24 HR Lockouts

Trademark Trial and Appeal Board

Jul 10, 2012

No. 85143186 (T.T.A.B. Jul. 10, 2012)

Mailed: July 10, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re 24 HR Lockouts
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Serial No. 85143186
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Dan Revich for 24 HR Lockouts.

Mary Boagni, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______

Before Grendel, Kuhlke and Lykos, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

24 HR Lockouts, applicant, has filed an application to
register as a mark 24 HR LOCKOUTS (in standard character
form) on the Principal Register for “locksmithing, namely,
opening of locks” in International Class 45.1
The examining attorney has refused registration under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), on the ground that applicant’s mark is merely

1 Application Serial No. 85143186, filed on October 1, 2010,
under Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a),
alleging first use and first use in commerce on January 1, 2008.
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B
Serial No. 85143186
2
descriptive of its services. Both applicant and the
examining attorney have filed briefs. We affirm the
refusal to register.
“A mark is merely descriptive if it ‘consist[s] merely
of words descriptive of the qualities, ingredients or
characteristics of’ the goods or services related to the
mark.” In re Oppedahl & Larson LLP, 373 F.3d 1171, 71
USPQ2d 1370, 1371 (Fed. Cir. 2004), quoting, Estate of P.D.
Beckwith, Inc. v. Commissioner, 252 U.S. 538, 543 (1920).
See also In re MBNA America Bank N.A., 340 F.3d 1328, 67
USPQ2d 1778, 1780 (Fed. Cir. 2003). The test for
determining whether a mark is merely descriptive is whether
it immediately conveys information concerning a significant
quality, characteristic, function, ingredient, attribute or
feature of the product or service in connection with which
it is used, or intended to be used. In re Engineering
Systems Corp., 2 USPQ2d 1075 (TTAB 1986); In re Bright-
Crest, Ltd., 204 USPQ 591 (TTAB 1979). It is not
necessary, in order to find a mark merely descriptive, that
the mark describe each feature of the goods or services,
only that it describe a single, significant ingredient,
quality, characteristic, function, feature, purpose or use
of the goods or services. In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987).
Serial No. 85143186
3
Further, it is well-established that the determination
of mere descriptiveness must be made not in the abstract,
but in relation to the goods or services for which
registration is sought, the context in which the mark is
used, and the impact that it is likely to make on the
average purchaser of such goods or services. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978).
Finally, 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. 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. In re Oppedahl
& Larson LLP, supra.
The examining attorney argues:
The mark in this case, when viewed as a
whole and in the context of the
services, consists of a combination of
descriptive wording which creates a
composite that remains descriptive as a
whole. Specifically, the mark
immediately conveys to consumers that
Serial No. 85143186
4
the applicant provides locksmith
services for lock outs at any hour of
the day.2

In support of her refusal, the examining attorney
submitted evidence that shows HR is the abbreviation for
hour (http://encarta.msn.com/encnet/features/dictionary,
attached to January 15, 2011 office action) and that hour
means “60 minutes: one of the 24 equal parts of the day”
(http://encarta.msn.com/encnet/features/dictionary). Based
on this evidence she argues that “the words 24 HR convey 24
hours, or the number of hours in a day.”3 Further, citing
to a definition from wiktionary.org
(http://en.wiktionary.org, attached to January 15, 2011),
she states that the term “LOCK OUT is defined as ‘to
prevent from entering a place, particularly oneself,
inadvertently.”
In addition to the dictionary definitions, the
examining attorney submitted several excerpted articles
retrieved from the LEXIS database and third-party web pages
that show the descriptive nature of the proposed mark and
the competitive need for the wording in the relevant

2 Ex. Att. Br. p. 4.

3 Id.
Serial No. 85143186
5
industry. A few of the examples highlighted in her brief
are set forth below (emphasis added).
“Some locksmiths charge between $30 to
$40 for a lockout and provide a 24-hour
lockout service.” Tajuana Cheshier,
Local locksmiths want police out of
their business, The Jackson Sun (TN,
Nov. 24, 2004, Main Section.;

“Speedy Lockout Service, a new provider
of 24-hour lockout services and other
emergency solutions, is now in
operations in the Upstate. Speedy
specializes in lockout services. In
Business, The Greenville News
(Greenville, SC), Feb. 1, 2004, Pg.
4X.; and

“Recognizing that establishing a new
brand name in the market requires a
little extra sweetening, Kia is also
backing the Sephia with a 24-hour
roadside assistance program that
includes a 24-hour emergency towing,
24-hour lockout service and limited
trip interruption expense
reimbursement.” Kia Comes To Te United
States With Compact Sephia And Plans
For A Sports Utility And A Midsize
Sedan, Salt Lake Tribune (Utah), March
25, 1994, Pg. F2.

Excerpts from representative web pages are set forth
below (emphasis added).
“10% OFF lockout” and “Contact our full
service Dallas locksmith, for 24-hour
lockout service ... .” http://www.adi-
locksmith.com/;

“24 Hour lockout services mobile
unit...”
http://www.coralspringslocksmithspeed.
com;
Serial No. 85143186
6

“Our trained professional locksmiths
provide 24-hour lockout service if you
ever lock your keys in the car, or if
you lock your home office or business
door.”
http://locksmithhome.com/Lockout
Service.aspx.; and

“Call Our Locksmith at ... in Myrtle
Beach, South Carolina, for Responsive
24 Hour Lockout Services ... Call us
... for any of your lockout and
security needs.”
http://www.davidheiserlock.com.

