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USFC2006-1135-01
{59C207F6-7E68-401F-824E-B67CC0668ADA}
170850l{32-060227:093423}{022106]
APPELLANT'S
BRIEF
I._NqTED
STATES
COURT
OF APPEALS
FOR
THE
FEDERAL
CIRCUIT
No. 06-1135
(Serial
No. 78/975,330)
IN RE PET FOOD
APPEAL
FROM
PATENT
AND
TRADEMARK
BRIEF
Timothy
D. Pecsenye,
Esquire
David M. Perry, Esquire
BLANK
ROME LLP
One
Logan
Square
Philadelphia.
PA 19103-6998
THE
CEtNWERS,
LLC
UNqTED
STATES
TRADFaMARK
TR/AL
FOR
FEB 2 ] ,.2 5
AND
OFFICE
APPEAL
BOARD
APPELLANT
John M. Whealan,
Solicitor
Nancy
C. Siutter,
Esquire
Esquire
Cynthia
C. Lynch,
Associate
Solicitors
Esquire
(2 ! 5) 569-5500
Anorneys
for Appellmu
P.O. Box
Pet Food
Centers,
Arlington,
LLC
(571)
15667
VA 22215
272-9035
Attorneys
for
United States
Trademark
the Director
Patent amt
Office
of the
CERTIFICATE
Counsel
for
Appellant.
OF
Pet
Food
INTEREST
Centers,
LLC.
certihes
the
following:
1.
2.
The
full
Pet
Food
The
name
caption
name
Centers.
is not
the
applicable.
3.
All
parent
own
10 percent
4.
court
real
real
or more
me
of the
names
of all
law
for
party
or
IIS351.CO1011115121|Sv.I
or are
ROME
represented
by
me
_s
the
party
represented
an),
stock
(if
publicly
of the
by
held
party
named
me
_s:
companies
or amicus
_n the
that
curiae
are:
The
BLANK
amicus
in interest
and
applicable.
the
or
in _nterest)
corporations
by
or agency
party
party
Not
appeared
party
LLC.
of the
Not
represented
of every
firms
and
amicus
now
expected
LLP,
the
represented
to appear
Timothy
partners
D.
in this
Pecsenye,
or associates
that
by
trial
court
David
me
_n the
are.
M.
Perry
TABLE
CERTIFICATE
OF
INTEREST
TABLE
OF
CONTENTS
TABLE
OF
AUTHORITIES
STATEMENT
OF
OF
CONTENTS
....................................
...............................................
..............................................
RELATED
CASES
I.
JURISDICTIONAL
II.
STATEMENT
OF
THE
ISSUE
II1
STATEMENT
OF
THE
CASE
IV.
STATEMENT
OF
FACTS
V.
SUMMARY
VI.
ARGUMENT
THE
_v - v
.............................
STATEMENT
OF
it - III
................................
A.
Standard
B.
The
of
....................................
1
.................................
2
..................................
ARGUMENT
Review
Board's
!.
4
................................
4
Test
2.
First
5
.................................................
Finding
that
PLAY
THINGS
for
Descriptiveness
under
Final
Office
Office
Denial
Action
and
Action
of Request
Finding
Substantial
CONCLUSION
Pet
and
AND
for
7
Act
Section
Food's
Pet
Food's
Reconsideration.
8
Response'
by
Finding
Substantial
13
Response
by
Ftnd_ng
Substantial
19
and
Beyond'
of Descriptiveness
Is Not Supported
Evidence
......................................
STATEMENT
li
I
by
.........................................................
of Descriptiveness
Is Not Supported
Evidence
......................................................
4.
is Merely
Lanham
of Descriptiveness
Is Not Supported
Evidence
............................................................
3.
5
is Reversible
Error
Unsupported
Evidence
..............................................
2(e)(l)
IIS35100i01/11512115v.
1
.........................................................
Descriptive
Substantial
VII.
xl
OF
RELIEF
SOUGHT.
by
28
32
A DDENDU_X'I
......................................................................
CERTIFICATE
PROOF
OF
OF
SERVICE
COMPLIANCE
...................................
.......................................................
ill
|!$351.C0i01/1151211$v.1
33
34
35
TABLE
OF
AUTHORITIES
CASES
Dickinson
v. Zurko.
Hewlett-Packard
Co.
U.S.PQ.2d
1001
Network
System
HQ
I ! l0
(D.
527
U.S.
150
v. Packard
(Fed.
(1999)
Press.
Cir.
2002)
v. Executive
Mass.
1991)
....................
Inc..
281
F.3d
Headquarters,
755
I 1
t57.
Cir.
Registry.
1986)
(C.C.P.A.
In re
Ltd..
Stores.
1968)
204
394
2d
2000)
203
(Fed.
F.3d
820
Cir.
F.2d
In re Nett
(Fed.
F.2d
Cir.
1305,
1987)
1216.
U.S.P.Q.
9
591
549.
157
(T.T.A.B
1979).
U.S.P.Q.
9
382
Corp..
2001)
53
240
8
F.3d
1341.
57
.......................................
U.S.P.Q.2d
1769
6
(Fed.
Cir.
7
3 U.S.P.Q.2d
1009
Products.
Inc..
209
8. 9.
U.S.P.Q.
791
(T.T.A
..................................................................................
Designs.
Cir.
U.S.P.Q
Inc.,
2001)
In re Quik-Print
505,
236
F.3d
1339,
Copy
Shops.
507
(C.C.P.A.
Inc..
616
1980)
ISv.I
l0
B
l0
57
U.S.P.Q.2d
1564
....................................................................
iv
I 1_351 GOIOI/115121
31
818
...............................................................
In re Morton-Norwich
1981)
229
.............................................................................
In re Gvulav.
(Fed.
U.S.P.Q.
Operatin_
1807
In re Gartside.
F.2d
30,
...................................................................
Dial-A-Mattress
U.S.P.Q.
791
U S.P.Q.
215
9. 10. ll.
........................................................
In re Bright-Crest.
In re Colonial
F. Supp.
.................................................
In re
(Fed.
62
6
81 I. 200
& Breakfast
1261.
...............................
In re Abcor
Development
Corp.,
588 F.2d
(Fed.
Cir.
1978)
...................................................
Bed
6
F.2d
523.
12
525,
.................................
205
10
On-Line
56
Careline.
U.S.P.Q
Inc.
2d
In re Oppedahl
1370
(Fed.
v. America
1471
(Fed.
& Larson
Cir
2004)
Online.
Cir.
2000)
Inc..
229
LLP.
373 F.3d
1171,
..................................................
71
5. 6
Recot.
Becton.
(Fed.
Union
Cir.
2000)
Carbide
429
Union
830
Bank
Bank
1129
of Texas.
(5th Cir.
Universal
Camera
v. Ever-Ready.
(1976)
National
F.3d
Inc..
of Texas.
Corp.
§ 1052(e)(1)
28
§ 1295(a)(4)(B)
Laredo.
v. NLRB.
P.Q.2d
1894
6. 7
531
Texas
340
F.2d
366.
cert.
(2004)
1t
v. Un_on
National
R. App.
P. 32(a)(7)(B)
F.C
R. 28(a)(5)
(2005)
U.S
474
(1951)
2d
10
............
6
.................................................
(2004)
Fed.
(2004)
denied.
STATUTES
1. 8
..........................................
FEDERAL
47.5
U.S
Austin.
Texas.
909 F.2d 839,
16 U.S.P.Q.
1990)
...........................................................
15 U.S.C.
F.C.R.
54
8
..........................................................
FEDERAL
U.S.C.
1322,
1420
...............................................................
Corp.
U.S.
214
6
U.S.P.Q.2d
415 F.3d 1293.
75 U.S.P.Q.2d
...............................................................
v. M.C.
1080.
..............................
In re Steeibuildin_o.com.
(Fed.
Cir. 2005)
Inc.
F.3d
(2004)
1
RULES
.........................................
34
...............................................................
1
.....................................................................
vl
MISCELLANEOUS
T.M.E.P.
§ 1209.01(a)
]1835100101/1151211$v.!
(4th
ed.
2005)
.................................
11.
18
STATEMENT
Food
Pursuant
to Federal
Centers.
LLC
(a)
proceeding
any
other
this
submits
Rule
the
appeal
in or
in the
lower
court
or body
appellate
court;
There
court
decision
is no
that
F C.R.
statement
from
was
the
same
47.5
(2004).
