Garry Jalowka

Trademark Trial and Appeal BoardMay 16, 2008

No. 78919452 (T.T.A.B. May. 16, 2008)

Mailed: May 16, 2008 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Jalowka ________ Serial No. 78919452 _______ Thomas D. Foster, Esq. for Garry Jalowka. Ira Goodsaid, Trademark Examining Attorney, Law Office 101 (Ronald R. Sussman, Managing Attorney). _______ Before Zervas, Walsh and Cataldo, Administrative Trademark Judges. Opinion by Zervas, Administrative Trademark Judge: Garry Jalowka filed, on June 28, 2006, an application (Serial No. 78919452) to register on the Principal Register the mark AMERICA’S WINDOW CLEANER (in standard character form) for services ultimately amended to the following: “franchise services, namely, offering technical assistance in the establishment and/or operation of cleaning and maintenance businesses; wholesale catalog ordering, mail order and store services featuring cleaning and maintenance equipment, supplies and materials; on-line ordering services featuring cleaning and maintenance equipment, supplies and materials; business management and consultation in the nature of client account management for others in the field of cleaning THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Ser. No. 78919452 2 and maintenance services” in International Class 35; and “cleaning of buildings, industrial premises and residential houses; window cleaning; consulting services rendered in conjunction with the foregoing” in International Class 37. The application is based on a bona fide intent to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C. §1051(b). Applicant has entered a disclaimer of WINDOW CLEANER. Registration has been finally refused under Section 2(e)(2) of the Trademark Act, 15 U.S.C. §1052(e)(2) on the ground that applicant's mark is primarily geographically descriptive of applicant's services. Applicant has appealed the final refusal. Both applicant and the examining attorney have filed briefs. We affirm the refusal to register. As a general proposition, in order for registration of a mark to be properly refused on the ground that it is primarily geographically descriptive of an applicant's goods or services, it is necessary to establish (i) that the primary significance of the mark is that of the name of a place generally known to the public, and (ii) that the public would make a goods/place or services/place association, that is, believe that the goods or services for which the mark is sought to be registered originate in Ser. No. 78919452 3 that place. See In re JT Tobacconists, 59 USPQ2d 1080 (TTAB 2001); University Book Store v. University of Wisconsin Board of Regents, 33 USPQ2d 1385 (TTAB 1994); In re California Pizza Kitchen Inc., 10 USPQ2d 1704 (TTAB 1988), citing In re Societe Generale des Eaux Minerales de Vittel S.A., 824 F.2d 957, 3 USPQ2d 1450 (Fed. Cir. 1987). Provided that these conditions are met, and the goods or services come from the place named by or in the mark, the mark is primarily geographically descriptive. In the dictionary definition accompanying the examining attorney’s brief, the word “America” is defined in Merriam-Webster Online Dictionary located at merriam- webster.com as “1 either continent (North America or … South America) of the western hemisphere … 3 UNITED STATES OF AMERICA.”1 There is no dispute that the area described by AMERICA is neither remote nor obscure. In fact, every member of the general public would certainly know the meaning of the word. Consequently, there is simply no 1 Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), provides that the record in an application should be complete prior to the filing of an appeal. See also TBMP § 1207.01 (2d ed. rev. 2004). However, the Board may take judicial notice of dictionary definitions, including online dictionary entries which exist in printed format, and we take judicial notice of the definition provided by the examining attorney. See In re CyberFinancial.Net Inc., 65 USPQ2d 1789 (TTAB 2002). See also University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). Ser. No. 78919452 4 doubt that the term AMERICA’S particularly signifies origin in the United States of America. Turning then to the term WINDOW CLEANER in applicant’s mark, the examining attorney maintains that this term is generic or highly descriptive of applicant's services. Applicant has not disputed this, and in fact, has entered a disclaimer of the term. A disclaimer is essentially an admission of the merely descriptive nature of such term and the lack of an exclusive right therein at the time of the disclaimer. In re DNI Holdings Ltd., 77 USPQ2d 1435 (TTAB 2005). Thus, WINDOW CLEANER clearly constitutes a highly descriptive or generic term for, at the very least, applicant's various services