Catco, Inc.

Trademark Trial and Appeal Board

Oct 14, 1999

No. 75285549 (T.T.A.B. Oct. 14, 1999)

Paper No. 15
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB OCT. 14, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Catco, Inc.
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Serial No. 75/285,549
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Michael Ebert of Hopgood, Calimafde, Kalil & Judlowe for
Catco, Inc.
Karla Perkins, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
_______
Before Seeherman, Hairston and Bottorff, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Catco, Inc. has filed an application to register the
mark BLOW UPS for goods which it has identified as “toys
and playthings, namely, collapsible stuffed toy figures.”1
Registration has been finally refused 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
Ser No. 75/285,549
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identified goods. Further, the Examining Attorney
maintains that the above identification of goods fails to
accurately describe the goods and has required that it be
amended to “collapsible toy figures featuring stuffed and
inflatable components.”
Applicant and the Examining Attorney have filed
briefs, but no oral hearing was requested.
We turn first to the requirement to amend the
identification of goods. According to the Examining
Attorney, applicant’s toy figures will contain stuffed and
inflatable components and, thus, the identification fails
to accurately describe the goods. The Examining Attorney
points to applicant’s Patent No. 5,813,896 for “Collapsible
Stuffed Toy Figures” which shows that the head and torso of
the toy figures contain inflated balloons. The Examining
Attorney maintains that an accurate identification of goods
is particularly important here because “collapsible stuffed
toys” is not a recognized category of toys.
Applicant, on the other hand, argues that its goods
are properly identified and that it should not be required
to limit the identification of goods to “inflatable
components” as the means to collapse the toy figures.