Pet
of related
civil
previously
cases:
action
before
or
this
or
and
case
known
to counsel
will
directly
affect
in the
pending
appeal.
vi
IIS_$tC010111151211Sv.I
CASES
47.5.
following
other
other
Court's
Circuit
RELATED
No
(b)
or any
OF
to be
or be directly
pending
affected
_n this
by
I.
Pursuant
(2005).
to Federal
Appellant.
statement
This
1295(a)(4)(B)
§ 1295(a)(4)(B)
Pet
Food
Rule
Centers.
Court
has
jurisdiction
of Title
28
of the
(2004),
Trademark
Trial
registration
of
(b)
The
and
28(a)(5).
LLC.
F.C.R.
submits
pursuant
United
because
Appeal
28(a)(5)
the
following
States
it is an
Board
to Section
with
Code.
28
appeal
from
respect
to an
U.S.C.
a decision
of
application
a trademark.
Trademark
Trial
and
Appeal
Board
decision
appealed
is final.
II.
Is Appellant,
PLAY
Circuit
STATEMENT
of jurisdiction:
(a)
from
JURISDICTIONAL
THINGS.
Lanham
connection
application,
Pet
STATEMENT
OF
Food
LLC's
merely
Act,
15 U.S.C.
with
the
namely,
11_3510010111151211Sv.I
Centers.
descriptive
§ 1052(e)(1)
goods
"pet
identified
treats"?
THE
under
("Pet
Section
(2004),
in
ISSUE
Pet
when
Food's
Food")
trademark.
2(e)(1)
of
used
on
trademark
the
or _n
the
for
III.
This
Trial
and
Section
Appeal
2(e)(l)
PLAY
on
appeal
from
the
Board
("the
Board")
or in connection
March
24,
refused
her
applied
Aoo.
finding
that
timely
response
The
dated
May
Food's
mark.
Reconsideration
initially
classes
28
was divided
request
submitted
Accordingly.
31 only.
Pet
as does
IIg_5100101111512115v.I
for
toys")
January
on
trademark.
Serial
No.
78/975.330
of its
mark.
for
Examining
merely
the
again
- 90.
March
final
Pet
3: 2004.
Pet
by
refusal
submitted
mark
f_led
at A-35
the
15,
response
appeal.
2004.
of
_atA-35-
Aoo.
March
Office
to regtster
Pet
a Request
_atA-192-
of its
Food
I _
registration
Food
based
of Applicant's
9. 2004.
her
on
InitiallY
9, 2003.
rejection.
denied
made
protection
January
use
THINGS.
Attorney
September
descriptive
on
PLAY
for
217.
in both
international
and 31 ("pet
treats"),
Pet Food's
application
20, 2004,
Aoo.
at A-33
- 34, pursuant
to
Food's
this
Food's
dated
Action
November
filed
("pet
on
was
and
at A-147
on
Pet
The
Action
Attorney
Aoo.
Trademark
under
to register
- 17.
Office
3, 2004.
the
a refusal
To overcome
to the
of
treats."
Office
atA-18-25.
CASE
sustaining
registration
mark
Examining
Action
_Having
the
THE
determination
in U.S.
at A-10
by
final
Act
"pet
for
registration
App.
146.
with
2003.
goods.
Lanham
as represented
Food
OF
stems
of the
THINGS.
Pet
on
STATEMENT
a
atA-30-31.
9. 2004.
146.
addressed
class
a
Concurrently
with
submitted
an
Board.
_
November
e__xx
parte
appeal
at A-191.
each
On
to Pet
Food
acknowledged,
2004.
and
for
the
for
Section
2(e)(l).
notified
Pet
to file
Pet
without
42.
with
which
its
Pet
on
Food
for
was
On
was
filed
Attorney's
appeal
filed
its
with
both
Board
Appeal
date
to
was
the
Examining
on
December
response
to
the
refusal
final
January
10,
of
mailed
reconsideration
resumed
with
argument
24,
and
timely
Pet
Food's
under
2005.
with
sixty
Board
on
March
the
matter.
2.
the
days
Board
within
atA-221a.
an oral
May
the
Subsequently.
her
Food
a filing
remanded
mailed
appeal
was
for
Board
request
atA-218.
App.
brief
Examining
2004.
maintaining
its
Trial
accorded
26.
case
Pet
Trademark
atA-219-21.
that
a request
the
its
the
brief.
Food's
The
that
Reconsideration.
Food
the
submission
Attorney
Aoo.
Reconsideration.
with
,4,o0.
Examining
for
November
that
review.
Request
which
Request
8. 2004.
notification
Attorney
the
2005,
reply
the
on
brief
Aoo.
brief
on
was
App.
at A-222
subsequently
at A-243
- 48,
June
2005.
13,
11. 2005.
filed
in response
briefs,
the
Board
IIS35iCO1011il512115v.
found
I
Pet
that
Food's
the
mark,
and
the
PLAY
Examining
THINGS.
to
at A-249
54.
Presented
-
Attorney's
is merely
-
descriptive
when
affirmed
the
decision
dated
appealed
the
used
on
Examining
or in connection
Attorney's
September
decision
IV.
For
nearly
of premium
pet
employed
sought
years.
food.
Pet
as a trademark
its
Trademark
Office
suggestive
and
and
abandoned
having
THINGS.
on
registration
food
fit
for
common
for
PLAY
on
Food
on
pet
the
March
PLAY
its
application
Pet
Food
THINGS
treats
24,
when
Patent
use
use
of the
to this
on
pet
and
adopted
on
its
pet
mark.
Court
to be
and
Having
for
THINGS
consumption,
States
used
t_mely
manufacturer
PLAY
for
THINGS.
appeals
a leading
2003.
for
Food
in its
FACTS
phrase
United
2(e)(l).
9: 2005.
been
the
Pet
and
treats.
PLAY
in support
treats,
the
a form
of
of pet
consumption.
SUMMARY
ordinary
sense
purchasing
to conclude
descriptive
when
surprising,
therefore,
used
that
OF
PLAY
as a trademark
that
the
I$v. 1
THE
ARGUMENT
conditions,
record
it takes
little
THINGS
_s not
on
pet
edible
in this
4
I I $351.C0101/115121
has
unique
- 9
November
OF
treats."
Section
at A-1
coined
with
mark,
toys.
V.
Under
Food
("PTO")
pet
for
Pet
mark
unique
_
Board
"pet
under
STATEMENT
fifty
to register
refusal
9. 2005.
of the
with
case
more
than
merely
treats.
_s bereft
It is not
of
substantial
mark.
the
evidence
PLAY
THINGS,
Ianham
Act.
International
the
from
decision
and
to time
the
something
to
that
is that
play
with
unsupported
reversible
merely
error
upon
by
descriptive
a pet
Standard
This
its
LLP.
factual
373
reviews
findings
feature
"'in
addition
to amuse."
the
evidence
registration
identified
pet
the
and
or
record,
is utterly
basing
function
_ts decision
or
function
to
being
Board
pet
Board's
feature
of
edible.
_s
rendered
of record
of PLAY
toys
by
and
THINGS
a
committed
as being
goods.
ARGUMENT
1171.
for
the
Board's
substantial
1173:71
legal
evidence.
U.S.P.Q.2d
5
11_351.1_)101111512115v.I
is. by
_n
of Review
Court
F.3d
treat.
substantial
refusing
of the
of the
a "'significant
VI.
A.
review
That
or serves
by
"significant
treats
of
as affirmed
that
_n nature,
Food's
2(e)(1)
pet
Attorney.
complimentary
Pet
Section
with
in demonstrating
an alleged
that
under
Examining
unsubstantiated.
goods"
decision
or in connection
the
which,
determination
applicant's
decision
upon
goods"
wholly
on
While
Board's
descriptive
succeeded
time
Food's]
absent
upon
31.
is premised
of [Pet
used
ostensibly
are
the
is merely
when
Class
Board.
treats
to support
determinations
de
In re Oppedahl
1370.
1371
(Fed.
novo
and
& Larson
Cir
2004)
(citin_
57
In re Dial-A-Mattress
U.S.P.Q.2d
1807,
determination
generic
1810
of a mark
continuum.':
f_nding,
this
Court
evidence,
reasonable
person
the
Press.
Inc..
on
reviews
Cir
the
the
might
2001)).
F.3d
The
of
Board's
fact.
1341.
1344.