in the cleaning and maintenance businesses, including window cleaning and consulting services regarding window cleaning, set forth in his application. The presence of a generic or highly descriptive term in a mark that also contains a primarily geographically descriptive term does not serve to detract from the primary geographical significance of the mark as a whole; AMERICA’S therefore is the dominant origin- indicating feature of the mark. See, e.g., In re Cambridge Digital Systems, 1 USPQ2d 1659, 1662 (TTAB 1986) (“[W]e do not believe that the addition of the highly descriptive word DIGITAL and the design detract from the primary Ser. No. 78919452 5 geographic significance of the mark, CAMBRIDGE being the dominant origin-indicating feature of the mark.”); In re BankAmerica Corp., 231 USPQ 873 (TTAB 1986). The primary significance of the mark AMERICA’S WINDOW CLEANER, when considered as a whole, is therefore geographical in connection with window cleaning and related services. Additionally, although this is an intent-to-use application, there appears to be no question that the services listed in the application will come from the United States of America. Applicant is identified as a United States citizen in his application, with a California address. Where there is no genuine issue that the geographical significance of a term is its primary significance, and where the geographical place named by the term is neither obscure nor remote, a public association of the goods with the place may ordinarily be presumed from the fact that the applicant's goods come from the geographical place named in the mark. See, e.g., In re California Pizza Kitchen Inc., supra; In re Handler Fenton Westerns, Inc., 214 USPQ 848 (TTAB 1982). Thus, a public association of the services with the United States of America is presumed. Applicant has offered no explanation as to why his various services would not be associated by Ser. No. 78919452 6 the purchasing public with the United States of America if sold under the mark AMERICA’S WINDOW CLEANER. Applicant submitted numerous registrations for marks containing AMERICA or AMERICA’S with his response to the initial Office action and argues that “[t]hey are highly similar in formation and offer strong evidence in support of registration.” Brief at p. 7. These registrations are not persuasive because each case must be decided on its own merits based on the evidence of record. See In re Nett Designs Inc., 236 F3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001). We obviously are not privy to the records involved in the registered marks and, in any event, the allowance of those registrations does not control the result in this case, which involves a different mark. Further, applicant, with his request for reconsideration, submitted a list of registrations containing AMERICA’S or AMERICAS taken from the Office’s TESS database of marks. The submission of a list of registrations is insufficient to make them of record. In re Duofold Inc., 184 USPQ 638 (TTAB 1978). Also, the list is of extremely limited probative value because it does not show the goods or services for the marks, and does not indicate whether the marks have been registered on the Ser. No. 78919452 7 Supplemental Register or under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f). Applicant, at p. 6 of his brief, has argued: [T]here is no possibility that a consumer, upon encountering Applicant's mark will believe that the term AMERICA’S primarily signifies that the United States is the location nor origin of the services. Instead, the term AMERICA’S, when used in conjunction with the phrase WINDOW CLEANER introduces precisely the type of “nuance” that should remove the Mark from the primarily geographically descriptive category. Namely, the addition of the term AMERICA’S invokes a sense of patriotism and even personal ownership in the services being offered under the mark. The services offered are befitting of “America’s windows,” and all of the pride and patriotism associated therewith. Applicant has not supported his argument regarding this “nuance” with any evidence. Suffice it to say that we are not persuaded the consuming public will recognize “a sense of patriotism and even personal ownership” in the mark AMERICA’S WINDOW CLEANER for window cleaning and services related thereto. In view of the foregoing, we find that the examining attorney has established a prima facie case that applicant's mark is geographically descriptive of applicant's services under the test articulated earlier in this decision, and applicant has not rebutted the examining attorney’s prima facie case. Ser. No. 78919452 8 Decision: The refusal to register under Section 2(e)(2) is affirmed for the services in International Classes 35 and 37.