Century Mfg. Co.

Trademark Trial and Appeal Board

Jan 15, 2002

No. 74451390 (T.T.A.B. Jan. 15, 2002)

1/15/02

Paper No. 34
JQ

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Century Mfg. Co.
________

Serial No. 74/451,390
_______

Curtis B. Hamre, John A. Clifford and Kristina M. Foudray
of Merchant & Gould for applicant.

Brian Neville, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______

Before Quinn, Hairston and Holtzman, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

An application has been filed by Century Mfg. Co. to
register the term BOOSTER PAC for “cordless rechargeable
portable power supply for automotive, home and leisure.”1
Applicant asserts that the mark it seeks to register is
inherently distinctive but, in the alternative, claims,

1 Application Serial No. 74/451,390, filed October 21, 1993, based on an
allegation of a bona fide intention to use the mark in commerce.
Applicant asserted a second basis for filing, namely a right of
priority under Section 44 of the Act based on a Canadian application
that eventually matured into Canadian Registration No. 377,669. The
registration includes a disclaimer of the word “Booster.”
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 74/451,390
2
pursuant to Section 2(f) of the Trademark Act, that the
term BOOSTER PAC has acquired distinctiveness.
The Examining Attorney has refused registration under
Section 2(e)(1) of the Act on the ground that the proposed
mark BOOSTER PAC, when used in connection with applicant’s
goods, is generic and, thus, incapable of functioning as a
source identifying mark. The Examining Attorney further
contends that even if the term BOOSTER PAC is found to be
not generic, it is merely descriptive. Although the
Examining Attorney never specifically ruled on the
sufficiency of the Section 2(f) evidence, it is apparent
that he essentially found that the evidence of acquired
distinctiveness is insufficient to support registration on
the Principal Register.2
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney submitted briefs. An
oral hearing was not requested.
The Examining Attorney maintains that the term sought
to be registered is a mere misspelling of the generic term
“battery pack” and, thus, is itself generic. In support of
the refusal, the Examining Attorney submitted excerpts

2 In maintaining the genericness refusal, the Examining Attorney simply
asserted that a claim of acquired distinctiveness was unavailable to
applicant.
Ser No. 74/451,390
3
retrieved from the NEXIS database and the Internet showing
uses of “booster pack.”
Applicant argues that the proposed mark is inherently
distinctive and is not merely descriptive or generic.
Without conceding that the term BOOSTER PAC is merely
descriptive, applicant submitted an alternative claim of
acquired distinctiveness. In support of its position,
applicant submitted the affidavit and declaration of two of
applicant’s employees, with related exhibits. Also of
record are several of applicant’s promotional materials,
and seven third-party registrations incorporating the term
“booster.”
The Record
We take judicial notice of the following dictionary
definitions3:
booster: an electric generator
inserted in series in a circuit so that
it either adds to or subtracts from the
voltage furnished by another source.
The IEEE Standard Dictionary of
Electrical and Electronic Terms (6th ed.
1996)

booster: a generator connected in a
series with a circuit for the purpose
of increasing the voltage of that
circuit. Generally used in connection
with a system where a storage battery

3 Dictionary definitions are proper subject matter for judicial notice.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213
USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser No. 74/451,390
4
carries part of the load. The booster
increases the voltage to a point
necessary for charging the battery.
Illustrated Dictionary for Electrical
Workers (2nd ed. 2002)

booster battery: a charged battery
connected to a discharged battery in
order to start the engine.
Delmar’s Automotive Dictionary (1997)

boost: to increase, amplify or add to,
particularly at a more vigorous rate
than normal, as for example in boost
charging a battery.
Dictionary of Automotive Engineering
(2nd ed. 1995)

boost start: starting an engine of
which the battery is discharged or
feeble by applying a higher than normal
voltage and current to the electrical
system from an external source.
Dictionary of Automotive Engineering
(2nd ed. 1995)

pack: a compact bundle of goods or
equipment arranged for convenience in
carrying.
Webster’s Third New International
Dictionary (unabridged ed. 1993)

Also of record are excerpts retrieved from the
Internet that show, according to the Examining Attorney,
generic uses, some by competitors in the trade, of the term
“booster pack” in connection with goods of the type sold by
applicant:
Booster Packs and Jumper Cables
Available. In response to cold weather
difficulties in starting vehicles, the
Safety and Security Department at the
Wildwood campus has booster packs and
Ser No. 74/451,390
5
jumper cables to assist students,
faculty and staff members with this
problem. The booster pack, which can
be attached to your vehicle’s battery
to provide power to start it, may be
borrowed from the Department in the
event that you cannot locate another
vehicle to jump your vehicle.
Harrisburg Area Community College
Safety and Security Update
(www.hacc.edu)