Board's
of review
accept
that
the
Thus.
asks
62
record
Co
U.S.P.Q.2d
for
whether
evidentiary
1261.
as a factual
of descriptiveness
which
Hewlett-Packard
1265.
Id.
holdino_,
conclusion.
F.3d
240
"fanciful-suggestive-descriptive-
a standard
Board's
281
(Fed.
Corp.,
id._..=,is a question
substantial
supports
Operatino_
a
adequately
v. Packard
1001.
1003
(Fed
Clr
2002).
As
this
Court
"involves
examination
evidence
that
On-Line
86.
56
Camera
has
of the
both
justifies
Careline.
Inc.
U.S.P.Q.2d
Corp.
1471,
v. America
1475
(Fed.
(1999)
a record-based
F.3d
1322,
support
factual
1327.
by
Cir.
(holding
"substantial
U.S.P.Q.2d
6
115351001011|151211$_.1
229
court
1894,
1080.
1085
Universal
see
reviews
evidence."
Recot,
account
decision.""
F.3d
(citin_o
(1951));
evidence
_nto
an agency's
Inc..
2000)
substantial
taking
from
474,490
conclusion");
54
for
as a whole,
Online.
165
150,
review
detracts
U.S.
to determine
214
and
U.S.
reasoning
Becton.
record
340
527
with
"'[a]
v. NLRB,
v. Zurko.
up
explained.
Inc.
1897
also
Dickinson
agency's
if "bound
v. M.C.
(Fed.
Cir.
-
2000)
(holding
review
unsupported
1312.
by
53
The
Error
A proper
application
evidence
of record
trademark,
PLAY
trademark
The
makes
it clear
that
goods"
a pet
play
with
or serves
that
Section
a "significant
treat,
"in
to amuse."
record,
however,
substantial
and
ultimate
finding
the
clearly
functions
its
addition
evidence
of descriptiveness
its
at A-8.
on
_s a
finding
of
fundamental
of
edible,
Upon
used
of source
the
or function
to support
7
]1$35100]01/11SI211$,'.1
upon
to being
AOO.
THINGS
affirming
rests
feature
when
as an indicia
decision
2(e)(l)
PLAY
to the
conclusion:
descNptive
rather,
is
Evidence
apparent
merely
treats;
Descriptive
descriptiveness
readily
is not
review)
Substantial
logical,
1305.
.ludlctal
is Merely
for
F 3d
generous
THINGS
standard
pet
203
unless
(characterizing
more
by
to one
2000)
upheld
capricious"
PLAY
of the
that
determination
that
edible
under
is that
deferential,
THINGS.
with
suggestive
descriptiveness
Cir.
(Fed.
Unsupported
leads
or in connection
Board
1773
"'arbitrary.
Finding
Reversible
is plenary,
In re Gartside.
to default
Board's
decision
evidence):
as less
in contrast
B.
the
1769.
evidence"
review,
Board's
substantial
U.S.P.Q.2d
"'substantial
of
applicant's
is something
review
that
-- is clearly
to
of the
determination
lacking
--
!.
Test
Section
by
which
goods
on
for
2(e)(l)
the
account
used
of the
goods
of others
when
Descriptiveness
of the
shall
be refused
its
nature
on
or in connection
merely
descriptive
U.S.C.
§ 1052(e)(1)(2004).
language
appropriate
the
"the
of the
2005)).
This
In re Colonial
(C.C.P.A.
ancillary:
miniscule,
]1_351CO101/1151211Sv
I
case.
1987).
this
merely
Id.
F.3d
has
at
esoteric,
of the
F.2d
549,
relevant
word
or deeply
xvh_ch
. .
is
. .
820
recognized
"" 15
F. 2d
1216.
the
refusals
are
a significant
(emphasis
75
added)
"'merely"
157
in this
It can
shrouded
(cited
U.S.P.Q.2d
U.S.P.Q.
1420
means
382.
language
characteristic
significant.
register
of them.
that
552,
the
applicant
In re Gvulav.
1297,
emphasized
trademark
principal
of a mark
Court
2(e)(1)
from
descriptiveness
1217
1293.
a key
be
the
mlsdescriptive
In the
"'[n]o
distinguished
goods
describes
the
must
the
Section
that
on
mark
Likewise,
of descriptiveness
be
that
394
Indeed,
provides
establishing
Court
Stores.
1968).
"'significant"
with
Cir.
415
Act
it . . . [c]onsists
goods."
re Steelbuildin_o.com.
Cir.
may
Lanham
registration
unless
(Fed.
Board
when
characteristic
Act
or deceptively
1009
of
Lanham
applicant
of
3 U.S.P.Q.2d
under
in the
not
in In
(Fed
"'only.;"
385
is the
word.
determination
logically
characteristic
be
a m_nor.
Also.
as this
it "'imnlediatelv
2d
of
at
1217
U S PQ.
591.
finding
which
the
materials,
& Breakfast
1986);
812.
200
finding
Monitoring
element
a significant
purchasing
imagination
and
average
the
owner's
that
the
descriptiveness
also
215,216
GASBADGE
Badge
badge
a mark
consumer
IIS351_0010111151211$v_1
where
explained
..ooods.
the
and
229
U.S.P.Q
Corp..
1978)
In re
818.
588
(affirming
819
F.2d
(Fed
811.
promoted
"'Gas
specially-treated
gas").
is suggestive
at least
to determine
if it requires
some
the
degree
nature
Bed
descriptiveness
advertising
"[a]
w_thtn
advertising
is undertaken
applicant's
the
to employ
perception
Cir.
and
collects
160,
of the
public."
and
Development
(Fed.
Service"
contrast,
157.
In re Abcor
U.S.P.Q.
and
F.2d
204
and
it is from
purchasing
assessment
Ltd..
"'aptly
or attribute
marketing:
820
descriptiveness
Importantly.
labeling,
791
In re Bri.oht-Crest.
function
_f
or
In re Gvulav.
forthwith.
cards)
only
qualities
it is used."
(affirming
or "relevant
of
is descriptive
ingredients,
also
1979)
conveyed
in the
By
see
COASTER-CARDS
see
for
which
(T.T.A.B.
Re_oistrv,
Cir.
with
added):
coasters
a mark
of the
where
of the
context
goods
592-93
combined
standpoint
the
articulated,
knowledge
(emphasis
only
succinctly"
has
conveys
characteristics
F
Court
the
relevant
of
thought.
of the
goods
or
services
connected
words,
on
entitled
the
(finding
525,205
line
and
practice
to
An
alternate
adequately
same
describe
a term
because
distinguished
Bank
Austin.
(5th
Cir.
909
and
men
in the
may
business
would
generally
product
desire
Laredo.
F.2d
839,
Texas
v. Union
it is the
favor
case,
that
In re Abcor
a mark
may
Development
and
publish
the
the
is whether
word
to
It]he
should
Bank
16 U.S.P.Q.2d
be
"generally
10
115351.001011115121i$v.I
Corp.,
descriptive"
In
Board's
it is attractive
Nat'l
also
descriptive
d_ffer,
descriptive
Inc.
1981)
"[However]
it because
n.22,
see
(T.T.A.B.
a merely
need
to use
848
Shops.
1980)):
791
a
mark
Copy
descriptiveness
or service.
or highly
to reach
it is a suggestive
applicant's
for
In other
need
be
"" Un_on
of Texas.
1129.
1137
n.22
1990).
In the
recognized
a suggestive
test
the
1217.
(C.C.P.A.
U.S.P.Q.
of the
of Texas.
Texas.
209
it is generic
from
507
phrasing
their
at
is required
then
505.
Inc..
doubt
F2d
In re Qulk-Print
reasonable
the
opposition.").
in the
Nat'!
where
for
others
U.S.P.Q.
between
resolve
goods."
(quotin_o
Prods..
"'thin
designation,
Id.
820
or perception
of the
to protection.
F 2d 523.
mark
thought
nature
re Morton-Norwich
use
In re Gvulav.
if "'imagination.
conclusion
616
to it.
suora,
this
while
Court
not
betng
to
"'merely
813.
descr|ptive.""
This
Court
differences
if it also
relied
between
upon
an
merely
Generally
functions
established,
descriptive
speaking,
information
for
an idea
of the
imagination
indicia
mark
Id
and
at
of the
suggestive
marks:
imparts
requires
to connect
source.
explanation
it is descriptive.
which
of
general
marks
if the
directly,
stands
as an
If_t
some
it with
operation
the
goods.
it is suggestive.
ld.___,
at 814
(citino_
Union
366,
denied.