Applicant argues “that the exact wording of the mark
is not being used by other companies to describe car and
home unlocking services, and that the wording is
suggestive.”4 Relying on No Nonsense Fashions Inc. v.
Consolidated Food Corp., 226 USPQ 502 (TTAB 1985),
applicant contends that in determining whether a mark is
merely descriptive there is a three part test “based on the
following guidelines: (1) The degree of imagination
necessary to understand the product; (2) a competitor’s
need to use the same term; and (3) competitors’ current use
of the same or similar terms.”5 Based on these parameters,
applicant argues that “[b]y literal translation, a company
that provided 24 hour lockouts would lock people out of
their home or car 24 hours a day. ... The definition of

4 App. Br. p. 5.

Serial No. 85143186
7
24hrlockouts, therefore, requires the consumer to use his
or her imagination to extrapolate that this is not a
business that creates lockouts 24 hours a day, but rather a
business that assists those who have experienced a
lockout.”6 Further, applicant contends that competitors do
not need to use the term 24 hour lockouts inasmuch as there
are other phrases available, such as, “24 hr lockout
services” or “24 hour emergency lockout services.”
Finally, applicant argues that competitors do not currently
use the phrase but rather use the phrase “24 hour lockout
service” which is different from applicant’s proposed mark
in that it refers to a “lockout service” and thus “lockout
becomes an adjective to describe the type of service that
the company offers.”7
In support of its arguments applicant submitted
several third-party registrations wherein 24, 24 HOUR or
LOCK-formative words are not disclaimed or registered under
Section 2(f) based on acquired distinctiveness.8 Applicant

5 App. Br. p. 9.

6 App. Br. p. 10.

7 App. Br. p. 10.

8 The examining attorney’s objections to Exhibits B, C and D
attached to applicant’s brief are sustained. The record in the
application should be complete prior to the filing of an appeal.
Trademark Rule 2.147(d). Inasmuch as this material was not
submitted during prosecution of the application it is untimely.
Serial No. 85143186
8
also submitted several form affidavits from individuals in
the “locksmithing industry” attesting that: (1) “the term
LOCKOUTS has no relevant meaning or association in [their]
industry”; (2) “LOCKOUTS is not descriptive of any services
used in our industry”; and (3) “[w]hen [they] first heard
the term LOCKOUTS [they] did not have an association that
the term was related to related to [sic] locksmith
services.”
We begin by noting that the examining attorney need
not establish that competitors currently use the phrase.
It is well-established that even if an applicant is the
first and only user of a merely descriptive phrase that
does not justify registration if the only significance
conveyed by the term is merely descriptive. In re Nat’l
Shooting Sports Foundation, Inc., 219 USPQ 1018 (TTAB
1983); Trademark Manual of Examining Procedure (TMEP) (8th
ed. 2011). Further, the fact that other words or phrases
exist for competitors to use does not redeem an otherwise
merely descriptive word or phrase.
The record in this case supports a finding of mere
descriptiveness of the phrase 24 HR LOCKOUTS. As noted
above, we determine the descriptiveness of a term in the

We hasten to add that consideration of this evidence would not
alter our decision.
Serial No. 85143186
9
context of the goods or services at issue, not in the
abstract. In re Chopper Industries, 222 USPQ 258 (TTAB
1984); In re Bright-Crest, Ltd., supra. Clearly, these
terms separately have a descriptive significance in
relation to applicant’s services. 24 HR immediately
conveys to the consumer a significant feature of the
services, namely that they are provided 24 hours. The word
LOCKOUTS names the type of service provided, namely a
lockout service. As shown by the evidence of record, such
services are provided by locksmiths. The question remains
whether combined they present a unique or incongruous
combination.
We find that when combined the terms 24, HR and
LOCKOUTS do not lose their descriptive significance and, in
fact, make clear that applicant provides lockout services
on a 24 hour basis. Thus, we are persuaded by the evidence
of record that the terms 24, HR and LOCKOUTS are merely
descriptive of applicant’s identified services and that
when combined do not present a unique or incongruous
meaning. In re Tower Tech, Inc., 64 USPQ2d 1314 (TTAB
2002). Moreover, the fact that the term LOCKOUTS is in
plural form does not impact our decision.
Applicant’s evidence and arguments do not persuade us
of a different result. Many of the third-party
Serial No. 85143186
10
registrations are for very different services and, more
importantly, they are not conclusive on the question of
descriptiveness because each case must stand on its own
merits. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564 (Fed. Cir. 2001); and In re Scholastic Testing Serv.,
Inc., 196 USPQ 517, 519 (TTAB 1977).
The form affidavits also have little probative value.
“We do not know how much deliberation the people signing
these statements gave them, or whether they understood what
the forms meant.” In re Lorillard Licensing Co., LLC, 99
USPQ2d 1312, 1319 (TTAB 2011). In addition, the “vague
nature” of the statements lessens the probative value. Id.
This is particularly the case here, given the evidence of
record showing the wide use of the term LOCKOUT in
connection with locksmith services. The addition of the S
to the term LOCKOUT perhaps provides the affiants with
enough cover to make a statement that the term has no
meaning in the industry, but the plural form of the word
does not transform the merely descriptive term LOCKOUT to a
suggestive term.
The proposed mark 24 HR LOCKOUTS directly conveys a
significant purpose of the services, namely, to provide 24
hour lockout services. It would not take any speculation
or mental leap to understand that 24 HR LOCKOUTS describes
Serial No. 85143186
11
services that assist people 24 hours when they experience a
lockout.
Viewing 24 HR LOCKOUTS as a whole, we find the
evidence of record sets forth a prima facie case that such
phrase is merely descriptive. Thus, we are persuaded that
when used in connection with applicant’s services, 24 HR
LOCKOUTS immediately describes, without need for conjecture
or speculation, a significant feature or function of
applicant’s services.
Decision: The refusal to register under Section
2(e)(1) is affirmed.