Bargoose Home Textiles Inc.

Trademark Trial and Appeal BoardMay 27, 2009

No. 77255007 (T.T.A.B. May. 27, 2009)

Mailed: May 27, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Bargoose Home Textiles Inc. ________ Serial No. 77255007 _______ Julie B. Seyler of Abelman Frayne & Schwab for Bargoose Home Textiles Inc. Warren L. Olandria, Trademark Examining Attorney, Law Office 112 (Angela Wilson, Managing Attorney). _______ Before Seeherman, Rogers and Cataldo, Administrative Trademark Judges. Opinion by Seeherman, Administrative Trademark Judge: Bargoose Home Textiles Inc. has appealed from the final refusal of the trademark examining attorney to register “AllergyGreen” in standard character format, as a trademark for “protective bedding, namely zippered and fitted covers for mattresses, comforters; bed sheets and waterproof mattress pads; reusable bed pads.”1 Registration has been refused pursuant to Section 2(e)(1) of the 1 Application Serial No. 77255007, filed August 14, 2007, based on Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b). THIS OPINION IS NOT A PRECEDENT OF THE TTAB Ser No. 77255007 2 Trademark Act, 15 U.S.C. § 1052(e)(1), on the basis that applicant’s mark is merely descriptive of its identified goods. Applicant and the examining attorney have filed appeal briefs. A term is deemed to be merely descriptive of goods or services, within the meaning of Section 2(e)(1) of the Trademark Act if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services. In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). A term need not immediately convey an idea of each and every specific feature of the applicant’s goods or services in order to be considered to be merely descriptive; rather, it is sufficient that the term describes one significant attribute, function or property of the goods or services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is merely descriptive is determined not in the abstract, but in relation to the goods or services for which registration is sought, the context in which it is being used on or in connection with the goods or services, and the possible significance that the term would have to the average purchaser of the goods or services because of Ser No. 77255007 3 the manner of its use; that a term may have other meanings in different contexts is not controlling. In re Bright- Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). Moreover, if the mark is descriptive of any of the goods or services for which registration is sought, it is proper to refuse registration as to the entire class. In re Analog Devices Inc., 6 USPQ2d 1808 (TTAB 1988), aff’d without pub. op., 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989). In support of his position that the mark is merely descriptive, the examining attorney has submitted definitions for “allergy” and “green,” the most relevant of which are: Allergy: An abnormally high sensitivity to certain substances, such as pollens, foods, or microorganisms. Common indications of allergy may include sneezing, itching, and skin rashes. Green: adj. Beneficial to the environment: green recycling policies. Favoring or supporting environmentalism: green legislators who strengthened pollution controls. n. A supporter of a social and political movement that espouses global environmental protection, bioregionalism, social responsibility, and nonviolence.2 2 The definitions are taken from The American Heritage Dictionary of the English Language, 4th ed., © 2000. Ser No. 77255007 4 In addition, the examining attorney made of record webpages taken from various Internet websites and the Lexis/Nexis data base showing that “allergy bedding” and “green bedding” or “allergy” and “green” have been used to describe bedding products. See, for example, the following: The website for Allergy Solutions, Inc. which uses “Allergy Mattress and Pillow Covers” as a category descriptor, and includes such text as “Providing only Certified allergy covers for over a decade” and “ALL FABRICS ARE CERTIFIED ALLERGY COVERS WITH LIFETIME WARRANTY.” The products featured are mattress and pillow covers/encasings. The website for Allergy Control Products states “Our High Quality Allergy Bedding is Designed for Your Healthiest, Most Comfortable Night’s Sleep” and uses “Allergy Bedding” as a product category, in which, inter alia, sheets and mattress pads are listed. The text states, “For allergy sufferers or persons looking for a healthier home and healthy night’s sleep, our allergy bedding selection offers hypo- allergenic bedding….” The Sylvane website uses “Allergy Bedding” as a product category title, referencing such items as mattresses, sheets, mattress pads and bedding