429
cert.
however,
to
the
§ 1209.01(a)
goods
(4th
v. Executive
(finding
mark
between
being
suggestive
Court
spectrum
U.S.
"'a designation
relation
Svs.
CarbideCorp
does
and
ed.
830
v. Ever-Ready.
(1976)).
services
2005)
(emphasis
F. Supp.
""HEADQUARTERS
mark
with
articulated
its
In the
syntax,
elements
being
descriptive
complex
world
(D.
Mass.
the
of etymology,
time.
these
legal
categories.
along
the
continuum
No
clean
Rather.
between
11
a term
connotation.
separate
may
suggestiveness
will.
as 2001.
presented
boundaries
1991)
cusp
if you
As recently
difficulties
Network
and meaning,
a term
may possess
of suggestiveness
and descriptiveness
same
I
1110
It is.
Ul
P
HQ
is on
E.P..
meaning
distinctiveness:
at the
I IS351.0910111151211Sv
the
all
F.2d
T.M
also
suggestive
for
the
see
elements").
appreciation
531
T.M.E
COMPANIES'
and
of trademark
of
registrable."
added):
755
in
to be devoid
to be
Headquarters.
descriptive
As clarified
have
not
Inc..
slide
and
by
a
this
the
descriptiveness
other
factors
depending
that affect
perception
In re Nett
1566
too.
Desi_ons.
(Fed.
carry
Cir.
Inc..
2001).
a certain
registrable,
applied
THINGS
functions
makes
it clear
under
its
"'in
AO0.
substantial
evidence
a review
of the
to play
with
and
the
to some
pet
toys,
i.e.,
as attributes
International
Class
be
played
with,"
31.
its
no
The
doubt
for
the
may.
inherently
review
that
this
to
treats,
Board
that
is that
play
with
_s clearly
reveals
a pet
or serves
lacking.
that
characteristics
goods
a
however.
International
i.e.,
The
of descrlptl_'eness
record,
Court
are
in
treats.
goods"
determination
premise
at A-8,
pet
PLAY
determination
of the
before
pet
that
finding
is something
classified
for
1564.
mark
st_ll
fundamental
classified
"treats
[] serve
is the
flawed
lynchpin
the
ability,
attributable
Class
that
12
115351.O0101/1151211Sv.I
be
to amuse
goods
U.S.P.Q.2d
a suggestive
of applicant's
Upon
eXoo.
can
edible,
capability
insignificant
may
upon
record
57
while
affirming
to support
Indeed,
that
there
decision
at A-8.
1341.
as a trademark
to being
and
at hand.
or function
addition
to amuse."
case
case.
rests
feature
1339.
or significance
to the
2(e)(l)
"significant
F.3d
foremost
that
Section
236
meaning
in this
context,
public's
term.
Understanding
is crucial
As
treat.
of the
on usage,
the relevant
28.
but
_n
to amuse
of
the
or
Board's
decision,
evidence
insofar
in the record.
as it is wholly
While
the record provides
toys and pet treats are complimentary,
blurring,
and leaping
sometimes
position
nothing
about the lines between
ascribe the immediate
characteristics
unsupported
and significant
by substantial
evidence
short of sh_ftlng.
the two categories
"'play"
can
and "'amusement"
of pet toys -- even toys inside
which
treats are
placed -- to the pet food subset of pet treats.
is borne out by the following
that pet
examination
Pet Food's
of the evidence
of
record.
2.
First Office
Action
Descriptiveness
The
evidence
ultimately,
by
A-18
and
- 25)
Examining
A-219
supported
and
by
copies
utilize
2At
point
intent
The
initial
to use
in the
the
mark
the
five
(App.
Action,
pages
prosecution.
PLAY
at A-20
Pet
THINGS
I
the
initial
- 190).
(App
and
Internet
its
face,
application
both
pet
toys
at
was
at A-19)
featuring
2 On
Food's
9, 2003.
(App.
at
the
(App.
September
"plaything"
- 25).
and.
Reconsideration
dated
on
13
IIS3511_}101111512115v.
at A-147
of
from
the
of
Evidence
Attorney
from
for
Finding
Substantial
Examining
originates
definition
(Ao0.
by
of Request
Office
dictionary
treats."
by
Actions
Denial
Response:
Supported
primarily
Office
of merely
"'which
this
final
the
upon
Board.
Attorney's
- 221).
Is Not
relied
the
and Pet Food's
dog
toys
the
identified
in Class
its
28
and
dictionary
definition
to3'."
nothing
says
significant
pet
of "'plaything."
about
feature
treat.
_
any
feature
immediately
at A-19.
dog
Descriptions
pet
treats
by
The
first
designed
of the
pet
Power
toys
Paws
describing
animal
unmotivated
by
Treat
you
allows
motivational
toys
agility
to combine
food
training
aid."
highlights
that,
pet
treats,
it is ultimately
pet
treats
application
was
mark
on
later
divided
The
created
Apo.
while
in Class
the
goods
in Class
child
31,
application,
with
on
at A-21.
scent
pet
toy
to
separate
namely,
which
18,
ability
Next.
the
applications.
pet
treats,
is the
the
crazy
The
Power
to create
32.
sole
for
of
Aoo.
were
but
Tug
"N"
further
features
features
for
of play
and
the
to allege
use
of the
19,
but
was
2003.
at A-30
placed
subject
pet
a powerful
Subsequently.
2003,
and
treats,
Paws
key
the
toys
use
evidence
as November
14
I
their
and
inevitably
- 17,
November
as early
toys
dog
which
at A-20).
pet
Such
are
at A-33.
IIS351.00101/1151211Sv.
a toy
a
between
A-20.
training?
of a
from
(Aoo.
describes
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a
a
describes
mind!"
_at
"'Is
A D9_:..at A-10
at least
two
and
the
amended
into
App.
taste
31.
goods
Internet
w_th:
consumer
taken
of the
the
alone
average
divide
treats.
during
the
- 21),
in
sizes
training.
let
page.
the
pet
from
agility
to
pet
various
sized
page
your
to play
treats,
at A-20
highlight
the
various
Agility
during
with
toy
pet
Internet
(Aop.
toy
to accommodate
of
"'something
conveyed
<www.powerpawsagility.com>
"'[ulnique
i.e..
in
of this
- 31.
the
33-34
newly
appeal
amusement
feature
are
of an edible
or play.
then
function
common
sense
differently.
offered
pet
toy
housing.
with
treats,
the
initial
or be amused
used
to attract
get
the
pet
dog
the
"Yuppy
gumball
some
will
treats
alone.
I$'_'_1
Tug
spoilage
The
remaining
further
ability
toy:
treats
or dog
work
rolling,
out."
Treat
by
pet
cautionzng
a pet
treats
to avoid
soiling
evidence
pet
toys
toy.
not
into
the
and
tossing
from
a dog)
to the
open_ng,
<www.dogdaycafe.com>
the
App.
machine
Treat
Machine
(uses
treats,
. . . This
not
13"
gumballs)
tall
has
to
treat
and
ball
to
at ,4.-22
added);
Puppy
--
the
(typically
to the
nudging
toys
consumer's
Internet
food
of
further
and
for
to the
inside
separates
is endemic
amusement
perceive
"N'
treats
significant
for
average
however,
15
I lS._SI_C_)IOI/115121
The
to avoid
the
or lure
(emphasis
•
that
product
your
it as bait
Action
the
insert
to use
Paws
by
"Just
reason
at A-21.
showing
play
be used
separable
Office
and
it could
Power
the
immediate
that
itself,
treats
AOO.
clearly
•
of
the
if an
knowledge,
from
to replace
toy's
by
common
seller
its
was
be no
as a toy
The
purchaser
treat
would
and
distinguishes
To be sure.
pet
there
it would
the
ascribed.
working
been
specially
designed
so dogs
<www.sitstay.com>
•
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also
•
_
Cube...
help
reduce
(emphasis
added):
To Me
is an
to do."
message
that
replayed
jarred."
