Bass Pro Intellectual Property, L.L.C.

Trademark Trial and Appeal Board

Feb 8, 2021

88438747 (T.T.A.B. Feb. 8, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: February 8, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Bass Pro Intellectual Property, L.L.C.
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Serial No. 88438747
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Bryan K. Wheelock of Harness, Dickey & Pierce,
for Bass Pro Intellectual Property, L.L.C.
Christopher Renneker, Trademark Examining Attorney, Law Office 121,
Richard White, Managing Attorney.
_____

Before Cataldo, Mermelstein and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Bass Pro Intellectual Property, L.L.C., applied to register the standard
character mark OUTDOOR MARKETPLACE on the Principal Register for “Retail
store services in the field of hunting, fishing and outdoor gear” in International Class
35.1

1 Application Serial No. 88438747 was filed on May 20, 2019 based on Applicant’s allegation
of an intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b).

Serial No. 88438747
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The Trademark Examining Attorney refused registration under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the mark is merely
descriptive of the identified services. When the refusal was made final, Applicant filed
an appeal to this Board and requested reconsideration of the refusal, which the
Examining Attorney denied. The appeal resumed and is now fully briefed.
We affirm the refusal.
I. Applicable Law
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of “a mark which, (1) when used on or in connection with the [services] of
the applicant is merely descriptive … of them,” unless the mark has been shown to
have acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C.
§ 1052(f). A mark is “merely descriptive” within the meaning of Section 2(e)(1) “if it
immediately conveys information concerning a feature, quality, or characteristic of
the [services] … for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363,
123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer AG, 488 F.3d 960, 82
USPQ2d 1828, 1831 (Fed. Cir. 2007)).
Whether a mark is merely descriptive is “evaluated ‘in relation to the particular
[services] for which registration is sought, the context in which it is being used, and
the possible significance that the term would have to the average purchaser of the
[services] because of the manner of its use or intended use,’” In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)
(quoting Bayer, 82 USPQ2d at 1831), and “not in the abstract or on the basis of
guesswork.” In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1513 (citing In re
Serial No. 88438747
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Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). We ask “whether
someone who knows what the goods and services are will understand the mark to
convey information about them.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906
F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018) (quoting DuoProSS Meditech Corp.
v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012)
(internal quotation omitted)). A mark is suggestive, and not merely descriptive, if it
requires imagination, thought, and perception on the part of someone who knows
what the [services] are to reach a conclusion about their nature from the mark. See,
e.g., Fat Boys, 118 USPQ2d at 1515.
“Evidence of the public’s understanding of [a] term . . . may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listings in
dictionaries, trade journals, newspapers[,] and other publications.” Real Foods, 128
USPQ2d at 1374 (quoting Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127
USPQ2d 1041, 1046 (Fed. Cir. 2018)). “These sources may include [w]ebsites,
publications and use ‘in labels, packages, or in advertising material directed to the
goods.’” N.C. Lottery, 123 USPQ2d at 1710 (quoting Abcor Dev., 200 USPQ at 218).
II. Evidence and Argument
In addition to a dictionary definition of “marketplace” meaning “market,”2 the
Examining Attorney “provided excerpts from twenty-three Internet websites” to
“demonstrate that the term ‘OUTDOOR MARKETPLACE’ is commonly used in the
relevant industry to refer to retail store services in the field of hunting, fishing and

2 July 2, 2019 Office Action, TSDR 5-6.
Serial No. 88438747
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outdoor gear,”3 including the following examples highlighted in his brief (emphasis
added):
Mountainsmith’s (mountainsmith.com), on its company page, explains
that it “is committed to building the best-made, most durable and
functional packs on the mark; unmatched by anyone for their comfort,
stability, value and performance in the backcountry. The quality and
comfort of all Mountainsmith products – technical backpacks, trekking
poles, tents, travel storage systems, luggage, pet products, adventure
camera bags, as well as our iconic lumbar packs – set a standard of
excellence in the outdoor marketplace.”4

SGB Media (sgbonline) provides a press release for the company,
Granite Gear: “For 33 years, Granite Gear has brought cutting-edge
products to the outdoor marketplace. Their award-winning
backpacks, adventure travel gear, extensive variety of storage sacks,
lifestyle accessories, and canoe gear offer excellence in design and
construction. Granite Gear’s desire is for all outdoor enthusiasts and
travelers to experience the incredible durability and comfort of their
products.”5

The WON (womensoutdoornews.com) article about products added to
the company line of Heat Factory in 2010, titled “Heat Factory
continues to heat up the outdoor marketplace with its new-for-
2010 Great Outdoors Warmer Pack,” which refers to a box of heat
activated warmers used by hunters to stay warm when hunting.6

