Freehailestimate.com

Trademark Trial and Appeal BoardDec 11, 2012

No. 77781586 (T.T.A.B. Dec. 11, 2012)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: December 11, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Freehailestimate.com _____ Serial No. 77781586 _____ William D. O’Neill of Senninger Powers LLC for Freehailestimate.com. Lydia Belzer, Senior Attorney, Law Office 108 (Andrew Lawrence, Managing Attorney). _____ Before Zervas, Wellington and Greenbaum, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: Freehailestimate.com applied to register on the Principal Register the stylized words FREEHAILESTIMATE.COM, shown below, for “auto repair, namely, paintless dent repair” in International Class 37.1 1 Application Serial No. 77781586, filed July 15, 2009 claiming March 15, 2009 as the date of first use anywhere, and June 10, 2009 as the date of first use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a). The application includes the following description of the mark: “The mark consists of the stylized words ‘FreeHailEstimate.Com’. The word “Free” is underlined.” Serial No. 77781586 2 The examining attorney refused registration of applicant’s mark on the Principal Register on the ground that the mark is merely descriptive of the recited services under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), and suggested that applicant seek registration on the Supplemental Register.2 In its request for reconsideration, which followed the examining attorney’s final refusal, applicant argued against the Section 2(e)(1) refusal, and sought registration with a claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f), in the alternative. The examining attorney ultimately maintained the descriptiveness refusal, rejected applicant’s claim that the mark has acquired distinctiveness and reiterated the suggestion that applicant amend to the Supplemental Register. Applicant filed a timely appeal, and applicant and the examining attorney filed briefs. We turn first to the question of whether FREEHAILESTIMATE.COM is merely descriptive for the services offered by applicant within the meaning of Section 2(e)(1) of the Trademark Act. The test for determining whether a mark is merely descriptive is whether it immediately conveys information concerning a significant quality, characteristic, function, ingredient, attribute or feature of the product or service in connection with which it is used, or intended to be used. See, e.g., In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Gyulay, 820 F.2d 1216, 3USPQ2d 1009 (Fed. Cir. 1987). It is not necessary, in order to find a 2 Applicant complied with the examining attorney’s requirement to submit additional evidence about the services. Serial No. 77781586 3 mark merely descriptive, that the mark describe each feature of the goods or services, only that it describe a single, significant ingredient, quality, characteristic, function, feature, purpose or use of the goods or services. In re Gyulay, 3 USPQ2d at 1009-10.3 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 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 (TTAB 1979). When two or more merely descriptive terms are combined, the determination of whether the composite mark also has a merely descriptive significance turns on the question of whether the combination of terms evokes a new and unique commercial impression. If each component retains its merely descriptive significance in relation to the goods or services, the combination results in a composite that is itself merely descriptive. See, e.g., In re Petroglyph Games, Inc., 3 Applicant’s reliance on Ex Parte Heatube Corp., 109 USPQ 423 (Comm’r Pats. 1956), for the proposition that “the relevant inquiry is whether the matter immediately tells the potential purchaser only what the goods are, or what their function is, or what their characteristics are, or what their purposes is., etc.” is misplaced. See App. Br. p. 3. We note that the test for determining whether a term is merely descriptive has evolved over time, and that we must follow the test as set forth above by the Federal Circuit, our primary reviewing court. See also In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2001) (“A mark may be merely descriptive even if it does not describe the ‘full scope and extent’ of the applicant’s goods and services,” citing In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1346, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)). Serial No. 77781586 4 91 USPQ2d 1332 (TTAB 2009) (BATTLECAM is merely descriptive of computer game software); In re Tower Tech Inc., 64 USPQ2d at 1317 (TTAB 2002) (SMARTTOWER is merely descriptive of commercial and industrial cooling towers); and In re Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001) (AGENTBEANS is merely descriptive of computer programs for use in development and deployment of application programs). We consider first the meaning of the individual words “free,” “hail,” and “estimate” in the mark to determine whether their combination results in a term which as a whole immediately conveys information regarding applicant’s “auto repair, namely, paintless dent repair.” See In re Hester Industries, Inc., 