<www.sltstay.com>
fun
by
toy
It can
giving
your
_
part
every
""
added).
brain
problems
. . . the
be
(emphasis
<www.s_tstay.com>
Treatball
will
it themselves
excellent
behavioral
fun
work
at A-23
This
something
"'Talk
can
at A-23
is you
time
the
_atA-23
dog
can
ball
record
ts
(emphasis
added);
•
"'Super
love
Pet
the
Boredom
Buster
combination
of toy
<www.taoherbfarm.com>
•
"'Super
Pet
Back
of treats
and
Food's
attributes
foregoing
position
of
immediate
excerpts
that
pet
toys,
or sign|ficant
play
but
the
and
the
ability
the
evidence
lSv.l
that's
attributes
(emphasis
Toys.
evidence
to amuse
to edible
way
pet
added).
. It's
a
irresistible"
at A-25
in no
16
I IS351.001011115121
Animal
fun
. They'll
treats!"
_
from
Toys.
at A-25
Small
<www.taoherbfarm.com>
The
and
_
Bounce
combination
SmallAnlmal
(emphasis
added)
of record
support
may
be significant
shows
treats
them
themselves
Pet
to be
a
This
conclusion
includes
is made
pet
toys
such
<www.sitstay.com>
Steaks
and
ATaL!
Wa_in_
A-24):
Property
"'Paws
record
Food
'n
More
the
term
itself.
records
initial
atA-69Attorney's
with
71.
Pet
relationship
between
the
marketing
relationship
between
[Pet
Food's]
such
goods."
argument
goods,
,4,0o.
that
a mark
without
more,
merely
does
with
not
to
17
!1535160101/115121iSv.i
record
meaning
arise
a search
revealed
of toys
The
from
which
time
mere
at
any
amended
word.
than
properly
has
and
of the
trademark
atA-47-49.
"Dog-Opoly
whatsoever.
results
other
at the
of high
Hasbro'"
Action
the
31.
Food
That!"
(App.
of which
treats
alia.
treats,
evidence
by
none
conjugates
pet
Do
Game
at A-24):
Office
Class
Can
- The
Toys
at A-25).
International
in connection
Examining
Dog
inter
for
Dog
of evidence
<www.sitstay.com>
to pet
to include,
with
App.
"'My
Game"
to the
record
"'Dogopoly
Teether
responded
the
(,400.
relationship
Office
combination
game.
Trading
(,4,00.
of evidence
Trademark
board
<www.sitstay.com>
evidentiary
Pet
where
at A-24):
<www.taoherbfarm.com>
apparent
clearer
as the
(,4,00.
Bones"
and
even
"'PLAY."
that
by
summarized
to
merely
and
reflects
of
_n
no
usage
Pet
Food
of
the
"suggest
treats,
[PLAY
the
but
a
no
THINGS]
Pet
in relation
descriptiveness
and
Food's
to the
proper
identified
under
Section
2(e)(l).
2005)
AO0.
("Suggesnve
registrable
marks,
on
the
meaning.
Therefore,
meaning
in relation
Pet
Food
dictionary
its
definitions
and
none
of the
and
at A-45
extensive
amusement
- 68.
as a noun.
discussions
the
and
definitions
as to be
with
evidence
registered
on
THINGS,
U.S.
pet
the
incapable
in the
Principal
and
"'THINGS"
thirty
record
of
Register
merchandise:
less
namely,
in
play
62
so
66
"retail
linen
or
- 65
anything
- 68.
Combined
party
marks
such
store
and
let
enigmatic
conveying
limitation,
bed
of
verb
treats,
- 46.
are
third
for
the
ten
of pet
record
- 47,
without
"')
idiomatically.
at A-45
similar
2,257,207
than
ascribes
in the
all
components
as used
App.
at A-46
of
including
definitions
of immediately
_
No.
no
by
ed
are
be devoid
record
or purposes
18
11_35100101/1151211$v.I
the
illustrations
"THING"
treats.
Registration
of general
the
to
(4th
to be reg_strable
Despite
ones.
of
of secondary
have
of "'PLAY"
significant
proof
into
nearly
characteristics,
about
field
62
as
significant
the
"'PLAY"
or even
ambiguous
ample
the
01(a)
marks,
services
evidence
- 47.
features,
not
§ 1209
arbitrary
without
and
definitions
immediate
Likewise,
for
and
does
goods
further
T.M.E.P.
fanciful
Register
to the
of "'PLAY"
form,
also
a designation
added
_
see
like
Principal
definitions
mark.
alone
at A-49:
as WARM
services
clothing.'"
in
the
record
at that
evidence
point
of.
the
determination
features
was
Examining
that
and
to
Final
pet
Office
ahead
language
of the
maintain
the
to the
Examining
rationale
trademark.
The
Examining
wording
'PLAY
submitted]
for
the
evidence
good
themselves
being
that
treats
evidence
The
that
just
fit
for
Examining
refusal
handle
is no evidence
that
a dog,
treat
toss
tossed
by
a bacon
its
Section
owner.
strip
of
that
an edible
that
across
The
reason
the
pets
toys,
to
while
"'[t]he
less
lack
of
with
is simple:
amuse
exception
not."
provide
as they
room,
or
the
are
however,
would
descriptive
occupy
toys
treat
example,
in the
[previously
any
with
not,
hold
2(e)(1).
that
whereas
did
of
Evidence
struggled
wording
might
for
Finding
of a suggestive
given
19
11S351.CO10i11151211$v.I
under
the
- 146.
took
analysis
treats."
Attorney
72
Substantial
as the
in any
Board's)
significant
equivocation
consumption
would
by
substantial
the
- 58.
rationalized
as they
alone
Response.
hallmarks
render
'pet
let
immediately
Food's
Action.
a pet
a milk-biscuit,
meat
Final
not
ultimately,
Supported
THINGS"
as
treats
are
Pet
multi-step
does
(and:
at A-50
Attorney
identified
with
at A-148.
There
the
for,
_
and
the
support
are
Attorney.
for
adopting
exact
treats.
Is Not
unwiningly
the
amusement
Action
Descriptiveness
Moving
of any
Attorney's
play
attributable
3.
devoid
any
would
a toy.
tug
repeatedly
or fetch
and
dogs.
like
at
return
their
a
owners,
dogs
know
waste
the
no
importantly,
the
let
in treats,
between
eating
record
of a pet
product,
that,
time
the
consumer
difference
a treat
looks
alone
no
for
look
characteristics
like
nutrition,
the
decision.
purchasing
The
distinction
understood
tempting
Despite
this
into
the
record
at A-147
- 48.
significant
of
and
obvious,
151
features,
a special
delight
thought
that
Attorney
something
-- and
advertisers
for
empirical
and
chewabil_ty
and
toy
- 53,
none
the
signifies
then
that
reluctantly
provides
get
amusement
that
to
as the
3'our
well-
toyf.'"
a treat?"
Attorney
added
"plaything."
closer
to
treat
mean
the
definition
or entertainment
_n Class
"'a source
imag_natton
however,
the
AO0
to the
of a pet
trademark,
posited
20
115351.00101/1151211$v.!
simple
Id_.__. Epitomizing
a suggestive
--
as s_gn_hcant
any
of "treat"
of
shows
promote
of
or purposes
or pleasure."
record
Examtning
moves
definition
as features
"'want
definitions
and
average
the
"go
norton,
characteristics,
a dictionary
a dog.
question.
of which
the
is as
beloved
dictionary
treat,
Most
amusement
Rather.
telling
the
additional
with
include
with
and
that
features.
treat
between
a dog
together
Examining
between
difference
versus
31,
taste,
an edible
as possible.
evidence
play
significant
consumers
and
as quickly
contains
treat
a toy
the
"'could
"" Id
(emphasis
added).
evidence
from
refusal.
_
support
the
the
Board's
the
evidence
is not
decision.
On
transitive
are
to amuse
or occupy
pets
category
'toys
that
and
play
treats
to
AoO.
the
submitted
evidence
treats,"
the
the
cases
under
Action,
significant
fails
with
the
evidence
entered
at A-20
- 25,
the
evidence
supplied
in the
Action,
_
at A-151
fails
to substantiate
- 90:
finding.
Pet
marketed
as complimentary
that
the
play
and
Board
and
amusement
does
the
not
_ntended
under
substantial
evidence
features
purchasing
Internet
the
of pet
conditions
evidence
to
substantial
holding.
with
deny
that
products.
Examining
the
characteristics
initial
Pet
Foods
and
toy
Final
descriptiveness
pet
treats
submits,
improperly
pet
Action.
