WildlifeResearch Center, Inc.

Trademark Trial and Appeal Board

Jul 20, 2006

No. 78444661 (T.T.A.B. Jul. 20, 2006)

Mailed:
July 20, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Wildlife Research Center, Inc.
________

Serial No. 78444661
_______

Gerald E. Helget of Briggs and Morgan, P.A. for Wildlife
Research Center, Inc.

Martha L. Fromm, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
_______

Before Quinn, Grendel and Walsh, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

Applicant seeks registration on the Supplemental
Register of the mark DOE IN ESTRUS (in standard character
form) for Class 28 goods identified in the application as
“buck lures and doe scents used in hunting.”1

1 Serial No. 78444661, filed July 1, 2004. The application is
based on use in commerce under Trademark Act Section 1(a), 15
U.S.C. §1051(a), and June 1, 1999 is alleged to be the date of
first use of the mark anywhere and the date of first use of the
mark in commerce. As originally filed, the application sought
registration of the mark on the Principal Register. After the
Trademark Examining Attorney issued a first Office action
THIS OPINION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78444661
2
At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register applicant’s mark on
the Supplemental Register on the ground that it is generic
and therefore incapable of functioning as a mark for the
identified goods. Trademark Act Section 23, 15 U.S.C.
§1091.
Applicant and the Trademark Examining Attorney filed
main appeal briefs. No reply brief was filed, and no oral
hearing was requested. We affirm the refusal to register.
To be registrable on the Supplemental Register, the
matter sought to be registered must be “capable of
distinguishing applicant’s goods or services.” Trademark
Act Sections 23(a), 23(c). “Generic terms are common names
that the relevant purchasing public understands primarily
as describing the genus of goods or services being sold.
They are by definition incapable of indicating a particular
source of the goods or services.” In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed.
Cir. 2001)(citations omitted). Because they are incapable
of identifying source, generic terms are not registrable on
the Supplemental Register.

refusing registration on the ground of mere descriptiveness under
Trademark Act Section 2(e)(1), applicant amended the application
to one seeking registration on the Supplemental Register.

Ser. No. 78444661
3
Our primary reviewing court has stated:

The determination of whether a mark is generic
is made according to a two-part inquiry:
“First, what is the genus of the goods or
services at issue? Second, is the term sought
to be registered ... understood by the relevant
purchasing public primarily to refer to that
genus of goods or services?”

In re Dial-A-Mattress Operating Corp., supra, 57 USPQ2d at
1810, quoting from H. Marvin Ginn Corp. v. Int’l Ass’n of
Fire Chiefs, Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530
(Fed. Cir. 1986). The Office bears the burden of
establishing genericness based on clear evidence of generic
use. In re American Fertility Society, 188 F.3d 1341, 51
USPQ2d 1832 (Fed. Cir. 1999). “Any competent source
suffices to show the relevant purchasing public’s
understanding of a contested term, including purchaser
testimony, consumer surveys, dictionary definitions, trade
journals, newspapers and other publications.” In re Dial-
A-Mattress Operating Corp., supra, 57 USPQ2d at 1810.
Where (as in this case) the matter sought to be registered
is a phrase (rather than a compound word), the Office must
provide more than mere dictionary definitions showing the
genericness of the component words; “it must conduct an
inquiry into ‘the meaning of the disputed phrase as a
Ser. No. 78444661
4
whole.’” Id., quoting from In re American Fertility
Society, supra, 51 USPQ2d at 1836.
Our analysis begins with a determination of the genus
of the services at issue. See H. Marvin Ginn, supra. We
find in this case that the genus of services is
commensurate with applicant’s identification of goods in
the application, i.e., “buck lures and doe scents used in
hunting.”
We next must determine whether the purchasing public
understands DOE IN ESTRUS to refer to the genus of services
at issue. See H. Marvin Ginn, supra. The Trademark
Examining Attorney has made of record numerous excerpted
articles from the NEXIS database, which show that “doe in
estrus” is used to refer to a particular type of buck lure
and doe scent used by deer hunters. For example (emphasis
added):

I found active sign on a ridge that turned out to
be from the same buck, and brought him in with
fresh doe-in-estrus and a few deep grunts. I
wound up taking him on Thanksgiving.
Bowhunter, December 1, 2005;

