Arrow Industries, Inc.

Trademark Trial and Appeal Board

Apr 2, 1999

No. 75058139 (T.T.A.B. Apr. 2, 1999)

Paper No. 10
HRW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB APRIL 2,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Arrow Industries, Inc.
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Serial No. 75/058,139
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Stephen M. Schaetzel of Jones & Askew for In re Arrow
Industries, Inc.
Gerald C. Seegars, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
_______
Before Seeherman, Wendel and Bucher, Administrative
Trademark Judges.
Opinion by Wendel, Administrative Trademark Judge:
Arrow Industries, Inc. has filed an application to
register the mark HANDLE SACK for plastic trash bags.1
Registration has been finally refused under Section
2(d) of the Trademark Act on the ground of likelihood of
confusion with the mark HANDLE LINER, which is registered

1 Ser. No. 75/058,139, filed Feb. 15, 1996, based on a bona fide
intention to use the mark in commerce.
Ser No. 75/058,139
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for trash can liners and trash bags.2 Registration has also
been finally refused on the basis of applicant’s refusal to
comply with the requirement that a disclaimer be entered of
the word SACK. Applicant and the Examining Attorney have
filed briefs, but no oral hearing was requested.
Applicant takes the position that the term SACK, when
used in connection with plastic trash bags, is not
descriptive, but rather gives the mark HANDLE SACK an
incongruous quality which, in turn, serves to eliminate the
likelihood of confusion with the registered mark, HANDLE
LINER. Applicant argues that a “sack” is a paper article
typically associated with groceries or the like, whereas a
trash bag or liner is a plastic bag which may be used for
many purposes. Thus, in applicant’s view, the term “sack,”
instead of being merely descriptive of its plastic trash
bags, creates the distinguishing feature of applicant’s
mark.
The Examining Attorney, in support of his claim of the
descriptiveness of the term, has made of record several
excerpts of articles from the Nexis database which refer to
trash (or garbage) bags or plastic trash (or garbage) bags
as “sacks.” For example:

2 Reg. No. 1,747,629, issued Jan. 19, 1993. A disclaimer has
been entered of the word “Liner.”
Ser No. 75/058,139
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“...Pat Valdez walked along Sirango Road..., dragging
a stuffed plastic garbage sack. ‘There was so much
trash in those bushes I couldn’t believe it,’ she
said.” (Santa Fe New Mexican, May 5, 1996);
“‘Mom’s throwing out things again,’ he tells the
children. ‘We’d better check the trash sacks.’”
(The Dallas Morning News, July 10, 1995);
“They helped pick up several trash sacks full of
litter along the creek... .” (The Kansas City Star,
Nov. 14, 1996).
In addition, the Examining Attorney has introduced four
printouts from the Trademark Office database of
registrations in which the term SAK (considered the
equivalent of SACK) has been disclaimed, when used as part
of a mark for trash bags or plastic trash bags.3
A word is merely descriptive if it immediately conveys
information regarding a characteristic, function, purpose
or feature of the goods with which it is being used. In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA
1987). We are convinced by the Examining Attorney’s
evidence that the term “sack” is used interchangably with
“bag” in referring to trash bags, or the smaller sized

3 Reg. No. 1,692,897, issued June 9, 1992, for the mark IRON SAK
for trash bags;
Reg. No. 1,689,689, issued May 26, 1992, for the mark SHOP SAK
for plastic trash bags;
Reg. No. 1,564,391, issued Nov. 7, 1989, for the mark STRAP SAK
for plastic trash bags; and
Reg. No. 1,476,799, issued Feb. 16, 1988, for the mark TUFF SAK
for waste basket liners, trash bags, and lawn and leaf bags.
Ser No. 75/058,139
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garbage bags. There is no distinction made on the basis of
whether the bags are made of paper or plastic.4 Applicant
has failed to introduce any evidence that might make us
believe otherwise. Thus, despite applicant’s arguments, we
do not see this to be a situation in which the term SACK is
less than immediately descriptive of the very essence of
the goods on which the mark is being used. We find the
requirement for a disclaimer of the merely descriptive term
SACK to be proper.
With this in mind, we turn to the refusal under
Section 2(d), in view of the registered mark HANDLE LINER
for trash bags and trash can liners. As always, we make
our determination of the likelihood of confusion based on
the relevant du Pont factors.5
Here the goods of the parties are closely related, if
not identical, and would travel in the same channels of