Midstate has
-chargers
-booster packs
-test equipment
-wire and cable
-battery boxes
-inverters
(www.midstatebattery.com)

Royal Battery Starter Alternator
Product List
Click On Category To View Products
-Batteries
-Battery Accessories
-Battery Cables
-Battery Chargers
-Battery Terminals
-Booster Packs
(www.royalbattery.com)

Don’t buy those cheap, inferior knock-
offs that were made for the consumer
markets! This is the hand-held battery
booster pack made for professional
use!...The Jump-N-Carry uses only top
quality components to assure you that
you won’t be let down when you need it
most!
(www.geniproducts.com)

Jump-N-Carry—Booster Pack
Eliminates the need for booster cables.
(www.iautoparts.com)

Ser No. 74/451,390
6
Next we jump started (with a booster
pack)...
(www.bmwseven.com)

Don’t risk being stranded in the
boonies. Reach for this
portable/rechargeable 99-Amp Booster
Pack by Clarke.
Hook-up this zippy 900-Amp Booster Pack
and you could be off and running in a
flash.
(www.shop.store.yahoo.com)

The record also includes three NEXIS excerpts showing the
following uses4: “The patrol’s pickup trucks come equipped
with fuel and water, jumper cables, battery booster packs,
tire-changing equipment...” (The Richmond Times Dispatch,
December 24, 1999); “The thief removed a Pioneer CD stereo
player and a booster pack.” (Newsday, February 18, 1996);
and “Fishing poles and reels, a tackle box and a portable
battery booster pack, total value $350, were reported
stolen from a boat dock nearby. (Asbury Park Press, May
15, 1996).
Applicant submitted the affidavit of Steve Bentson,
applicant’s president. Mr. Bentson states that applicant
has made “continuous and exclusive use” of BOOSTER PAC

4 Several more NEXIS excerpts were introduced by the Examining Attorney.
As pointed out by applicant, however, many were duplicates. And, even
more significantly for purpose of our analysis, many of the articles,
as critiqued by applicant, pertained to goods (e.g., computer
accessories, rockets and cameras) different from the goods listed in
the present application. In the final tally, only fifteen of the
Internet and NEXIS excerpts are relevant to the specific issue herein.
Ser No. 74/451,390
7
since September 1993, and that the applied-for mark has
become distinctive of applicant’s goods due to applicant’s
sales volume and advertising. Mr. Bentson asserts that the
mark is well known and closely associated with applicant,
and that retailers and consumers have come to recognize the
term BOOSTER PAC as a trademark identifying applicant as
the source of its goods. Mr. Bentson further states that
no competitor of applicant uses the term BOOSTER PAC or the
like to describe or identify its goods. He also avers that
applicant has marketed its products under BOOSTER PAC in a
manner to educate consumers of its trademark significance,
by using all capital letters and a “TM” symbol immediately
after the term in printed materials, and by displaying the
term in a manner to draw attention to its trademark
significance. Applicant has won an award from a trade
association for its product packaging. Mr. Bentson sets
forth applicant’s sales under the mark and advertising
expenditures.
G. Robert Gey, identified as a “Director” of
applicant, submitted his declaration wherein he makes many
of the same statements made earlier by Mr. Bentson. In
addition, Mr. Gey states that applicant is the market
leader in the field of portable power supplies, and that
applicant’s BOOSTER PAC product has been the industry’s
Ser No. 74/451,390
8
number-one product in unit sales for at least each of the
last six years. Mr. Gey updates the sales and advertising
figures set forth by Mr. Bentson. Through the years 1994-
2000, applicant’s total sales under the proposed mark
exceed $147 million, and advertising expenditures are
approximately $2.25 million.
The Law
We turn first to the issues of whether the term BOSTER
PAC is generic, or whether it is just merely descriptive,
when used in connection with “cordless rechargeable
portable power supply for automotive, home and leisure.” A
mark is merely descriptive if, as used in connection with
the goods and/or services, it describes, i.e., immediately
conveys information about, an ingredient, quality,
characteristic, feature, etc. thereof, or if it directly
conveys information regarding the nature, function,
purpose, or use of the goods and/or services. See: In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA
1978); In re Eden Foods Inc., 24 USPQ2d 1757 (TTAB 1992);
and In re American Screen Process Equipment Co., 175 USPQ
561 (TTAB 1972). The issue is not determined in a vacuum,
but rather the mere descriptiveness of the mark is analyzed
as the mark is used in connection with the goods and/or
services. A mark is a generic name if it refers to the
Ser No. 74/451,390
9
class or category of goods and/or services on or in
connection with which it is used. In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807 (Fed. Cir.
2001), citing H. Marvin Ginn Corp. v. International
Association of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ
528 (Fed. Cir. 1986). The test for determining whether a
mark is generic is its primary significance to the relevant
public. Section 14(3) of the Act; In re American Fertility
Society, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999);
Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551
(Fed. Cir. 1991); and H. Marvin Ginn Corp. v. International
Association of Fire Chiefs, Inc., supra. The United States
Patent and Trademark Office has the burden of establishing
by clear evidence that a mark is generic and thus
unregistrable. In re Merrill Lynch, Pierce, Fenner and
Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987).
Evidence of the relevant public’s understanding of a term
may be obtained from any competent source, including
testimony, surveys, dictionaries, trade journals,
newspapers, and other publications. In re Northland
Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961 (Fed.
Cir. 1985).
Ser No. 74/451,390
10
Genericness
The type of product involved here is a “booster
battery” as defined in the automotive dictionary.
Applicant’s product, as identified in the application, is a
portable power supply for various uses. These uses include
jump starting (or “boost starting” as defined in the
automotive dictionary) an automobile. In point of fact,
jump starting automotive engines is one of the primary uses
highlighted by applicant in its promotional literature. As
shown by the dictionary evidence, the term “booster” is
generic for a generator or battery used to increase voltage
to charge a battery.5
The term “PAC” is the phonetic equivalent of the word
“pack.” The term “pack” aptly describes the nature of
applicant’s booster battery, that is, it is a conveniently
carried compact bundle of portable power supply items.6 As
shown by the advertising literature, applicant’s product
includes cables, charge level indicating lights, test
switch and a power outlet. Applicant’s product falls
within the parameters of the dictionary meaning of “pack.”