enclosures. The website for The Allergy Relief Center lists “Pristine Allergy Bedding” and “Taskmaster Allergy Poly/Cotton Bedding” for mattress and pillow encasements. Ser No. 77255007 5 Struggling with allergies? Head to this store. Stanfield’s Vacuum and Allergy Relief Center in Greenwood is more than just a vacuum cleaner fix-it shop. It carries vacuum cleaners alongside allergy-relief products. In stock: allergy bedding, air purifiers, …. “The Indianapolis Star,” January 7, 2008 Make the child’s room a haven of clean air—no pets, no dust, no smoke and low humidity. Use allergy bedding and wash it once a week in hot water. “The Commercial Appeal” (Memphis, TN), May 1, 2007 An article at the Our 365 website entitled “Baby’s Green Bedding: From naptime to nighttime” discusses for products such as linens, “the greening” and “the greenest,” and brands that are chemical free, and specifically mentions products for allergy sufferers. The website for BNET has an article from the April 8, 2008 Business Wire entitled “Green Bedding Leader Vivetique Unveils the Eco-Lux Mattress in Time for Earth Day, April 22.” The website for SPRIG, from June 4, 2008, with the slogan “Sassy People are Into Green,” lists items “by Type of Green” (e.g., waste-reducing, sustainable, organic, recycled) including a wide variety of “bed” items including bed linens. The Green Home Environment Store website lists “products for going green” and offers organic blankets and comforters and duvet and comforter covers made of “chemically untreated cotton.” Ser No. 77255007 6 An article from the ECOMALL website entitled “Going Green in Your Bedroom” discusses the advantages of a green bedroom and how to achieve one. “The next step in creating a green bedroom is chemical-free bedding. …look for bedding produced without bleaching and wool that has not been chemically treated. Sheets from organic cotton, cultivated without polluting pesticides or synthetic fertilizers, not only benefit the environment, but also your health.” In response to the green movement, Fabricut is introducing green bedding “using Milliken recycled polyester greige goods that are transfer printed in this country,” he related. “Home Textiles Today,” May 5, 2008 Bamboo Sheets for Greener Globe (headline) Her Spring/Summer 2008 KN Luxury Home Collection includes sumptuous bamboo and cotton sheet sets, featuring a silky-feeling, 60 percent bamboo, 40 percent cotton blend. … Commissioned to create the ultimate sleep sanctuary at a four-star, boutique hotel in the Windy City, Neuberger featured the new “green” bedding in the KN Tranquility Suite…. Neuberger’s sheet sets, available in four serene colors inspired by nature…. KN Luxury Home products are available in department and specialty stores and online…. “Hartford Courant,” April 18, 2008 In addition, the examining attorney has submitted evidence indicating that green bedding products are attractive to people who have allergies: Ser No. 77255007 7 A February 2007 article on the Bed Times website states that “the American bedding industry is sprouting its own green products,” and that some consumers “with chemical sensitivities or allergies seek alternatives to traditional mattresses. … Natura World, a manufacturer based in Cambridge, Ontario, Canada, has been a player in the green bedding game since the company was founded in 1994.” The website, www.best-in-bedding.com, in its section “Welcome to the allergy info section at best-in-bedding.com,” discusses how for people with allergies, certain types of bedding can make them miserable, and that “Making the right choices in bedding can make the difference between sleepless, stuffy nights and miserable mornings or restful sleep.” … “Allergy sufferers should choose 100% cotton bed linens or other 100% natural fiber bedding.” The above material shows that the terms “allergy” and “green” are used to describe bedding such as the items identified in applicant’s identification of goods, and that, in fact, “allergy bedding” and “green bedding” are used as category descriptors of such goods. As a result, each of these terms directly conveys information about a significant characteristic of bedding. We are not persuaded by applicant’s argument that because the definition of “allergy” refers to a condition, “allergy” cannot be viewed as merely descriptive of protective bedding; the evidence clearly shows that “allergy” is used Ser No. 77255007 8 as an adjective to describe such bedding. As for the meaning of the word “green,” again the evidence shows that this word is used as a descriptive term for bedding. Applicant argues that “green,” in the context of bedding, may have various interpretations, and