BackPackers.com article, titled “The Best Outdoor Gear Stores for
Backpacking and Hiking,” which provides a list of twenty outdoor gear
stores such as REI, Eastern Mountain Sports (EMS), and Sierra Trading
Post.7 With regard to Sierra Trading Post in particular, the article
explains that “Sierra Trading Post has physical stores, a robust online
community, and has won awards for its customer service and
development as an innovative company in the outdoor

3 15 TTABVUE 4-5 (Examining Attorney’s Brief).
4 July 29, 2020 Reconsideration Letter, TSDR 5.
5 Id. at 20.
6 Id. at 22-23.
7 Id. at 31-47.
Serial No. 88438747
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marketplace.”8

Shot Business (shotbusiness.com) article reporting that Rock River
Arms, a manufacturer of sporting rifles and pistols for personal defense,
hunting, and competition, began to offers its products through the
wholesale distributor Zanders Sporting Goods. The article explains that
Zanders “is one of the most respected wholesalers in the country,
having served the outdoor marketplace since 1962.”9

Outdoor Mash (outdoormash.com), which lists local ads from around the
country for sporting goods in numerous outdoor activity categories such
as adventure racing, birdwatching, canoeing, caving, climbing, etc., uses
the service mark, “Your Outdoor Marketplace.”10

D&H (dandh.com) press release for an outdoor retailer summer market
show, which explains that “[t]his event engages retailers and dealers
selling merchandise for the outdoor marketplace, including
sporting goods products.”11

Wideopenspaces (wideopenspaces.com) article, titled “Everest.com is
Creating a New Interactive Outdoor Marketplace,” explaining that
the retailer was onboarding over 500 sellers for their official launch on
March 1, 2020 in the hopes of becoming “the biggest marketplace and
community on the net for people who love the outdoors,” and “fill[ing] a
void in the online marketplace left by merchants leaving other sites due
to the products they sell not being allowed on the platform anymore.”12

Mad Jack Outdoor (madjackoutdoor.com), a company that touts itself as
bringing “the most innovative gear on the market, next to world class
brands, alongside a collaborative retail outlet,” explains that it sources
its gear from new companies and entrepreneurs, works in tandem with
proven brands, and partners with independent outdoor retailers. “The
end result is an outdoor marketplace with the best gear selection to
keep you outdoorsy!”13

8 Id. at 35.
9 Id. at 48.
10 Id. at 54-56.
11 Id. at 57-58.
12 Id. at 59-61.
13 Id. at 67.
Serial No. 88438747
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National Shooting Sports Foundation (nssfmarketplace.com), on a page
for dealer services marketing, explains that “[s]ince merging Universal
Packaging Solutions expertise in the shooting, hunting and outdoor
marketplace with 50 years of innovative packaging design by
Blackbourn, we truly do have your packaging needs covered.”14

The Examining Attorney asserts that “[t]he evidence of record demonstrates that
the wording ‘OUTDOOR MARKETPLACE’ is commonly used to describe retail store
services, especially for goods in the field of hunting, fishing and outdoor gear. In the
context of applicant’s services, each word in mark taken separately and collectively
are descriptive of a feature or characteristic of applicant’s services.”15 He further
asserts that when the individual components are combined, they “do not create a
unique, incongruous, or nondescriptive meaning in relation to applicant’s services. As
a result, the mark is merely descriptive of applicant’s services.”16
Applicant concedes that “the evidence shows that term “OUTDOOR
MARKETPLACE” has at least on occasion been used,” but urges that the evidence
“does not show that it has been used to describe “retail store services in the field of
hunting, fishing and outdoor gear.” In particular, Applicant points to the excerpts
from Moutainsmith, SGB Media, The Won, the L.A. Times, Back Packers,17 Shot
Business, D&H, and National Shooting Sports Foundation’s NSSF Marketplace,

14 Id. at 69-70.
15 15 TTABVUE 5 (Examining Attorney’s Brief).
16 Id. at 6.
17 Applicant refers to Moosejaw, but the quoted excerpt in Applicant’s brief comes from the
Back Packers webpage. 12 TTABVUE 7 (Applicant’s Brief); July 29, 2020 Reconsideration
Letter, TSDR 35.
Serial No. 88438747
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which Applicant asserts are “not referring to a retail store.”18
In addition, Applicant contends that “OUTDOOR MARKETPLACE does not
convey an immediate impression about applicant’s services” and is “at most
suggestive of applicant’s services.”19 According to Applicant,
OUTDOOR MARKETPLACE could suggest that the services are
provided outdoors; it could alternatively suggest that the services are
provided in an environment that is like the outdoors, or it could suggest
that the service relate in some way to things outdoors, such as the sale
or leasing of land.” In view of these vague and non-specific meanings,
consumers need to apply a non-trivial amount of imagination, thought
and perception to reach a conclusion as to the nature of applicant’s
services.20