Attorney's
the
toys
of the
Office
Examining
pet
Attorney
21
IIS351.O0101/11512115v.I
edible
objects
to amount
support
Foods
Board's
infra,
to
As
the
and
not
the
found
of
of the
_t does
and
of
even
ordinary
examination
Final
scope
is bereft
immediate
descriptiveness
and
jerk),
are
more
accepting
that
the
record
of the
even
"'within
consumer
A refined
balance,
in some
are
average
with
objects
provided
substantial
argument
and
amusement
at A-148.
Attorney
in support
example,
and
Examining
allegedly
Attorney's
for
the
Internet
at A-148.
Examining
chews,
While
are
often
however.
transferred
category
to the
the
pet
treat
category,
where
such
which
are
characteristics
smell,
size.
evidence
under
nutritional
larger
truly
from
and
of "'Pet
<www.petsuppliessearch.com>
listing
posts
cabs
that
treats.
complimentary
one
another.
and
Likewise,
PetMart
highlights
the
that
fact
features
the
play
when
tug
and
applied
of the
play
Holistic
provided
only
word
with
"play,"
or be
Dog
amused
Treats":
the
evidence
not
amount
to
by
between
are
"'Chomp'n
I
pet
pet
Tails
edible
Chips
toys
pet
to pet
treats
proximity
Happy
and
to
Tails
pet
treats,
not
significant
treats.
at A-157
- 60.
PetMart,
most
conveying
treat:
applied
and
w_th_n
and
of pet
substantial
toys
from
_mmediate
immediately
the
& Treats"
scratching
when
advertised
purchase
alone
Such
does
supplied
distinction
Happy
taste.
the
156.
and
that
sometimes
the
namely,
"'Toys
leashes
to establish
amusement
those
lists
pet
22
!1S351.00101111512|1Sv
example,
from
Aop.
let
For
descriptive
are
to the
from
treats,
is merely
<www.happytailspetmart.com>
listings
pet
A-154-
toys.
THINGS
it serves
are
like.
behind
Supplies.'"
everything
and
PLAY
Rather.
the
_at
documentation,
evidence
for
far
FetSuppliesSearch.com
category
to kennel
rank
s_gn_ficant
content,
of record
the
characteristics
"Biscuits
Holistic
Dog
Of
the
make
a pet's
n'
multiple
no
mention
ability
Gravy
Treats":
"Luv'a
to
Bones Holistic
Raviolos":
Dental
Big
Dog Treats":
"'Cookies
Chews":
Girl
ability
to
draws
the
treats,
including:
tempt
all
natural,
no
"'Calcium
calcium
as do
taste
favorites
time,"
like
fish,
treat
ribs,
and
of a minority
intensely
shrimp/lobster
that
great
of pet
treat
and
I
growing
"[s]haped
isolated
some
fun
for
products,
not
are:
at best,
the
significant
palatable.
need
like
your
extra
what
reference
of your
),our
"'a
love
for
who
and
and
amusement
treats
dogs
and
of pet
ingredients":
"'[d]ogs
natural
their
boost":
"'[h]ighly
An
and
tout
facets
lamb":
filling":
and
_nstead
holistic
Id.
tool
Balls"
nutrition
grilled
and
turkey
Treats":
evidence
and
dogs";
23
IIS35i.0010111151211Sv.
Goof
flavorful."
training
play
and
lactating
Cat
the
natural
young
"'Nylabone
"Combone":
daily
meat-r_ch
for
Boodas":
to food-related
"[h]ealthy
and
and
"'Dingo
turkey,
Bone
pregnant
"'Greenles
natural
with
"a tasty
Health
Treats":
chewing.'"
all
roasted
Dried
attention
made
preservatives";
. . . [a]
shows
"playful
delicious
of chocolate""
dogs":
"'[I]iver.
baked
"'V_takraft
"'Shaped
While
immediate
"[a]
short
Chips";
Id.
into
consumer's
"'[b]raised
they
dogs
oven
taste
Drops."
Drops":
"'Wowsers":
"'Rawhide
Catnip
Choc
"'Nylabones
Edibles":
Bone":
"'Good
Boy
"'Freeze
Bones":
"'Nylabone
"'Compressed
the
Bits";
"'Health
Chews":
crunchy
and
"'Good
cat
to
cat's
at the
same
ancillary
benefits
and
_mmed_ate
characteristics
conveyed
atA-159.
Indeed.
repeatedly
memorialized
A-157.
160.
ostensibly
the
store
or
such
as digestible,
161.
On
And
and
isolated
properly
Akoss
Akoss
pattern
pet
treats
make
no
Toy,"
from
the
evidence
example.
to
features
edible.
AOo.
is on
Food
at A-
biscuits
Cube's
falls
immediately
standpoint
--
Services
for
example,
the
is
AO0
Store
significant
Buster
for
treats
reference
emphasis
features
viewed
Pet
and
to the
pet
evidence
where,
flavored,
treats
Imaging
truly
advertiser's
pet
and
from
same
Educational
toys
PetMart
the
reference
of
Tails
with
natural
the
pet
emphasize
as significant
when
and
"'Food
to cast
attributable
of the
play
to pet
average
d._.:.
I
Further
catnip
where
In A Puzzle
purchaser.
rather
gourmet
the
amusement
treats,
but
balance,
chews,
Fun
affiliated
advertised
play,
Happy
evidence
-- follows
of eight
amusement
edible
of the
consumer
between
in the
an online
out
ordinary
distinction
A review
<www.akoss.com>
seven
to the
to
evidence
analyzing
attract
felines
standard.
Love
That
Cat!
AO0.
at A-173.
the
record,
to toys
falls
well
<www.geronimos.com>
Store>
To be
AOO.
sure.
at A-170
PLAY
Aoo.
- 72:
THINGS
24
115351(;0101/11512115v.I
short
and
of the
of
the
use
substantial
atA-162
<A-Z
as applied
of sprinkled
- 68:
Petsupplles.com>
to the
herb
<The
at
catnip
(if
catnap
suggestiveness
finding
of the
recognized
mark,
highlights,
treats,
even
rather
when
wherein
it emphasizes
without
mention
system,
the
design,
and
benefits
evidence
the
from
along
with
the
hearts,
litter
and
evidence
alone
The
evidence
than
blurs,
several
_mmediate
or the
pacifier
of being
not
"[c]ats
give
things,"
utterly
fails
substantiate
them
<A-Z
something
PLAY
play
THINGS
or
had
where
the
for
a special
with
sale
place
some
_
to pet
descriptive
in
quality
at A-173.
amusement
as merely
flavor
dental
offered
Petsupplies.com>
to ascribe
the
clean
feeders
back
and
Toys."
unique
Likewise.
always
toys
features
namely,
and
cat
have
Dog
the
Pet
pet
significant
function,
shows
statement,
between
to amuse,
hygienic
Quality
Tastiest
atA-169.
Petsupplies.com
why
play
App.
divide
the
improper
Rex's
and
teether
illustrates
Board's
from
"World's
ability
and
treat"),
the
the
its
<www.dogbonetoys.com>
our
highlights
describing
of play
release
as a "'pet
and
of descriptiveness.
Products
pet
is even
food.
such
treats,
under
let
Section
2(e)(l).
The
of the
remaining
Board's
concerning
decision.
hamsters
evidence
in the
In an article
as pets.
the
Board
25
IIS351.CO!01/1151211Sv.I
record
is similarly
attributed
ostensibly
to
unsupportlve
PageWise.
relies
on
Inc..
a reference
that has nothing
to do with pet treats and everything
"'sturdy
plastic
tunnels
for him to run through."
ostensibly
Territory
play things
relies
for your hamster [to] create a system of
in the Pet Industry,'"
products,"
in which
items:
. . . '[n]atural
Association
""People
food.
AO0. atA-175-
to treadmills,
support
pillows,
177
than the foregoing
examples
- 78.
as merely
Clearly,
"[d]eprived
Board's
decision.
pets
as play
("),our
evidence
of
Id____.Nor
things,"
furry
toys
the
traveling
detailing
food. toys.
with additional
in substantiating
couches
for
reference
lends no
consequences
play
things"
lends
the
peculiar
discussion
does
discussion
of
companion
the finding
<www.about.com>
the
ten
will
26
11_351DOlOIIIISI2115v.I
enriched
toys for pet rabb_ts goes no
descriptive.
and
regarding
See id.
describing
rabbits
wires
decision.
of the
to look for h_gh
a line of designer
Read in context,
evidence
PLAY THINGS
is quoted
and even sling shots, such evidence
to the Board's
Additional
further
76.