230 USPQ 797, 798 n.5 (TTAB 1986) (“It is perfectly acceptable to separate a compound mark and discuss the implications of each part thereof … provided that the ultimate determination is made on the basis of the mark in its entirety.”). The examining attorney submitted a definition of “free” as “not costing or charging anything,” “hail” as “precipitation in the form of small balls or lumps usually consisting of concentric layers of clear ice and compact snow,” and “estimate” as “a statement of the cost of work to be done.”4 We consider these dictionary definitions to be probative of the relevant public's understanding of the terms FREE HAIL ESTIMATE as applied to applicant's recited services, “auto repair, namely, paintless dent repair.” See, e.g., In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) (“Evidence that a term is merely descriptive to the relevant purchasing public ‘may be obtained from any competent 4 http://www.merriam-webster.com, submitted with November 23, 2009 Office action. Serial No. 77781586 5 source, such as dictionaries, newspapers, or surveys.’” (citation omitted)); see also In re Digital Research Inc., 4 USPQ2d 1242, 1243 (TTAB 1987) (CONCURRENT PC- DOS and CONCURRENT DOS merely descriptive of “computer programs recorded on disk”). When viewed in connection with applicant’s services, the individual words FREE, HAIL and ESTIMATE retain their descriptive meaning in combination, rather than evoking a new and unique commercial impression. See e.g., In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370 (Fed. Cir. 2004) (PATENTS.COM merely descriptive of computer software for managing a database of records that could include patents for tracking the status of the records by means of the Internet). Further, top-level domain names (TLD) generally have no source-indicating function; as such, the addition of the TLD “.com” to the descriptive term “FREEHAILESTIMATE” does not remove the descriptive quality of the mark. See In re Hotels.com, L.P., 573 F.3d 1300, 91 USPQ2d 1532, 1535 (Fed. Cir. 2009) (“the generic term ‘hotels’ did not lose its generic character by placement in the domain name HOTELS.COM”), citing In re Reed Elsevier Properties Inc., 482 F.3d 1376, 82 USPQ2d 1378 (Fed. Cir. 2007) (LAWYERS.COM held generic for “providing an online interactive database featuring information exchange in the fields of law, legal news, and legal services.”). Accordingly, the mark FREEHAILESTIMATE.COM is merely descriptive of a significant feature of applicant’s paintless dent repair services for automobiles, Serial No. 77781586 6 namely, immediately indicating that applicant provides, at no cost to the consumer, a statement of the expected cost for paintless dent repair of hail damaged vehicles. In fact, applicant’s own website,5 which features the “Auto Hail Estimating and Repair Group,” touts the provision of free hail estimates as an integral feature of applicant’s paintless dent repair services for automobiles: •FreeHailEstimate was established by a group of elite paintless dent removal specialists with over 25 years combined experience to provide vehicle owners and trade professionals with the most comprehensive hail damage repair service! •Assess and estimate with insurance adjuster, utilizing CAT unit as drive-through, which ensures the most accurate estimates. •“Fast Response to estimate with insurance adjusters and our drive-through = Top dollar for your claim.” •Free Hail Estimate is constantly striving to improve the hail damage repair process for our customers… You will see that the freehailestimate.com website is easy to navigate, and offers a variety of features to guide you through the entire process of getting your vehicle(s) estimated and repaired properly. . . . As you navigate from the home page to the "Vehicle Owner" section you will find a couple of features that are designed to familiarize you with paintless dent removal (PDR) and walk you through the process step-by-step from the time your car is involved in a hail storm to the moment we hand you your keys back and you drive away in a car that looks like it did before the damage occurred. By using our website as a tool, you can feel confident that you can make educated decisions throughout the estimating and repair process, and we hope that you will feel comfortable leaving your vehicle in our care. . . . We hope you enjoy the new website and choose Free Hail Estimate for your hail estimating and repair needs. 