therefore “if a clear and concise definition of green cannot be found within the bedding industry, the word cannot, inherently, be merely descriptive….” Brief, p. 5. We are not persuaded by this argument either. As the examining attorney points out, although “green” bedding may have various meanings, all of these meanings describe a characteristic of the products as being environmentally friendly, whether the products are organic, or are made from renewable resources, or are recyclable. See In re Entenmann's Inc., 15 USPQ2d 1750, 1751 (TTAB 1990), in which the Board found OATNUT merely descriptive for bread, despite the fact that the mark did not inform purchasers what type of nut was used in the bread. “While it is true that in order to be held merely descriptive, a term must describe with some particularity a quality or ingredient of the product in question, it need not describe it exactly.” See also, In re Analog Devices, supra, 6 USPQ2d at 1810: Applicant argues that the term is too nebulous and vague to be commercially useful for competitors of applicant to Ser No. 77255007 9 use to describe any products. However, while we readily concede that the category of products which the term “analog devices” names encompasses a wide range of products in a variety of fields, we do not believe this fact enables such a term to be exclusively appropriated by an entity for products, some of which fall within that category of goods. For example, while terms such as “digital devices,” “computer hardware,” “computer software” and “electronic devices,” just to name a few, may be broad and even nebulous terms, nevertheless, these terms may not be exclusively appropriated but must be left for all to use in their ordinary generic sense. Accordingly, the question that we must decide is whether, when these two descriptive terms, “allergy” and “green,” are combined as the term “AllergyGreen,” the descriptive nature of the terms remains, or whether the combined term is, as applicant asserts, an incongruous expression. First, although applicant has not argued to the contrary, we point out that consumers will view the mark as a combination of the two words, ALLERGY and GREEN. The omission of the space between the words does not give the mark a different impression. Applicant depicts its standard character mark with a capital “A” and a capital “G,” so that the two words are readily apparent. Ser No. 77255007 10 Applicant claims that “AllergyGreen” is incongruous and therefore suggestive because a noun, ALLERGY, precedes an adjective, GREEN. However, as the evidence shows, in the bedding industry “allergy” is used as an adjective for bedding products, and would be understood as such in applicant’s mark. Applicant relies on the cases Ex parte Barker, 92 USPQ 218 (Com’r Pats. 1952) (CHERRY-BERRY-BING for fruit and berry preserve) and In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE for bakery products). However, in those cases the marks convey a double entendre: in addition to the descriptive meaning of the marks, each also has a non-descriptive meaning of, in the first case, a song title, and in the second, a phrase from a well-known nursery rhyme. Applicant has not indicated what the non-descriptive meaning for “AllergyGreen” would be, and one is not apparent to us. To be found a double entendre, the non-descriptive meaning must be readily recognizable. See In re The Place Inc., 76 USPQ2d 1467, 1470 (TTAB 2005) (“The multiple interpretations that make an expression a ‘double entendre’ must be associations that the public would make fairly readily,” quoting TMEP § 1213.05(c)). Ser No. 77255007 11 Nor do we find In re Shutts, 217 USPQ 363 (TTAB 1983), another case cited by applicant, to be on point. In that case, the Board held that SNO-RAKE was not merely descriptive of a snow removal hand tool because people do not rake snow, and therefore the term “rake” in the mark was incongruous. However, in the present situation, the evidence shows that both of the terms in applicant’s mark, ALLERGY and GREEN, are used by competitors and writers to describe products of the type identified in applicant’s application. We will not burden this opinion with a discussion of each of the many cases cited by applicant. Suffice it to say that in this particular case, given the evidence that “allergy” and “green” are recognized descriptive terms for bedding products, when these terms are combined in the mark “AllergyGreen” and this mark is applied to protective bedding, consumers will immediately understand that “AllergyGreen” describes bedding that has both an anti- allergy feature and is environmentally friendly. Decision: The refusal of registration is affirmed.