
ingredients. Glucosamine and chondroitin are
added to help keep your dog’s joints healthy.
Great tasting treat you’ll feel good about
giving!
(www.valleyvet.com)

Pooch Canada
There’s no better way to tell puppy you love him
than with a special dog treat. That’s why Pooch
Canada Pet Supplies carries a complete line of
yummy dog treats and chews. Chocolick chips,
chewy soy dog treats and yummy potato & chicken

4 The American Heritage Dictionary of the English Language, (4th
Ed. 2000), retrieved from the Internet website Bartleby.com.
5 Id.
Ser No. 78745688
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wraps will let your dog know just how special you
think he is.
(www.pooch.ca)

Cadet Gourmet Select Sweet Potato & Chicken Wraps
are nutritious reward treats for dogs that are
high in vitamins, minerals and protein.
Resealable package helps keep product fresh.
(www.pooch.ca).

Finally, the examining attorney made of record copies of
third-party registrations in which the terms POOCH or WRAP
are disclaimed in marks on the Principal Register or
registered on the Supplemental Register as applied to goods
similar to those recited in the involved application.
These registrations include:
Registration No. 2316718 on the Principal Register for
the mark POOCH PASSIONS with POOCH disclaimed for “edible
treats for dogs and cats;”
Registration No. 2532902 on the Principal Register for
the mark HEALTHYPOOCH.COM and design with HEALTHYPOOCH.COM
disclaimed for “non-medicated, holistic food and edible
treats for cats, dogs, and other pets;”
Registration No. 2841880 on the Supplemental Register
for the mark POOCH POPS with POPS disclaimed for “flavored
liquid sold in packages to be frozen therein for pets for
making pet ice cream; and frozen confections for pets;”
Registration No. 3003238 on the Principal Register for
Ser No. 78745688
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the mark POOCH PASTRY SHOP with POOCH disclaimed for
“foodstuffs for animals, namely dog treats;”
Registration No. 2795932 on the Principal Register for
the mark WEENIE WRAPS with WRAPS disclaimed for “extruded,
baked, edible treats for dogs;”
Registration No. 3259608 on the Supplemental Register
for the mark MEATY WRAPS for “dog biscuits;” and
Registration No. 3263577 on the Supplemental Register
for the mark DOGGIE WRAPS for “dog treats.”
It is well settled that a term is considered to be
merely descriptive of goods and/or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality, feature or
characteristic thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods and/or services. See Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052. See also In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
It is not necessary that a term describe all of the
properties or functions of the goods and/or services in
order for it to be considered to be merely descriptive
thereof; rather, it is sufficient if the term describes a
significant attribute or feature about them. Moreover,
whether a term is merely descriptive is determined not in
Ser No. 78745688
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the abstract, but in relation to the goods and/or services
for which registration is sought. See In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). Thus, “[w]hether consumers
could guess what the product is from consideration of the
mark alone is not the test.” In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985).
In the instant case, the evidence made of record by
the examining attorney supports a finding that, as applied
to applicant’s “dog food and pet treats,” the term POOCH
WRAPS would immediately describe, without conjecture or
speculation, a significant characteristic or feature of
such goods, namely, that they are treats or food for a dog
in the nature of or resembling a flat bread rolled around a
filling. The above-referenced dictionary definitions
establish that POOCH WRAPS merely describes filled flat
breads – WRAPS – intended for use as food or a treat for a
dog – or POOCH. Applicant’s goods are “dog food and pet
treats.” Thus, as defined, POOCH WRAPS merely describes a
central function, feature or characteristic of the recited
goods.
In addition, the Internet advertisements submitted by
the examining attorney establish that various entities use
the term WRAPS to describe their pet food and pet treats.
As such, this evidence supports a finding that consumers
Ser No. 78745688
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are accustomed to encountering the term WRAPS as used to
describe pet food and treats. Material obtained from the
Internet is acceptable in ex parte proceedings as evidence
of potential public exposure to a term. See In re Fitch
IBCA, Inc., 64 USPQ2d 1058 (TTAB 2002).
Finally, the third-party registrations submitted by