5 Submitted with November 23, 2009 Office action. Serial No. 77781586 7 •A few PDR experts got together and decided it was time to create a business that would streamline the entire process of hail damage estimating and repair for vehicle owners, trade professionals and their insurance providers. •My car was damaged in the hail storm. What do I do now? … It is best to contact Free Hail Estimate to get an outside estimate first to take to your insurance adjuster. This will ensure a proper estimate, and save a lot of time in the long run. Call us at 1-877-774-HAIL. We will provide you the location of a Free Hail Estimate catastrophe response unit. All estimates are quick, easy, accurate and best of all, free of charge to you. In addition, the examining attorney made of record copies of printouts from third-party websites showing usage of the terms “free,” “hail” and “estimate” (or variations of “estimate”) in relation to paintless dent repair services, some of which use the exact term “free hail estimate.”6 The following excerpts from these printouts indicates that it is not unusual for other dent repair entities to offer free hail estimates as an essential component of their paintless dent repair services: •Dent Squad USA. Paintless Dent Repair. “Hail Damage Repair.” “Request a free hail estimate.” “Paintless Dent Repair Specialist.” http://dentsquadusa.com •Rick’s Restyling and Dent Repair. “Free Hail Repair Estimate.” http://10coupons.com/cornhusker/coupon- ricks-restyling-and-dent-repair-free-hail-repair- estimate/3783/ •Preferred Collision Shop. “We specialize in car and truck hail damage repairs…” “FREE Web Estimate: Hail Damage Quick Quote.“ “Preferred customers are provided with … free hail estimates….” “Techniques we may use for hail repair: … PDR ‘Paintless Dent Removal’ is a technique used mostly to remove dents without damaging 6 Submitted with September 16, 2010 and October 26, 2011 Office actions. Serial No. 77781586 8 paint.” http://www.collisionbodyshopscottsdale.com/hail- damage-repairs.html •The Dent Dude. Paintless Dent Removal. “Let our trained PDR professionals handle your hail damage repair from the filing of the claim to the finished product.” “Damaged car?…Free Hail Estimator.” http://www.dentdude.com/links.php •Aurora Auto Recon. Under a photo of a large sign that says “Hail Damage Repair. Free Estimates” with a phone number: “If you got caught in any of the recent hail storms, you might want to know more about paintless dent repair…. Owner Michael Smith has been an independent PDR specialist in the Denver metro area for 18 years…. He’ll give you a free estimate, and even a free PDR demonstration if you’re interested.” http://www.auroraautorecon.com. •Excel Dent Removal. ”Free hail damage estimate for your car, van, truck or SUV. Excel Dent Removal will provide a Free Estimate to remove the hail dents from your car with paintless dent removal.” http://www.merchantcircle.com/business/Excel.Dent.Remo val763-780-4000/coupons. •Dent Crafters. ”Do you have hail damage? DENT crafters can help. With over 14 years of Paintless Dent Removal (PDR) experience, I have repaired hail damaged vehicles in 16 States including Colorado where I have resided since 1996. You can imagine the hail damage extremes that I have seen across the country and historically Colorado gets more than it’s [sic] fair share. Feel free to call me first, go through my Free Estimate link below….” http://dentfx.com/HailDamageRepair.html. The examining attorney also made of record other internet evidence to support her contention that it is common for auto repair shops to provide free estimates of the expected repair costs.7 In addition to a printout listing the first 20 7 Submitted with September 16, 2010 and October 26, 2011 Office actions. Serial No. 77781586 9 of 34 search results for “free auto repair estimates” near “Alexandria, VA,” from the hellonetwork.com website, this evidence includes the following excerpts: •RepairTrust.com. ”Free online auto repair estimates. (with several sample estimates attached). http://www.repairtrust.com/contact_price_quote/html. •Virginia Auto Service. “Get an immediate estimate for the repairs you need.” http://www.virginiaautoservice.com. •AA Precise Collision Repair. “We are here to provide you with pretty much anything car related that you may need. Our services include, but are not limited to auto body repair, collision repair, free estimates.…” http://aaprecisecollision.com. •Lamon Auto Body. “Do you need an auto body repair? Free collision estimate?” http://www.lamonautobody.com. •Automotive Engineering. ”Free auto repair estimate – Car repair quote Mesa, AZ”. http://www.autorepairinmesa.com/contactus. •Twin Automotive and Transmission. ”Free auto repair estimate … For a free estimate over the phone, Call ….” http://www.twincharlotte.com. The examining attorney also submitted four third-party registrations for auto repair services, residing on the Principal Register with a disclaimer of HAIL, or where HAIL is the subject of a Section 2(f) claim:8 •Registration 2414714: HAIL PRO for “repair services for automobiles and other vehicles, namely, for the removal of dents.” (HAIL disclaimed); •Registration 2876453: XHAIL AUTO HAIL DAMAGE REPAIR for “automobile body repair namely, dent removal and removal of damage caused by hail; Repair 8 Submitted with November 23, 2009 Office action. Serial No. 77781586 10 services, namely, repair and removal of hail damaged surfaces.” (AUTO HAIL DAMAGE REPAIR disclaimed}; •Registration 3556179 DENT CENTER AUTO HAIL REPAIR for “automobile body repair and finishing for others” (2(f) entire mark, “CENTER,” “AUTO” and “REPAIR” disclaimed); and •Registration 3349771: HAIL GUARD NETWORK for “repair of vehicles dented by hailstones, particularly vehicles in auto/truck dealerships.” (HAIL and NETWORK disclaimed). In addition, the examining attorney made of record other third-party registrations for various