4 It is well settled that the Board may take judicial notice of
dictionary definitions. Marcal Paper Mills, Inc. v. American Can
Co., 212 USPQ 852 (TTAB 1981). Thus, we note the following
dictionary definitions of “sack”:
1.b. a small container made of paper, plastic or other
similar material used to contain various kind of
merchandise (as foodstuffs). Webster’s Third New
International Dictionary (1976);
1.a A large bag of strong, coarse material for holding
foodstuffs or other objects in bulk.
2. A similar but smaller container, often of paper or
plastic. The American Heritage Dictionary of the English
Language (1976).
5 In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973).
Ser No. 75/058,139
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trade and be encountered by the same purchasers. As
pointed out by the Examining Attorney, applicant has made
no argument to the contrary.
Looking to the marks, the Examining Attorney argues
that the term HANDLE is the dominant feature of each, the
remaining term being descriptive of the goods upon which
the mark is used. He further argues that, even if the term
HANDLE is viewed as suggestive, the marks as a whole are so
similar that confusion is likely. Applicant, on the other
hand, insists that when the marks are considered in their
entireties, there is no substantial likelihood of confusion
because of the weakness of the marks and the ability of the
public to distinguish between consumer-oriented marks of
this nature on the basis of small differences.
Although applicant stresses the weakness of the marks
as an additional factor to be taken under consideration,
and that this weakness should limit each to a narrow scope
of protection, applicant has failed to introduce any
evidence in support of this alleged weakness. We have no
evidence before us of any use by third-parties of HANDLE
marks for similar goods. See Triumph Machinery Co. v.
Kentmaster Manufacturing Co., 1 USPQ2d 1826 (TTAB 1987).
Furthermore, while, as applicant contends, the “handle”
designation would most likely be perceived as a suggestive
Ser No. 75/058,139
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reference to the ease with which the user can manipulate
the bag, this same suggestive connotation exists for each
mark. Applicant still should not be permitted to register
a mark very similar to HANDLE LINER for goods which would
reasonably be assumed to emanate from registrant. See In
re Textron Inc., 180 USPQ 341 (TTAB 1973); OPTOmechanisms,
Inc. v. Optoelectronics, Inc., 175 USPQ 246 (TTAB 1972).
Thus, we have no basis for limiting the registered
mark to such a narrow scope of protection as to permit
registration of a highly similar mark for virtually
identical goods. Considering the marks HANDLE LINER and
HANDLE SACK in their entireties, we would admit that there
are distinctions in the appearance and sound of the marks.
But, we find the overall commercial impressions created by
the two marks to be virtually identical, i.e., the
suggestive term HANDLE plus a descriptor of the goods,
LINER or SACK. We believe it highly reasonable for
purchasers to assume that HANDLE SACK trash bags emanate
from the same source as HANDLE LINER trash can liners or
bags. Accordingly, we are convinced that there would be a
likelihood of confusion if applicant were to use the mark
HANDLE SACK for plastic trash bags, in view of registrant’s
use of HANDLE LINER for trash can liners and trash bags.
Ser No. 75/058,139
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Decision: The refusal to register under Section 2(d)
is affirmed. The requirement for a disclaimer of the term
SACK is also affirmed.
E. J. Seeherman
H. R. Wendel
D. E. Bucher
Trademark Administrative Judges,
Trademark Trial and Appeal Board
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