1 Serial No. 75/285,549, filed on May 2, 1997, which alleges a
bona fide intention to use the mark in commerce.
Ser No. 75/285,549
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According to applicant, a collapsible toy figure could be
one having a cavity therein which is water filled, the
figure being collapsed by expelling the water. Further,
applicant argues that the word “collapsible” has a well
established meaning and would be understood to refer to a
toy figure that is capable of being caved in or flattened.
While we have carefully considered the Examining
Attorney’s arguments, we nonetheless agree with applicant
that the identification of goods is neither indefinite nor
inaccurate. We note that both “stuffed toys” and “toy
figures” are acceptable identifications of goods in the
Office’s Acceptable Identification of Goods and Services
Manual. Moreover, applicant has gone a step further and
added the word “collapsible” which more specifically
describes the goods. Also, we are not persuaded by the
Examining Attorney’s argument that “collapsible stuffed toy
figures” is unacceptable because it is not a recognized
category of goods, inasmuch as the identification of goods
which she is requiring, i.e., “collapsible toy figures
featuring stuffed and inflatable components,” is not a
recognized category, either.
In view of the foregoing, the Examining Attorney’s
requirement that the identification of goods be amended is
reversed.
Ser No. 75/285,549
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We turn next to the refusal to register under Section
2(e)(1) of the Trademark Act. The Examining Attorney
maintains that the term BLOW UPS immediately describes a
feature of applicant’s goods, namely, that the toy figures
are inflatable or are blown up.
In support of the refusal to register, the Examining
Attorney has submitted copies of five third-party
registrations which include goods that are identified as
“blow-up toys” or “blow-up balls.” Also, the Examining
Attorney has submitted a number of excerpts of articles
taken from the NEXIS data base wherein the term “blow
up(s)” has been used in connection with inflatable toys.
The following are representative examples:
A carnival-like atmosphere filled the air.
Vendors were selling giant peanut blow-up
toys and numerous other Carter souvenirs
on High Street. Sunday Telegram,
(Worcester, MA) October 26, 1997;
The blow-up vinyl toy has a red, circular
base and three yellow rings for sidewalls.
The inflatable toys have been sold since
November 1994. The Idaho Statesman, May 6,
1996;
These aren’t your basic baby blow-up toys,
either. These things are big -- the 4-foot
tall gorilla, for example, that lies on a
patio lounge with its arm crossed behind
its head. The Seattle Times, August 5,
1991;
Now that Henry Wolfe’s inflatable vinyl
alligators, dinosaurs, and sea monsters
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have become standard gear in more than
500,000 backyard pools around the world,
he’s moved his business on to toy-store
shelves with a cast of dozens of colorful
blow-up animals. St. Petersburg Times,
November 16, 1987; and
Sure, there are blow-ups that are fun for
paddling around a swimming pool, toys to
take in a tub or play with on the beach.
Outdoor Life, March 1984.
Further, the Examining Attorney submitted a definition
taken from Webster’s II New College Dictionary (1995)
wherein “blow up” is defined as, inter alia, “to fill with
air; inflate.”
Applicant, in urging reversal of the refusal to
register, contends that at most the term BLOW UPS is
suggestive of its goods. It is essentially applicant’s
position that the term “blow-up” is the proper name for a
large balloon which, when blown up, is shaped to resemble a
cartoon character or other figure, but that such term is
not merely descriptive of a fabric-covered stuffed figure
such as applicant’s, where only sections of the figure are
stuffed with balloons and the balloons are not visible to
purchasers.
A term is considered to be merely descriptive of goods
within the meaning of Section 2(e)(1) of the Trademark Act
if it immediately describes an ingredient, quality,
characteristic or feature thereof, or if it directly
Ser No. 75/285,549
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conveys information regarding the nature, function, purpose
or use of the goods. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215 (CCPA 1978). It is not necessary
that a term describe all of the properties or functions of
the goods in order for it to be considered to be merely
descriptive thereof; rather, it is sufficient if the term
describes a single significant attribute or idea about
them. In re Venture Associates, 226 USPQ 285 (TTAB 1985).
Moreover, the question of whether a mark is merely
descriptive must be determined not in the abstract, that
is, not by asking whether one who sees the mark alone can
guess what the applicant’s goods are, but rather in
relation to the goods for which registration is sought,
that is, by asking whether, when the mark is applied to the
goods, it immediately conveys information about their
nature. In re Bright-Crest, Ltd., 104 USPQ 591 (TTAB
1979).
At the outset, we should make clear that the issue
here is mere descriptiveness; not genericness. The
Examining Attorney does not argue that BLOW UPS is the
generic name for applicant’s toy figures. Rather, she
contends that the term describes a feature of applicant’s
toy figures. The evidence submitted by the Examining
Attorney establishes that the term “blow-up(s)” is used to
Ser No. 75/285,549
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describe inflatable toys. Moreover, applicant has
acknowledged that its toy figures will contain inflatable
components:
. . . the goods take the form of a fabric-
covered figure, such as that of Mickey
Mouse, whose arms and legs are stuffed with
compressible material, but whose head
is stuffed with an inflated balloon and
whose torso is also balloon stuffed.
(June 1, 1998 response, page 2).
We find, therefore, that BLOW UPS is merely
descriptive of applicant’s toy figures because it
immediately describes a feature thereof, namely, that they
are inflated or blown up. That this is a significant
feature of such goods is evidenced in applicant’s patent:
The advantage of using balloons to fill out
the torso and head of the figure is that it
is less expensive to make than to fill these
large volume components with compressible
padding. But the more important advantage
of the balloons is that they render the
stuffed figure collapsible so that the
figure can occupy much less space when
packaged and stored.
. . .
In the absence of the balloons, the filling
in the fabric covered figure is mainly in
the appendages. Hence it becomes feasible
to clean the figure in a standard washing
machine, for the amount of water absorbed
in the stuffing in the appendages is
relatively small and can easily be squeezed
out.
Finally, while applicant has maintained that the
balloons are not visible, it is obvious from the above
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that, at the very least, those purchasers who wash their
toy figures will see the balloons upon removal from the
figures.
Decision: The refusal to register under Section
2(e)(1) is affirmed and the requirement to amend the
identification of goods is reversed.
E. J. Seeherman
P. T. Hairston
C. M. Bottorff
Administrative Trademark Judges
Trademark Trial and Appeal Board
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