Global Growers Foods Company Limited

Trademark Trial and Appeal BoardNov 9, 2017

No. 87036675 (T.T.A.B. Nov. 9, 2017)

This Opinion is Not a Precedent of the TTAB Mailed: November 9, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Global Growers Foods Company Limited _____ Serial No. 87036675 _____ Joshua Gerben and Eric J. Perrott of Gerben Law Firm PLLC, for Global Growers Foods Company Limited. Deirdre G. Robertson, Trademark Examining Attorney, Law Office 111, Robert L. Lorenzo, Managing Attorney. _____ Before Bergsman, Gorowitz and Hightower, Administrative Trademark Judges. Opinion by Gorowitz, Administrative Trademark Judge: Pursuant to Federal Rule of Civil Procedure Rule 60(a), (Fed. R. Civ. P. R.60(a)), we hereby vacate our August 30, 2017 decision, sua sponte, to address an omission related to our determination that the phrase GLOBAL GROWERS is not descriptive. The revised decision correcting the omission follows. Serial No. 87036675 - 2 - Global Growers Foods Company Limited (“Applicant”) seeks registration on the Principal Register of the mark for, Frozen fruits; Frozen vegetables in International Class 29.1 The following description of the mark was entered into the record: The mark consists of the stylized design of a globe with blue and white water areas and green continents; superimposed on top of the globe is a red banner, outlined in green, with white shading, containing the wording "GLOBAL GROWERS" in light yellow; on top of the globe are two leaves, one light green and the other green. The white background is not claimed as a feature of the mark. The Trademark Examining Attorney issued an Office Action requiring a disclaimer of the phrase “GLOBAL GROWERS” on the ground that the phrase is merely descriptive of Applicant’s frozen fruits and vegetables. When the requirement was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, thus affirming the refusal, the appeal was resumed. We reverse the refusal to register. Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), states “[t]he Director may require the applicant to disclaim an unregistrable component of a mark otherwise registrable.” “A mark or component is unregistrable if, ‘when used on or in connection 1 Application Serial No. 87036675 was filed on May 13, 2016, based upon Applicant’s allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Serial No. 87036675 - 3 - with the goods of the applicant,’ it is ‘merely descriptive ... of them.’” 15 U.S.C. § 1052(e)(1). See In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005). The refusal is based on the Examining Attorney’s assertion that as used in Applicant’s mark, the phrase GLOBAL GROWERS is merely descriptive of Applicant’s frozen fruits and frozen vegetables. A term is deemed to be merely descriptive of goods or services, within the meaning of Section 2(e)(1) of the Trademark Act, if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services. DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). 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 Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). In other words, we evaluate whether someone who knows what the goods are will understand the mark to convey information about Serial No. 87036675 - 4 - them. DuoProSS, 103 USPQ2d at 1757; In re Tower Tech Inc., 64 USPQ2d 1314, 1316- 17 (TTAB 2002)). On the other hand, a mark is suggestive if, when the goods or services are encountered under the mark, a multi-stage reasoning process, or the utilization of imagination, thought or perception, is required in order to determine what attributes of the goods or services the mark indicates. As has often been stated, there is a thin line of demarcation between a suggestive mark and a merely descriptive one, with the determination of which category a mark falls into frequently being a difficult matter involving a good measure of subjective judgment. The distinction, furthermore, is often made on an intuitive basis rather than as a result of precisely logical analysis susceptible of articulation. Anheuser-Busch Inc. v. Holt, 92 USPQ2d 1101, 1105 (TTAB 2009); see also Plyboo America Inc. v. Smith & Fong Co., 51 USPQ2d 1633, 1640 (TTAB 1999) (citations omitted). A finding of mere descriptiveness requires that each word in a mark be descriptive, with the combination also having a descriptive significance. See DuoProSS, 103 USPQ2d at 1756; see also In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1516 (TTAB 2016). Serial No. 87036675 - 5 - The Examining Attorney argues that the term “‘GLOBAL’2 is descriptive because it merely indicates that the goods are offered on an international market,”3 and “‘GROWERS’4 is descriptive because it merely indicates that the goods come from a person or entity that grows the fruits and vegetables.”5 The Examining Attorney submitted the following excerpts from Applicant’s website to establish that the mark is descriptive: 6 2 The definition of “GLOBAL” from The American Heritage Dictionary is “of, relating to or involving the entire earth; worldwide: global war, global monetary policies.” Sept. 1, 2016 Office Action, The American Heritage Dictionary of the English Language (5th ed. 2016), www.ahddictionary.com, TSDR p. 4. All citations to the Trademark Status and Document Retrieval (TSDR) database are to the PDF version of the documents. 3 Examining Attorney’s Brief, 10 TTABVUE 5. 4 The definition of “GROWERS” from MacMillan Dictionary is “a person, company, or place that grows a type of plant or crop.” Sept. 1, 2016 Office Action, MacMillan Dictionary (2016) (American version), www.macmillandictionary.com, TSDR p. 6. 5 Examining Attorney’s Brief, 10 TTABVUE 5. 6 Sept. 1, 2016 Office Action, TSDR p. 10. Serial No. 87036675 - 6 - While the terms “global” and “growers” may individually have some descriptive significance, we must determine whether the composite mark is descriptive. “It is well-established that a term which describes the provider of goods or services is also merely descriptive of those goods and services.” In re Major League Umpires, 60 USPQ2d 1059, 1060 (TTAB 2001) (citing In re E.I. Kane, 221 USPQ 1203, 1205 (TTAB 1984)); see also Trademark Manual of Examining Procedure (TMEP) § 1209.03(q) (October 2017). To be merely descriptive, the composite term must immediately identify the source or provider. The connection between the mark and the goods or services must be immediately discernable. Illustrative examples of marks that are descriptive of the source or provider include: MAJOR LEAGUE UMPIRE for clothing, namely, shirts, tee-shirts, jackets, caps, trousers, socks, wind resistant jackets, wristbands, uniforms and shoes; and “face masks, chest protectors and shin guards for athletic use” designed by a Major League Umpire. In re Major League Umpires, 60 USPQ2d 1059, 1060 (TTAB 2001); PSYCHOLOGY PRESS for “non-fiction books in the field of psychology.” In re Taylor & Francis [Publishers] Inc., 55 USPQ2d 1213 (TTAB 2000); and THE PHONE COMPANY for “telephones.” In re The Phone Company, Inc., 218 USPQ 1027, 1028 (TTAB 1983). GLOBAL GROWERS is vague and does not immediately identify the source or provider because it is a sweeping, all-inclusive term that does not describe with any particularity the source of the goods. It is far too broad to suggest any identifiable group of farmers. As the Court of Customs and Patent Appeals, the predecessor to our primary reviewing court, explained, Serial No. 87036675 - 7 - We are of the opinion that the word “Globe” is not merely a geographical name or term in the sense in which the phrase is used in the statute. A geographical name or term to our minds signifies a nation, state, county, city, municipality, river, lake or the like. The reasons for denying a trade mark monopoly upon such names or terms is obvious but “Globe” has no such geographical significance; it identifies no particular geographical locations, nor is its proper use as a trade mark likely to interfere with or embarrass any public or private right. Champion Spark Plug Co. v. Globe-Union Mfg. Co., 88 F.2d 970, 33 USPQ 207, 209 (CCPA 1937). The same reasoning leads to the conclusion that the mark GLOBAL GROWERS is not a merely descriptive term because it cannot be identified with any specific geographic unit, location or group of farmers. Cf. World Carpets, Inc. v. Dick Littrell’s New World Carpets, 438 F. 2d 482, 168 USPQ 609 (5th Cir. 1971) (“World” is not geographically descriptive as applied to carpets); Ex parte Western Auto Supply Co., 58 USPQ 489 (CCPA 1943) (“Western” does not identify any particular geographical location and, therefore, is not merely geographical). Thus, a multi-stage reasoning process, or the utilization of imagination, thought or perception, is required to connect the term GLOBAL, meaning “worldwide”7 and GROWERS, a person or entity that grows fruits and vegetables8 with Applicant. Based thereon, we find the mark GLOBAL GROWERS to be suggestive rather than descriptive. Similarly, the other evidence introduced by the Examining Attorney is not persuasive. The following examples were submitted with the February 22, 2017 Denial of Applicant’s Request for Reconsideration: 7 See n.2 supra. 