"'Mark Your
Director
are starting
vitamin
the Board
entitled
the Managing
play things -- one guy is manufacturing
pets."
Simalarly.
by June Campbell
Manufacturers
the increase of pet luxury
quality
_atA-174.
upon an article
,American Pet Products
to do w_th
tips
be
most
at A-
of anxious
no
for
App.
of
support
of
happy
grateful
to the
"'household
travel
w_th
_f you
remember
to pack
favorite
toy?"),
things"
for
or the
marsupial
whatsoever
for
descriptive
when
directory
familiar
the
A-180;
and
on
play
which
and/or
treats"
on
time."
App.
the
made
to chew.
<PageWise..
Inc.>
atA-189-
90.
International
at play.
the
things"
toys
urge
for
Yet,
Class
cautioning
from
the
web
cats
and
labels
hand.
in connection
rubber,
atA-188;
Pet
Food's
28.
Still
against
I
play
open
for
Buddy
Society
with
toys,
or connects
at
Dog
of goods,
dogs
and
merely
dog
_
categories
as "'fun!.'"
the
a
- 83.
of the
evidence
and
such
puppies
"'[m]ilkbones
labels
as
"'snack
demonstrates
such
play
the
as sturdy
things
Aoo.
with
a
at A- 185
and<www.vetmedcenter.com>
wares
other
placing
are
evidence
"play
27
1153511XllOl/l151211$v
s_te
<www.healthypooch.com>
AOO.
and
<dmoz
atA-181
"[t]oys'"
which
Additional
of heavy
have
is merely
treats.
of d_fferent
Society
other
pet
he
substantiation
THINGS
AOp.
for
tents
any
PLAY
Does
<www.cableorganizer.com>
donations
at A-184.
of "'play
dog's
that
at A-179:
too.
of "pouches.
as a trademark
things"
him.
provide
determination
seeks
and
"kong"
gliders,
evidence
hand,
use
one
sugar
for
<www.countrycoach.com>
Society
as "'[t]oys
discussion
_
Continuing,
Humane
things
odd
used
project>
play
pet
treats,
not
describes
things"
too
toys,n
kid
high
Boer
and
goats
subjecting
the
goats
to potential
falls
<www.motesclearcreekfarms.com>
evidence
shows
play
characteristics
to
substantiates
the
descriptive
of
plaguing
the
With
having
and
relied
cats.
but
fish.
playful,
the
snakes,
and
as playful,
registrability
of the
Denial
request
that.
for
"'[a]s
the
and
dogs.
even
cats.
of the
pets
highlights
AoO.
the
gaps
that
Reconsideration,
of Descriptiveness
Is Not
the
went
s_milar
pet
treats
be
animals
for
turtles.
rarely
and
on
and
Beyond:
Supported
to deny
descriptiveness
previously
dogs
_t cannot
and
are
only
- 52.
for
of the
gl_ders.
on
Board.
not
suggestiveness
at A-251
Attorney
the
hamsters,
domestic
28
IIS351.1_10111151211$v.I
alone
as merely
regarding
sugar
other
in
such
significant
let
is indicative
Internet
THINGS
reconsideration
demonstrated
the
of PLAY
Examining
treats,
consequently,
use
mark.
and
THINGS
and
and.
from
of Request
Finding
Evidence
PLAY
logic
Attorney
while
of pet
That
decision.
rabbits,
that,
While
strains
examples
characterized
4.
of
87
be immediate
consumer
erroneous
hamsters,
at times
birds,
goods,
upon
to
finding
Examining
over-emphasized
are
ordinary
Board's
the
amusement
ultimate
such
injuries.
_atA-186-
and
the
and
submitted
by
Pet
refusal,
Substantial
Food's
asserting
evidence,
pet
treats
serve
AO0.
the
at A-220.
the
Additionally.
Pet
purpose
those
statement
fails
to conclude
treat
because
leaps
of
logic,
thus
of any
the
Beyond
evidence
to play
with:
a toy;
dogs
trademark
of
the
Examining
appended
to the
for
pet
treat
position
and
(5)
like
affirmed
and
Reconsideration.
the
misplaced
final
Office
the
l_ke
a
to play
to.,,,:
(4)
PLAY
THINGS
a stick
or bone.
is
leaps
Board.
reliance
Actions
Examining
several
(1)
a pet
Such
by
a
require
therefore
shaped
Attorney's
initial
some
whatsoever.
29
11_351.C010111151211Sv.I
are
or bone;
significance
the
of Request
the
(2)
shape
of a pet
mark
a stick
would
type
To be
descriptive
of a suggestive
or bones
_n the
treats.
stamp
sticks
any
id____.,
such
the
of
fallacy
those
to pet
is merely
that
include
or a bone
like
descriptive
to
so on."
amusement
a statement.
THINGS
a stick
(3)
is shaped
and
THINGS
like
form
or bones;
treat
illustrate
Denial
PLAY
PLAY
of a bone.
material,
pets."
concluded
considered
shape
and
such
correctly
in the
are
in the
play
is something
merely
devoid
that
which
as such
or amuse
belies
Attorney
broadly
of edible
it is shaped
sticks
pet
made
to ascribe
sure,
this
identified
including
those
to entertain
analysis
Examining
"and
treat,
plaything
are
thing,
detailed
application.
of a stick,
with
the
(,oods
trademark
of pet
foregoing
while
Food's
of a play
on
and
Attorney
the
the
and.
to
be
sure.
use
the
Board.
submitted
A-26-
29.
mark
on
to the
588
Where
them
the
depicts
a cat
Board
goods:
chews,
toys,
and
examination
that
it is actually
dog
tossing
nearly
an
a ball
half
the
between
size
of the
clearly
depicts
cartoon
requires
the
nor
one
another
where
without
dogs
the
have
while
willing
the
any
App.
heads
of both
not
mention
suspension
on
depict
of edible
Corp.,
labels
The
following
cat
_tems
catch,"
their
hind
a cat
and
treats,
as the
A more
however,
the
the
legs.
dog
the
and
ball
dog.
is the
fantastically,
alone
a
the
insofar
let
reveals
a cat
Where
and
and
packaging
depicting
Id__:..More
pet
of a
to be_no=
amuse.
at A-29.
_at
_n relation
packaging
of use.
the
See
Development
cartoon
of
placement
A_.p_.p_at A-8.
to "play
upright
the
of disbelief,
30
11_351.O0101111512115v.I
the
a treat.
dexterity
fancifully
to
specimen
fanciful
Use.
_n addition
stuff."
Food's
a toy,
treat.
specimen
considered
Food's
lists
fun
them.
standing
specimens
making
other
be
or serves
and
animated,
cartoon
cats
with
of Pet
Pet
"'a pet
playing
that
must
examined
Food's
to Allege
In re Abcor
that
a dog
Pet
emphasized
or services.
to play
and
Amendment
has
to demonstrate
is something
upon
continuum
goods
edible,
reasoned
Court
distinctiveness
at 814.
weight
of its
this
identified
found
great
in support
the
F.2d
placed
the
as neither
do
Id
tossing
specimen
so
with
Thus.
a ball.
fails
to
constitute
substantial
evidence
in support
of the
descriptiveness
determination.
Indeed.
the
Pet
advertising
decision.
and
Badge
element
in the
Cor.p__., 588
F.2d
zero
for
room
pet
toys
fanciful
the
fun
stuff.:"
is merely
fails
applicant
badge
collects
at 812.
might
depiction
of
THINGS
when
In reAbcor
to the
and
and
the
substantial
the
mark
consumption.
31
IIS351.00101111512115v.I
mark.
materials,
is used
on
determination,
the
a ball.
that
pet
left
v_s-_-
"'chews
evidence
which
THINGS
tossing
wording.
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specially-treated
of PLAY
a dog
its
Development
a different
a cat
the
"'[a]
Abcor
analysis
necessitate
to constitute
descriptive
gas'"
the
Abcor
touted
that
contrast
while
advertising
from
_n the
to register
explained
the
By
conjecture,
PLAY
its
and
distinguishable
examined
applied
simultaneously
arguably
mark,
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materials
Service"
cartoon
over
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while
Monitoring
specimen
packaging
In Abcor.
GASBADGE,
vis
Food's
treats
juxtaposed
• toys
PLAY
for
• other
THINGS
VII.