marks incorporating the terms FREE, HAIL or ESTIMATE for a variety of repair and other services either on the Supplemental Register or with the relevant term disclaimed.9 The following examples are illustrative: •Registration 2679198: FOUR HOURS OR FREE for “maintenance and repair services for computer hardware, printers and accessories therefor.” (Supplemental Register); •Registration 2844116: SAME DAY SERVICE OR IT’S FREE! for “. . . repair and maintenance of heating and air conditioning equipment.” (Supplemental Register); •Registration 3543144: RESTORU FIRE WATER WIND HAIL for “construction and repair of buildings.” (Principal Register, HAIL disclaimed); •Registration No. 3604694: REPAIR PRICE ESTIMATE for “online advertising for automotive repair shops” and “providing an internet website featuring information, advice and customer reviews on automotive repair services.” (Supplemental Register); and •Registration 3074982: SAME DAY ON-SITE COMPUTER SERVICES . . . OR IT’S FREE! for “installation, maintenance and repair of computer 9 Id. Serial No. 77781586 11 hardware [and] computer networks.” (Supplemental Register). It is well settled that third-party registrations featuring the same or similar goods and/or services as applicant’s goods and/or services are probative evidence on the issue of descriptiveness where the relevant word or term is disclaimed, registered under Trademark Act Section 2(f) based on a showing of acquired distinctiveness, or registered on the Supplemental Register. See Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1564-65, 4 USPQ2d 1793, 1797 (Fed. Cir. 1987); In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006); In re Finisar Corp., 78 USPQ2d 1618, 1621 (TTAB 2006). Applicant argues that “the words… are all squeezed together into a single word, which is not in the English language. It therefore cannot fairly be deemed to be ‘merely descriptive.’” App. Br. p. 3. However, it would not take any complicated reasoning or cogitation for consumers considering the mark in conjunction with the recital of services to conclude that the mark conveys information about a significant feature of applicant’s services, namely, that applicant offers a free hail estimate in connection with its paintless dent removal services. Accordingly, “someone who knows what the goods or services are will understand the mark to convey information about them.” DuoProSS Meditech Corp. v. Inviro Medical Devices, Ltd., ___ F.3d ___, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); see also In re Tower Tech Inc., 64 USPQ2d at 1316-17 (TTAB 2002). Deleting the spaces between the words does not change the commercial impression of the term; consumers will understand FREEHAILESTIMATE to be the equivalent of “FREE HAIL ESTIMATE.” See, e.g., Serial No. 77781586 12 In re Cox Enterprises Inc., 82 USPQ2d 1040, 1043 (TTAB 2007) (“THEATL is simply a compressed version of the descriptive term THE ATL without a space between the two words. Without the space, THEATL is equivalent in sound, meaning and impression to THE ATL and is equally descriptive of applicant’s goods.”). In fact, the composition of the stylized mark, as shown in applicant’s drawing, specimen, and website, emphasizes the three separate words. Applicant further argues that a “free estimate” is incongruous, because “if the services are free there is no cost, and hence there could be no statement of cost for something that has no cost.” App. Br. p. 5. However, taken in the context of the services as identified, we find no incongruity in the juxtaposition of the merely descriptive terms “free” and “estimate,” and the addition of the term “hail” does not create a bizarre or incongruous meaning as applied to applicant’s “auto repair, namely paintless dent repair” services. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968). Moreover, there is nothing in the record upon which to base a conclusion that potential consumers of such services would require a multiple-step reasoning process to understand the plain meaning of the term. Indeed, as discussed above, it is common for auto repair businesses to offer free estimates, including free hail estimates, to their customers. Nor are we persuaded by applicant’s argument that the underlining and different shading of the word FREE, and the font of the mark, are distinctive enough to overcome the Section 2(e)(1) refusal. We agree with the examining attorney that the degree of stylization shown in the lettering of the applied-for mark Serial No. 77781586 13 is not sufficiently striking, unique or distinctive such that it creates a commercial impression separate and apart from the unregistrable components of the mark. See In re Sambado & Son Inc., 45 USPQ2d 1312 (TTAB 1997); In re Bonni Keller Collections Ltd., 6 USPQ2d 1224 (TTAB 1987). If anything, the shading and font emphasize that applicant provides the hail estimate aspect of its services for free. Finally, despite applicant’s argument to the contrary, the fact that insurance companies often compensate customers for applicant’s services is not relevant to this analysis. App. Br. p. 5. We reiterate that the issue is whether applicant’s mark is merely descriptive of its