8 See n.4 supra. Serial No. 87036675 - 8 - • Sunrise Growers at http://www.sunrisegrowers.com/ growers/global-grower-network, stating: “Sunrise Growers has an extensive grower and processing network that allows us to freeze and ship fresh fruit worldwide. Because fresh fruit is perishable and highly vulnerable to weather events and transportation delays, we’ve developed relationships with partner processors and shippers to ensure access to freezing facilities within a few hours of all growing regions. We’ve also created regional crop redundancies within our network to maintain an uninterrupted supply of fresh fruit.” 6 TTABVUE 3. Sunrise Growers has an extensive growers and processing network for use in freezing and shipping fruit worldwide yet it does not use the term “global growers” in its website. The term is buried deep within its web address where it will neither be used nor observed by consumers. BerryWorld at http://berryworld.com/group/home/, stating: “BerryWorld has over 20 years’ experience in developing the soft fruit market, the BerryWorld Group works with a dedicated global grower base and as a presence in multiple retail sectors around the world. We are a trusted berry provider to leading retailers and food and catering specialists, bringing the best new soft fruit varieties to market.” 6 TTABVUE 4. • Vision Import Group at http://visionimportgroup.com /AboutUs.html), stating: “Vision Import Group LLC has established global grower partnerships to provide the highest quality products and service to our customers ... [and] [w]e have worked hard with our growers and distributers to create brands for our products that are the definition of quality. These brands allow customers at all levels in the industry to easily identify the best product. We offer year round availability of Limes, Lemons, Mangos, Pineapples, and Carrots.” Id. In all of the web information, there were but two uses of “Global Grower” to describe the source or producer of the products. There is simply insufficient evidence to show that GLOBAL GROWERS is merely descriptive. Serial No. 87036675 - 9 - Finally, we acknowledge that both the Examining Attorney and the Applicant submitted third-party registrations to establish either that “global” or “grower” is descriptive of fruits and vegetables and therefore disclaimed or that neither is descriptive and thus should not be disclaimed. The Examining Attorney addressed this issue in the brief, where she stated: The fact that third-party registrations exist for marks allegedly similar to Applicant’s mark is not conclusive on the issue of descriptiveness. In re Scholastic Testing Serv., Inc., 196 USPQ at 519; TMEP §1209.03(a). An applied-for mark that is merely descriptive does not become registrable simply because other seemingly similar marks appear on the register. In re Scholastic Testing Serv., Inc., 196 USPQ at 519; TMEP §1209.03(a). It is well settled that each case must be decided on its own facts and the Trademark Trial and Appeal Board is not bound by prior decisions involving different records. See In re Nett Designs, Inc., 236 F. 3d 1339, 1342, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); In re Datapipe, Inc., 111 USPQ2d 1330, 1336 (TTAB 2014); TMEP §1209.03(a). The question of whether a mark is merely descriptive is determined based on the evidence of record at the time each registration is sought. In re theDot Commc’ns Network LLC, 101 USPQ2d 1062, 1064 (TTAB 2011); TMEP §1209.03(a); see In re Nett Designs, Inc., 236 F.3d at 1342, 57 USPQ2d at 1566. Examining Attorney’s Brief, 10 TTABVUE 10. We agree and find that the existence of the third-party registrations of record does not affect the outcome of this appeal. Based on the evidence of record, we find that the mark GLOBAL GROWERS is suggestive, but not descriptive of Applicant’s frozen fruits and vegetables and that a disclaimer of GLOBAL GROWERS is not required. Serial No. 87036675 - 10 - Decision: The refusal to register Applicant’s mark GLOBAL GROWERS for failure to provide a disclaimer of GLOBAL GROWERS is reversed. The application will be published for opposition in due course.