Myriad commercial urine scents with names such as
Tink’s 69 or Code Blue are bought by hunters
trying to fool a buck’s nose with doe-in-estrus
or dominant-buck products.
The News & Observer (Raleigh, NC), November 13,
2003;

Ser. No. 78444661
5
Also in my pack are rope, first aid supplies, a
flashlight, a down jacket, a blaze-orange
balaclava, a compass, matches, doe-in-estrus
scent, wicks to disperse the scent, a Thermos of
coffee, ...
Star Tribune (Minneapolis, MN), November 14,
2004;

When the rut hits, a doe-in-estrus lure and a
dominant buck urine should do the trick.
The Daily Journal (Vineland, NJ), October 24,
2002;

...aren’t ordinarily kept in such proximity, but
deer farmed for hunting-preserve brood stock, or
for collection of doe-in-estrus hunting scents,
usually are.
Charleston Daily Mail (West Virginia), April 16,
2002;

I recommend “doe in heat” or “doe in estrus”
scents, or scents of this kind. I’ll just put
some on the rag or small towel that I drag behind
me...
Star Tribune (Minneapolis, MN), October 28, 2001;

Ekhoff also had a scenting advantage, with a
packet of fresh-made doe-in-estrus odor hanging
halfway up his high 25-foot stand.
Chicago Tribune, December 1, 1999;

Doe in estrus scents are popular buck attractants
used by archers.
Wausau Daily Herald (Wausau, WI), November 4,
1999;

He put out his attractor scents, doe in estrus
and buck lure, and tried rattling to simulate the
sound of bucks fighting.
Columbus Dispatch (Ohio), November 19, 1996; and

...stick to rake the ground bare. Hang a 35-mm
film canister stuffed with sponge above the
scrape and fill with doe in estrus scent.
Birmingham News (Alabama), January 15, 1995;

Ser. No. 78444661
6
The Trademark Examining Attorney also has made of
record numerous printouts from Internet web pages showing
generic use of “doe in estrus” to refer to a type of lure
or scent. For example (emphasis added):

Many years ago there were dozens of doe-in-
estrus, buck-in-rut, and other deer scents on the
market. All were heavily advertised, touted
highly, and I used many while deer hunting.
www.illinoiswaters.net;

A deer lure is a substance that’s made and
designed to attract deer. In other words, when
the buck smells the lure, he’s supposed to come
in looking for whatever gives off that odor. For
example, a lure like doe-in-estrus is produced
for the hunter to put around his stand to
hopefully cause a buck to come into the area
searching for the estrous doe that’s urinated in
that spot.
www.nightwawkpublications.com;

Deer scent is a confidence builder in whitetails.
It makes them believe there are, or were, other
deer in the area. Tarsal gland scents may
trigger a territorial response in an aggressive
buck defending his territory in pre-rut and rut.
Doe-in-estrus scent may also appeal to a buck’s
sexual urges and bring him in for an easy shot.
www.hunterspec.com;

This is also a great time to experiment with doe-
in-estrus scents. Find a likely troll zone along
a field edge and lay a scent trail right toward
your tree.
www.northamericanwhitetail.com;

I usually didn’t have much confidence in deer
scents and lures. However, I had to make this
buck move off the logging road at the right angle
to keep him from smelling me. Then he had to
offer me a shot. I took two strips of cloth,
dipped them in doe-in-estrus lure and tied one
Ser. No. 78444661
7
rag to each of my rubber boots. ... As soon as
I climbed up in my tree, two small bucks came
into the scrape, picked up the doe-in-estrus
scent and followed it to under my stand - just
as though I had them on a halter leading them
along.
www.nighthawkpublications.com;

Attractant scents are effective because they take
advantage of a deer’s inclination to investigate
any urine smell he notices. Doe-in-estrus scent
is the most commonly used attractant and is
intended to attract bucks who are in rut. Many
hunters sometimes will put scent canisters near
their stand and make scrapes by clearing away
some grass and leaves beneath an overhanging
branch. Doe-in-estrus scent is then applied into
the faked scrapes to attract bucks.
www.gamecalls.net;