paintless dent repair services; the issue is not whether the consumer or his/her insurance company will pay for applicant’s services, because the decision of who will pay for applicant’s services will not affect how the purchasing public, in this case, presumably car owners in areas susceptible to hail damage, and owners of hail damaged cars, perceive applicant’s mark. In view of the above, we find that the term FREEHAILESTIMATE.COM is a highly descriptive designation which is not registrable absent a sufficient showing of acquired distinctiveness. We turn then to the sufficiency of applicant's evidence of acquired distinctiveness. The burden is on applicant to show acquired distinctiveness. The more highly descriptive the term, the less likely it is to indicate source in any one party. See In re Bongrain Int’l Corp., 894 F.2d 1316, 13 USPQ2d 1727 (Fed. Cir. 1990). Thus, “the greater the degree of descriptiveness the term has, the heavier the burden to prove it has attained secondary meaning.” Yamaha Int’l Corp. v. Serial No. 77781586 14 Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1008 (Fed. Cir. 1988). In re Hollywood Brands, Inc., 214 F.2d 139, 102 USPQ 294, 295 (CCPA 1954) (“[T}here is no doubt that Congress intended that the burden of proof [under Section 2(f)] should rest upon the applicant”). “[L]ogically that standard becomes more difficult as the mark’s descriptiveness increases.” Yamaha, 6 USPQ2d at 1008. The applicant may present any competent evidence to establish that a mark has acquired distinctiveness. The amount and character of such evidence depends on the facts of each case, Roux Laboratories, Inc. v. Clairol Inc., 427 F.2d 823, 166 USPQ 34 (CCPA 1970), and more evidence is required where a mark is so highly descriptive that purchasers seeing the matter in relation to the goods or services would be less likely to believe that it indicates source in any one party. See In re Bongrain, 13 USPQ2d 1727 (Fed. Cir. 1990). This evidence can include the length of use of the mark, advertising expenditures, sales, survey evidence, and affidavits asserting source-indicating recognition. It is the examining attorney’s position that applicant has not used this highly descriptive mark long enough for it to have acquired distinctiveness, and that applicant’s evidence of acquired distinctiveness is insufficient. This evidence consists of 21 form declarations from possible customers and business professionals in the paintless dent repair industry, stating that they: have become aware of FREEHAILESTIMATE.COM because of various factors including its large, bold, tractor trailers promoting FREEHAILESTIMATE.COM; its unique business model of promptly providing paintless dent repair services on a large scale to communities struck by hail storms, and its advertising presence in the Serial No. 77781586 15 community at the time such services are required due to a recent hail storm, and that “[a]pplicant’s mark FREEHAILESTIMATE.COM operates to indicate the applicant company as the source of the paintless dent repair services, and [they] associate this mark with this company”; internet exposure; local market “blitz” materials, namely, door-hangers, direct mail pieces, and DVDs; a cover letter from the distributor of applicant’s door hangers in two zip codes for Phoenix, Arizona in December 2010; two pages from the 2000 U.S. Census Bureau statistics report for the aforementioned two Phoenix zip codes; and “moving billboards,” namely, trucks and trailers bearing applicant’s mark, that applicant uses to perform its service.10 For the reasons discussed below, we agree with the examining attorney. First, the public has had little time to become aware of applicant’s mark in association with its services. Applicant asserts, in its application, to have been using the mark in commerce only since June 10, 2009, i.e., for fewer than two years when it made its claim of acquired distinctiveness, and for fewer than three years when it filed this appeal. Second, while affidavits or declarations that assert recognition of the mark as a source indicator are relevant in establishing acquired distinctiveness, the value of those materials depends on the statements made and the identity of the affiant or declarant. See In re Udor U.S.A. Inc., 89 USPQ2d 1978, (TTAB 2009); In re Dimitri’s Inc., 9 USPQ2d 1666, 1668 (TTAB 1988). Proof of distinctiveness also requires more than a small number of people who associate a mark with the 10 Submitted with March 15, 2011 Request for Reconsideration. Serial No. 77781586 16 applicant. See In re The Paint Prods. Co., 8 USPQ2d 1863, 1866 (TTAB 1988) (declarations must be weighed against the highly descriptive nature of the words that compose the mark); see also Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1723 (TTAB 2010) (finding sixteen declarations of little persuasive value, as they were nearly identical in wording and only one of the declarants was described as an end consumer). In this regard, we note that none of the 21 form declarations that applicant provided are from individual car owners in areas susceptible to hail damage, or individual owners of hail damaged cars, and only 3 are from car dealers or