5 While no means dispositive of the matter, we also note that the
Canadian registration of BOOSTER PAC that forms one of the bases of the
filing of the application in this country includes a disclaimer of the
term “booster.”
6 Applicant’s product includes a built-in handle for carrying.
Ser No. 74/451,390
11
Accordingly, the proposed mark BOOSTER PAC, when
considered as a whole, is generic for a conveniently
carried power supply pack used to boost start engines.
In reaching our decision, we acknowledge that the
several examples of applicant’s promotional materials are
all devoid of any generic or even descriptive uses of
“booster pack.” Nevertheless, the record includes examples
of generic uses of “booster pack” by at least four
competitors in the trade. Applicant would have us conclude
that these constitute infringing uses and that it was
intending to write to these users (presumably cease and
desist letters). Given the generic nature of “booster
pack,” however, it would appear that there has been no
misappropriation of applicant’s alleged mark. Rather, the
term should be available for use by others in the trade.7
Further, there are generic uses in some media articles.
Although applicant contends that the uses are specific
references to applicant’s product, there is no evidence in
support of this contention.
The third-party registrations relied upon by applicant
are not persuasive of a different result in this case. The

7 The record is devoid of any evidence that applicant even contacted the
competitors or that any of them ceased using the term “booster pack” in
connection with its own competing product. Even if this were the case,
such actions have little relevance to the issues herein.
Ser No. 74/451,390
12
marks and goods are different from the ones involved here.
Moreover, we are not privy to the records in the files of
these registrations. We are concerned with the
registrability of the specific mark for the specific goods
in this case, and the determination of registrability of
particular marks by the Office cannot control the result in
another case involving a different mark for different
goods. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001)[“Even if some prior
registrations had some characteristics similar to
[applicant’s application], the PTO’s allowance of such
prior registrations does not bind the Board or this
court.”].
We recognize that applicant uses BOOSTER PAC in a
prominent manner and that the term is followed by a “TM”
designation. Nevertheless, use of the “TM” designation in
connection with BOOSTER PAC does not make an otherwise
unregistrable term a trademark. See: In re Pennzoil
Products Co., 20 USPQ2d 1753, 1760 at n. 15 (TTAB 1991).
We find that the Office has met its burden in showing
by clear evidence that the proposed mark as a whole is
generic. The critical evidence here that distinguishes the
present case from In re Dial-A-Mattress Operating Corp.,
supra, is the Internet and NEXIS evidence, especially the
Ser No. 74/451,390
13
evidence showing competitors’ generic uses of “booster
pack.”. Based on the record before us, we find the term
BOOSTER PAC is generic for the type of power supply product
sold by applicant.
Mere Descriptiveness
Even if we had not found the term BOOSTER PAC to be
incapable of identifying and distinguishing applicant’s
goods, we nevertheless would affirm the refusal to register
on the ground of mere descriptivness. Contrary to
applicant’s contention that BOOSTER PAC is inherently
distinctive, the term sought to be registered immediately
conveys the impression that applicant’s product is a
compact, portable piece of equipment used as a booster to
boost start a battery, especially an automotive engine
battery. The evidence of record clearly shows that the
term has a specific and commonly understood meaning when it
is used in connection with goods of the type sold by
applicant.
Acquired Distinctiveness
In finding that the term BOOSTER PAC is incapable of
being a source identifier for applicant’s power supply