the examining attorney demonstrate that the terms POOCH and
WRAPS are subject to a disclaimer requirement or
registration on the Supplemental Register in the context of
various marks applied to pet food and pet treats. It is
settled that each case must be decided on its own set of
facts, and we are not privy to the facts involved with
these registrations. See In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). See also In
re Best Software Inc., 58 USPQ2d 1314 (TTAB 2001).
Nonetheless, these third-party registrations tend to
provide further support for the examining attorney’s
position that POOCH WRAPS is merely descriptive in the
context of applicant’s goods.
We are not persuaded by applicant’s argument that
consumers encountering POOCH WRAPS must engage in a multi-
step analysis to understand that such designation merely
describes dog food and treats that resemble wraps. We note
applicant’s statement that its mark comprises “individually
Ser No. 78745688
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descriptive terms” (brief, p. 3), but are not we persuaded
that POOCH WRAPS is incongruous as applied to applicant’s
goods which, as identified, would include edible wraps for
dogs. While a combination of descriptive terms may be
registrable if the composite creates a unitary mark with a
separate, nondescriptive meaning, In re Colonial Stores,
Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968), the mere
combination of descriptive words does not necessarily
create a nondescriptive word or phrase. See In re
Associated Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB
1988). If each component retains its descriptive
significance in relation to the goods or services, the
combination results in a composite that is itself
descriptive. See In re Oppedahl & Larson LLP, 373 F.3d
1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004). Based upon
the evidence of record, we find that POOCH WRAPS
immediately describes a feature or characteristic of
applicant’s goods, namely, that they are treats for a pooch
in the shape of a wrap.
Further, we are unpersuaded that because the terms
comprising applicant’s mark have other meanings unrelated
to its goods, POOCH WRAPS is not merely descriptive of its
“dog food and pet treats.” As noted above, whether a term
is merely descriptive is determined not in the abstract,
Ser No. 78745688
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but in relation to the goods and/or services for which
registration is sought. That a term may have other
meanings in different contexts is not controlling. In re
Bright-Crest, supra.
Moreover, we are not persuaded by applicant’s argument
that because POOCH WRAPS has not previously been used in
connection with “dog food and pet treats,” consumers are
unlikely to view the designation as merely describing such
goods. The above evidence demonstrates that the
combination of the descriptive terms POOCH and WRAPS merely
describes applicant’s goods, and that consumers have been
exposed to descriptive use of the individual terms
comprising applicant’s mark in connection with related
goods. Thus, even if applicant is the first and/or at
present the only intended user of the term POOCH WRAPS in
connection with “dog food and pet treats,” it is well
settled that such intended use does not entitle applicant
to the registration thereof where, as here, the term has
been shown to immediately convey only a merely descriptive
significance in the context of applicant’s goods. See,
e.g., In re National Shooting Sports Foundation, Inc., 219
USPQ 1018, 1020 (TTAB 1983); and In re Mark A. Gould, M.D.,
173 USPQ 243, 245 (TTAB 1972). For the same reasons, we
are not persuaded that the absence in the record of this
Ser No. 78745688
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case of Internet evidence showing descriptive use of POOCH
WRAPS compels a finding that the mark is suggestive of
applicant’s goods. As noted above, applicant is not
entitled to registration of a merely descriptive term
simply by virtue of being the first intended user thereof.
See Id.
Finally, we note that applicant’s analysis is
supported by very little evidence. All applicant has
provided is argument regarding what a proposed purchaser
would conclude when confronted with applicant’s mark. See
In re Vsesoyuzny Ordena Trudovogo Krasnogo Znameni, 219
USPQ 69, 70 (TTAB 1983) (assertions in briefs are not
evidence). See also In re Minnetonka, 212 USPQ 772, 777
(TTAB 1981) (determining whether a mark has acquired
distinctiveness is based on the facts as they exist and are
revealed by the evidence in the record at the time the
application is acted upon).
Accordingly, we find that applicant’s mark is merely
descriptive as contemplated by Section 2(e)(1) of the Act.
Decision: The refusal to register is affirmed.