Applicant also, in its brief, (1) lists several third-party registrations for marks that
purportedly include the term MARKET PLACE for unknown goods and services,
which Applicant contends are among “many others of the 450 registrations on the
Principal Register” for the proposition that “the nature of the services is not
immediately ascertainable,”21 (2) asserts that “the records of the U.S. Patent and
Trademark [sic] establish that ‘marketplace’ is also a commonly registered term
(appearing in 522 registrations), and OUTDOOR is even more common, appearing in
more than 1700 registrations” as a purported further indication that OUTDOOR
MARKETPLACE is not merely descriptive because “none of the citations use this
phrase to describe retail services”; and (3) points to a purported registration for the

18 12 TTABVUE 6-7 (Applicant’s Brief).
19 Id. at 7.
20 Id. at 7-8.
21 Id. at 8.
Serial No. 88438747
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mark OUTDOOR MARKETPLACE to show that “[a]lthough applicant recognizes
that it is not controlling on the TTAB, the Office previously determined that
OUTDOOR MARKETPLACE was not merely descriptive of slightly different
services.” However, none of the purported registrations were made of record by
Applicant. Accordingly, we give little probative weight to these unsupported
arguments, which are “unsupported by sworn statements or other evidence, and
‘attorney argument is no substitute for evidence.’” In re OEP Enters., Inc., 2019
USPQ2d 309323 , *14 (TTAB 2019) (quoting Cai v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (internal quotation omitted)).
III. Discussion
We do not concur with Applicant’s contention that the third-party Internet
evidence presented by the Examining Attorney fails to show the term OUTDOOR
MARKETPLACE being used to describe retail store services in the field of hunting,
fishing, or outdoor gear. As the Examining Attorney notes, the evidence shows that
term “being used by retailers to describe their businesses and by non-retailers to
describe retailers.”22 As he further notes, the term “describes the entire outdoor
economic industry and therefore encompasses Applicant’s more narrowly defined
retail store services, which are a subset of the broader economic industry.”23
Applicant’s further contention that the term OUTDOOR MARKETPLACE has
other meanings that “alternatively suggest that the services are provided in an

22 15 TTABVUE 6 (Examining Attorney’s Brief).
23 Id. at 7.
Serial No. 88438747
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environment that is like the outdoors,” or “that the service [sic] relate in some way to
things outdoors, such as the sale or leasing of land,” is unpersuasive. “That a term
may have other meanings in different contexts is not controlling.” Robinson v. Hot
Grabba Leaf, LLC, 2019 USPQ2d 149089, at *5 (TTAB 2019) (citing In re Canine
Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1598 (TTAB 2018)). “It is well settled that
so long as any one of the meanings of a term is descriptive, the term may be
considered to be merely descriptive.” In re Mueller Sports Med., Inc., 126 USPQ2d
1584, 1590 (TTAB 2018) (quoting In re Chopper Indus., 222 USPQ 258, 259 (TTAB
1984)). “[S]omeone who knows what the [services] … are will understand the mark to
convey information about them,” Real Foods, 128 USPQ2d at 1374; DuoProSS, 103
USPQ2d at 1757.
Finally, as discussed above, we have not considered Applicant’s purported third-
party registration evidence because it is not of record. Simply listing the registrations
in one’s brief, or asserting that purportedly relevant third-party registrations exist
for unknown goods and services exist, does not make them of record. See In re Peace
Love World Live, LLC, 127 USPQ2d 1400, 1405 n.17 (TTAB 2018); Calypso Tech. Inc.
v. Calypso Capital Mgmt. LP, 100 USPQ2d 1213, 1217 (TTAB 2011) (summaries of
search results for third-party registrations are not official records and have not been
considered).24

24 As to the purported third-party registration for the term OUTDOOR MARKETPLACE, the
Examining Attorney asserts that it was cancelled on December 22, 1994 and thus should not
be considered because “cancelled … third-party registrations have no probative value other
than as evidence that the registrations were issued.” 15 TTABVUE 9 (Examining Attorney’s
Brief. However, the cancellation is not of record either, so it is a moot point.
Serial No. 88438747
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IV. Conclusion
Based on the record, we find that that the term OUTDOOR MARKETPLACE
immediately conveys information concerning a feature or characteristic of Applicant’s
retail store services in the field of hunting, fishing and outdoor gear. Specifically, the
term immediately conveys information that Applicant’s marketplace (or market)
features the retail sale of goods for use outdoors, namely, when hunting, fishing, or
just being outdoors.
Decision: The refusal is affirmed.