product, we have considered, of course, all of the evidence
touching on the public perception of this designation,
including the evidence of acquired distinctiveness. As to
Ser No. 74/451,390
14
acquired distinctiveness, applicant has the burden to
establish a prima facie case of acquired distinctiveness.
Yamaha International Corp. v. Hoshino Gakki Co., Ltd., 840
F.2d 1572, 6 USPQ2d 1001, 1006 (Fed. Cir. 1988).
As indicated above, applicant submitted an affidavit
and a declaration setting forth some specifics about
applicant’s use of its proposed mark since 1993.
Applicant’s total sales of the product under the involved
mark exceed $147 million, and advertising expenditures are
approximately $2.25 million.
Applicant’s use and revenues suggest that applicant
has enjoyed a degree of business success. In point of
fact, as Mr. Gey attests, applicant’s product is ranked
number one in sales in the portable power supply field.
Nonetheless, this evidence demonstrates only the popularity
of applicant’s goods, not that the relevant customers of
such goods have come to view the term BOOSTER PAC as
applicant’s source-identifying trademark. In re Bongrain
International Corp., 894 F.2d 1316, 13 USPQ2d 1727 (Fed.
Cir. 1990); and In re Recorded Books Inc., 42 USPQ2d 1275
(TTAB 1997). The issue here is the achievement of
distinctiveness and, given the generic/highly descriptive
nature of applicant’s term, the evidence falls short of
Ser No. 74/451,390
15
establishing this. Applicant’s evidence is outweighed by
the other evidence of record.
To be clear on this significant point, we emphasize
that the record is completely devoid of direct evidence
that consumers view BOOSTER PAC as a distinctive source
indicator for applicant’s goods.
Accordingly, even if the term BOOSTER PAC were found
to be not generic, but merely descriptive, given the highly
descriptive nature of the term BOOSTER PAC we would need to
see a great deal more evidence (especially in the form of
direct evidence from customers) than what applicant has
submitted in order to find that the designation has become
distinctive of applicant’s goods. That is to say, the
greater the degree of descriptiveness, the greater the
evidentiary burden on the user to establish acquired
distinctiveness. Yamaha Int’l. Corp. v. Hoshino Gakki Co.,
supra; and In re Merrill Lynch, Pierce, Fenner & Smith,
Inc., supra. See also: Restatement (Third) of Unfair
Competition (1993), Section 13, comment e:

The sufficiency of the evidence offered to prove
secondary meaning should be evaluated in light of
the nature of the designation. Highly
descriptive terms, for example, are less likely
to be perceived as trademarks and more likely to
be useful to competing sellers than are less
descriptive terms. More substantial evidence of
secondary meaning thus will ordinarily be
Ser No. 74/451,390
16
required to establish their distinctiveness.
Indeed, some designations may be incapable of
acquiring distinctiveness.

Applicant’s contention that it is the only one in the
trade using BOOSTER PAC is not persuasive. We respond by
simply saying that the designation, as used in connection
with applicant’s goods, is not unique in that it is not
distinctive. See: In re E S Robbins Corp., 30 USPQ2d
1540, 1542-43 (TTAB 1992). As shown by the record, at
least four competitors use the term “booster pack” in a
generic manner, and others have referred to the type of
product as a “booster pack.”
In sum, the term BOOSTER PAC is a common designation
used in the industry to identify goods of the type sold by
applicant. The term BOOSTER PAC is generic and does not
and could not function as a trademark to distinguish
applicant’s goods from those of others and serve as an
indication of origin. The term sought to be registered
should not be subject to exclusive appropriation, but
rather should remain free for others in the industry to use
in connection with their similar goods. In re Boston Beer
Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999).
Decision: The refusal to register is affirmed.