Trial
CONCLUSION
For
the
and
Appeal
merely
foregoing
amusement
Board's
could
are
of
pet
ultimate
significant
finding
substantial
person
purchaser
treats.
trademark
this
Court
reverse
and
remand
this
for
Pet
and
the
case
Pet
Trademark
to the
trademark
PLAY
to
United
be duly
February
21,
2006
and
Appeal
Patent
published
One
ROME
Logan
(215)
32
11_351.01)10111151211Sv.I
569-5500
devoid
of
19103
that
f_nding.
opposition.
LLP
PA
the
a
Trademark
Square
Philadelphia,
ordinary
describes
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CENTERS,
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requests
and
for
the
accept
Attorneys
BLANK
record,
that
to
By:
Its
error
treats,
respectfully
FOOD
reversible
merely
of pet
States
is
person
thus
Trial
THINGS.
of the
features
THINGS
Food
Trademark
conclusion
a reasonable
PET
Dated:
Board's
or characteristic
significance.
PLAY
a review
significant
could
that
quality,
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the
constitutes
Upon
SOUGHT
that
mark,
treats,
accept
Nor
conclusion
any
pet
RELIEF
submits
the
evidence.
not
OF
Food
that
to
immediate
feature,
Food's
Pet
as applied
by
reasonable
STATEMENT
reasons.
Board's
descriptive
unsupported
and
AND
LLC
Office
ADDENDUM
OPINION
I IS351.001011115121
OF THE TRADEMARK
ISv,.!
TRIAL
AND
APPEAL
BOARD
THIS DISPOSlllON IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Mailed:
UNITED
STATES
PATENT
Trademark
in
u_i_-rochv
D.
Trial
re
Pecsenye
AND
September
TRADEMARK
and
Appeal
Pet
Food
Centers,
Serial
No.
78975330
of
Blank
Rome
9,
2005
OFFICE
Board
LLC
LLP
for
Pet
Food
Centers,
L_.
Jennifer
D.
Chicoski,
Office
10i
{Ronaid
Before
Hohein,
Trademark
R.
Drost
Examining
Sussman,
and
Attorney,
Managing
Kuhlke,
Law
Attorney).
Admin!strative
Trademark
Judges.
Opinion
by
Pec
register
a
A_m/nistrat!ve
Food
Centers
PL=AY
THINGS
Principal
31.
K_hike,
LLC
(in
Register
for
Trademark
has
__ed
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standard
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an
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application
character
treats"
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to
form)
on
the
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bona
fide
2003
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intent
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first
January
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78975330°
use
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filed
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in
is
No.
20,
co_:nerce,
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based
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to
2003
as
which
resulting
78228919,
2004.
Amendment
19,
filed
March
in commerce.
Allege
applicant's
was
accepted
divisional
on
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a
request
° application
24,
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by
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November
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with
a
of
the
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use
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application
filed
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on
78228919
Tn_s
of
Ser
No.
78975330
The
ex_-_ining
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for
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We
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service
toys)
appeal
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oral
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LLP,
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373
quoting,
252
U.S.
2003).
to
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543
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1328,
in international
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_d
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P.D
67
for
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attribute
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2004),
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applicant
the
appeal
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the
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conveys
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applicant's
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28;
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Ser
No.
used,
78975330
or
Corp.,
204
intended
2
USPQ2d
USPQ
find
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of
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or
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re
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200
or
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it
mere
abstract
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820
Further,
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1985).
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order
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mark
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registration
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Syste_
on
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or
context
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or
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likely
215,
to
218
1978).
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PLAY
be
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that
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226
re
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1009
must
for
is
services,
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of
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1979).
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word
attorney
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The _eric_n
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_
Ser
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(2)
78975330
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!.6
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University
!997)
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treats''
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that
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Dictionary,
Cambridge
at w-_.dictionary.c_nzbrid_e
Dictionary,
the
excerpts
(!998)
available
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oe
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* The C_rid_e
Advanced
Learners
Universi£y
Press
2004,
available
9;ebster's
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shaped
items
and
to
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websites
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No.
use
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and
the
78975330
the
goods
m_rk
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is
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the
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list
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its
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contain
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of
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rugs,
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list
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fields
14.
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disclaimer
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the
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System
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and
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submitted:
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relationship
goods."
without
unique
ex_._ining
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Search
THINGS
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Applicant
registrations
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of
relationship
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things
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third-party
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THINGS
applicant
31
descriptive,
PLAY
registrations
Class
3
[a]pp!icant's
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Electronic
third-party
printouts
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p
word
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limited
treats,
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13.
by
and
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essence
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provided
Trad_ark
international
the
Brief
and
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Brief
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to
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by
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able
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components
to
are
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toys
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retail
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identifier."
that
field
merely
coalesce
source
pets
thus
"the
trademark
THI_S
that
contends
playthings,
does
is
containing
show
outs!de
that
of
play
toys,
Set
No.
78975330
but
not
merely
that
"due
to
i_ediately
its
or
the
be
used
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aids.
dictionary,
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with."
for
Reqeest
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asserts
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in
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this
_.-mse.
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treats
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contends
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are
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5.
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educatlonai
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p.
I!}
pet
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phrase
brings
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to
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vacuum,
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whether
feature
or
pu-_pose
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be
pet
played
"[w|hen
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in
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persuaded
connection
Applicant's
mind"
not
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appi!cant
app!!cant
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instrtu_ents,
pet
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with
Reconsideration
we
inform
many
_o
case,
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connection
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info-.rmation
Reconsideration
outdoor
of
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convey
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mind
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the
Ser
No.
78975330
phrase
in
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Dev.
the
context
Co_-p.,
?_ith
was
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has
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_d
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re
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2000);
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re
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consider
in
_<icrosys_ems
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59
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1564,
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mmy
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9
14),
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The
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are
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projects
USPQ
find
Clubs
probative
attorneys
219
not
third-par_y
term
not
decide
do
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re
tenable
designation
term
See
Inc.,
Theatre
• _hus,
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of
that
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fact
persuasive.
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sale
PLAY
imagination
!i},
used.
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with
and
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customer's
are
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that
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Foundation,
argument,
mark
evidence
significance."
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of
cull
registration
Sports.
PLAY
the
use
descriptive
the
argument
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to
"justify
word
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identifying
first
the
to
unable
relationship
under
whlch
supra.
regard
attorney
in
2001)
Clr
(._T.AB
(._P.AB 1978)
based
in
on
the
re
Sun
Ser
No.
78975330
..o__ov__,
_ereiy
in
we
must
descriptive
re
and
Oppedahi
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THi_,_S
&
to
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bones
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and
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submitted
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demonstrate
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to
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packaging
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something
stuff.
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for
pet
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term
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its
with
as
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we
do
The
a
and
goods:
not
have
dog
to
dog
to
that
a
treat
of
in
chew
use
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being
further
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and
toys,
as
, edible
Allege
playing
it
record
(2)
amuse.
doubt
of
of
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of
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addition
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of
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prospective
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reqeires
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whole
elements
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or
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conjecture
treats
goods.
product
ball);
goods,
perceive
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as
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without
order
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treats:
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braided
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pet
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applicant's
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LLP,
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info_.rmation
pertains
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goods,
played
whether
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applied
speculation,
be
consider
lists
and
the
other
this
mark
fun
is
a
Ser
No.
merely
in
re
78975330
descriptive
Afar!o,
Decision:
25
in
USP02d
The
connection
1361,
refusal
with
i362
to
the
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register
!den_if!ed
1992)
is
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goods.
CERTIFICATE
I certify
that
this
point
of the
App.
under
Brief
in s_ze.
Federal
of Appellant
and
word-processing
P. 32(a)(7)(B).
115351.0010111151211Sv.I
OF
contains
Rule
has
6.631
system
COMPLIANCE
of Appellate
Procedure
a proportionately
spaced
words,
used
to
according
prepare
to the
th_s
Brief.
32(a)(7)(B)
typeface.
word
Fed
14
count
R.
PROOF
I hereby
foregoing
below,
Brief
by
U.S.
certify
for
that
SERVICE
February
21.
2006
I am
day
causing
Appellant
first-class
OF
this
to be
mail,
served
addressed
upon
two
(2)
the
person
as follows.
Nancy
C. Siutter.
Associate
Solicitor
Esquire
Office
of the Solicitor
P.O. Box 15667
Arlington.
Phone
No.
11_351.00i01/1151211Sv.I
Virginia
22215
571-272-9035
copies
of the
indicated