Carefully doctoring the cleared area with doe-in-
estrus scent or buck urine and tarsal gland scent
can attract deer, as can creating artificial
scrapes near core doe areas.
www.fieldandstream.com;

One evening, two years ago, a few days before
deer season, I had finished feeding the animals
and milking the goats and decided to lay a doe-
in-estrus scent trail before I ran out of
daylight. It was dark by the time I finished so
I went to spotlight our alfalfa field with me
flashlight. I put the doe-in-estrus bottle in my
cover-alls’ pocket and shone the light across the
field.
www.womenhunters.com;

The Code Blue Double Trail Drag System has two
drag rags so you can simulate a buck trailing a
hot doe by combining dominant buck and doe-in-
estrus lures or just double your scent dispersal.
www.cabelas.com; and

With a sharp stick or rock, scratch away all
vegetation down to bare dirt in a 30-inch circle
directly under the tips of the overhead branch.
Ser. No. 78444661
8
Pour doe—in-estrus lure or buck urine unto the
scrape.
www.imoutdoors.com

Several of the Internet pages appear to be advertising
references to applicant’s products, and they use “doe in
estrus” generically in connection with the products. For
example:

Ah, the onset of autumn... Time to gear up for
deer season! Our shopping list includes 101
items, big and small, to help you nail a big ‘un.
... 7. Wildlife Research Center Excite - Super-
thick Excite looks more like molasses, but it’s
concentrated doe-in-estrus scent.
The American Hunter, October 2003 (from
www.findarticles.com);

Wildlife Research Center® Excite™ is an extra-
concentrated doe in estrus scent that’s so thick
it flows much like honey.
www.wildernessoutpost.com;

Wildlife Research Big Game Lures – Special Golden
Estrus – 24.00
Made of the highest-quality urines and all-
natural ingredients. Packed in amber glass
bottles to retain potency and freshness. Special
Golden Estrus? – The freshest premium doe-in-
estrus scent available. Collected only weeks
before it’s shipped to you.
www.muddybootsshop.com;

We find that this evidence clearly establishes that
“doe in estrus” would be recognized by the purchasing
public as referring to a type or category of buck lure and
Ser. No. 78444661
9
doe scent, and that it therefore is generic for applicant’s
goods.
Applicant argues, however, that:

All of the examples cited by the Office Action
show the use of the term “doe-in-estrus” as an
adjective to modify a noun such as “scent” or
“product” or “lure”, etc. Thus, the term “doe-
in-estrus” is not used by the buying public as
the name of the product, but as a descriptive
term modifying the name of the product. ...the
mere fact that a buyer calls for or orders a
product by a term does not evidence that that
term is generic. This is especially the case
where the term is used as an adjective, as it
cannot possibly be the name of the product. The
articles cited by the Office Action merely show
the use of the term “doe-in-estrus” as a species
of a larger genus, in fact, of several genera
(scents, lures, products, etc.)

Applicant’s brief at 2 (emphasis in original).

We are not persuaded by this argument. As noted by
Professor McCarthy, “[a] rule of thumb sometimes forwarded
as distinguishing a generic name from a descriptive term is
that generic names are nouns and descriptive terms are
adjectives. However, this ‘part of speech’ test does not
accurately describe the case law results.” J. Thomas
McCarthy, McCarthy on Trademarks and Unfair Competition
§12:10 (4th ed. updated June 2006). See, e.g., In re Sun
Oil Co., 426 F.2d 401, 165 USPQ 718 (CCPA
1970)(CUSTOMBLENDED generic for gasoline); In re Helena
Ser. No. 78444661
10
Rubinstein, Inc., 410 F.2d 438, 161 USPQ 606 (CCPA
1969)(PASTEURIZED generic for face cream); and In re
Central Sprinkler Co., 49 USPQ2d 1194 (TTAB 1998)(ATTIC
generic for automatic sprinklers for fire protection).
In this case, the evidence of record establishes that
DOE IN ESTRUS, whether viewed as a noun or an adjective, is
generic as applied to applicant’s goods. Applicant’s
arguments to the contrary are wholly unpersuasive. We
therefore find that DOE IN ESTRUS is incapable of
distinguishing applicant’s goods, and that it therefore is
not registrable on the Supplemental Register.

Decision: The refusal to register on the Supplemental
Register is affirmed.