leasers who could be end consumers of applicant’s services. The other 18 declarations are from technicians who work as independent contractors to companies that provide paintless dent repair services, whom applicant might hire. There is no indication that the technicians are potential purchasers of applicant’s services. The existence of three possible end users who associate FREEHAILESTIMATE.COM with applicant does not demonstrate that the relevant purchasers in general recognize FREEHAILESTIMATE.COM as a mark. Therefore, this evidence is not sufficient to prove secondary meaning in applicant’s highly descriptive mark. Id.; see, e.g., Poselux Chemical Co. v. Parsons Ammonia Co., 299 F.2d 855, 862, 132 USPQ 627, 633 (CCPA 1962), and In re Personal Counselors Inc., 184 USPQ 761, 763 (TTAB 1974). Third, applicant’s other evidence of acquired distinctiveness is insufficient. With respect to its internet exposure, applicant claims a “substantial and Serial No. 77781586 17 continuous presence in electronic media” based on its own website and Facebook page. App. Br., p. 6. However, as the examining attorney points out, there is no evidence regarding the number of hits or visits to the website, no statistics on the frequency or number of visits to the Facebook page other than that 159 people ‘like’ applicant’s Facebook page, and no way to tell how many of the 159 people are employed by or related to applicant, rather than members of the relevant consuming public. App. Br. pp. 16-17. In any event, 159 is not a large number in the present context. See, e.g., In re Country Music Ass’n, 100 USPQ2d 1824, 1834 (TTAB 2011) (acquired distinctiveness established where applicant introduced, inter alia, evidence that its web site promoting its association services had over 15 million hits in a single year). Applicant also relies on its product demonstration DVDs, claiming that it “typically distributes about 50,000 of these high-impact DVDs each year” as part of a “local marketing blitz.” App. Br. p. 8. However, the number of years the DVDs were distributed is unclear. Even if we give applicant the benefit of the doubt, and accept that 50,000 DVDs were distributed each year for three years, i.e., the number of years between applicant’s first use of the mark in commerce and the filing of this appeal, there is no evidence detailing their distribution, such as how, where or to whom they were distributed, or if they were distributed to the same or different households each year. Ex Att. Br. p. 17. Moreover, as was the case with the number of Facebook “likes” discussed above, 150,000 DVDs distributed over three years is a fairly low figure. Serial No. 77781586 18 Similarly, while the record includes a photograph of a “moving billboard,” as the examining attorney notes, there is no evidence as to how many existed, how frequently they were used, where they were driven, or whether they were effective. Ex. Att. Br. p. 18. Applicant also made of record door hangers and fliers, which applicant asserts are representative of applicant’s direct mail advertising and marketing “blitzes” when it enters a new geographic area, and proof, in the form of a letter from the distributor, of the distribution of 20,000 such units within a two zip code area in Phoenix, Arizona, over a three-day period in early December, 2010.11 App. Br. pp. 7-8. Relying on data from the 2000 U.S. Census Bureau statistics report for those two zip codes (as the 2010 data was not available), applicant asserts that this three-day distribution reached 44% of the households located within those areas.12 App. Br. p. 8. Even assuming the population in those two zip codes did not change significantly from 2000 to 2010 such that the 44% figure is accurate, we cannot extrapolate from this data how many, if any, other “blitzes” were as successful, where those “blitzes” were, and when they occurred. In this regard, we note that the distributor’s letter confirms that his company has “done previous business transactions” with applicant. However, this evidence is not particularly probative because the distributor provided no additional information about these transactions. 11 Submitted with March 15, 2011 Request for Reconsideration. 12 Submitted with March 15, 2011 Request for Reconsideration. Serial No. 77781586 19 Finally, applicant submitted no evidence of advertising figures, specific dollar sales under the mark, unsolicited media coverage or consumer surveys to bolster its claim that the mark is recognized as a source identifier. In sum, the evidence submitted by applicant simply is inadequate to demonstrate that FREEHAILESTIMATE.COM has acquired distinctiveness as a trademark for applicant’s identified services. After a careful review of the record, we find that in view of the highly descriptive nature of the term FREEHAILESTIMATE.COM, and applicant’s use of the mark for only a short time, applicant’s evidence of acquired distinctiveness is insufficient to support registrability. Decision: The refusal to register on the ground that applicant's mark is merely descriptive under Section 2(e)(1) is affirmed, and applicant has failed to prove that its mark has acquired distinctiveness under Section 2(f).