Golden Bison Consolidated, LLC

Trademark Trial and Appeal Board

Apr 12, 2021

87980485 (T.T.A.B. Apr. 12, 2021)

Oral Hearing: January 19, 2021 Mailed: April 12, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Golden Bison Consolidated, LLC
_____

Serial No. 87980485
_____

Mark VB Partridge and Jordan Arnot Leahey of Partridge Partners P.C.,
for Golden Bison Consolidated, LLC.
Giancarlo Castro, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
_____

Before Bergsman, Adlin, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Golden Bison Consolidated, LLC (“Applicant”) seeks registration on the
Supplemental Register of the designation CERTIFIED BISON (in standard
characters; BISON disclaimed) for “bison meat; prepackaged meals consisting
primarily of bison meat and vegetables, all of the aforementioned bison meat being
certified” in International Class 29.1

1 Application Serial No. 87980485, filed on January 8, 2018, initially based on a claim of a
bona fide intent to use in the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b). On October 18, 2018, Applicant filed an amendment to allege use,
claiming October 15, 2018 as both the date of first use and the date of first use in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 87980485
-2-
The Trademark Examining Attorney refused registration under Section 23(c) of
the Trademark Act, 15 U.S.C. § 1091(c), on the ground that Applicant’s proposed
mark, in its entirety, is the generic name of the identified goods and, as such, is
unregistrable.2
When the refusal was made final, Applicant appealed and requested
reconsideration. When the request for reconsideration was denied, the appeal
resumed. The appeal is fully briefed. An oral hearing was held on January 19, 2021.
For the reasons explained below, we affirm the refusal to register.3
I. Genericness - Applicable Law
A mark proposed for registration on the Supplemental Register must be capable
of distinguishing the applicant’s goods or services. 15 U.S.C. § 1091. “Generic terms
do not so qualify.” In re Emergency Alert Sols. Grp., LLC, 122 USPQ2d 1088, 1089
(TTAB 2017); see also Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965,
128 USPQ2d 1370, 1372 n.3 (Fed. Cir. 2018) (citing In re Am. Fertility Soc’y, 188 F.3d

2 The Examining Attorney also refused registration on the ground that the designation
CERTIFIED BISON is deceptively misdescriptive under Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1). In his April 26, 2019 and November 11, 2019 Office Actions, the
Examining Attorney stated that the deceptively misdescriptive refusal would be withdrawn
if Applicant amended its identification of goods to read as follows: “Bison meat; prepackaged
meals consisting primarily of bison meat and vegetables, all of the aforementioned bison meat
being certified.” In its May 11, 2020 Request for Reconsideration, Applicant submitted an
amendment complying with the requirement to amend the description of goods, which was
approved by the Examining Attorney. Although the Examining Attorney did not
affirmatively withdraw the deceptively misdescriptive refusal after accepting Applicant’s
amendment, the Examining Attorney did not address this refusal in his brief. Accordingly,
we view the deceptively misdescriptive refusal as withdrawn.
3 All TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the electronic file database for the involved application. All citations to the TSDR database
are to the downloadable .pdf version of the documents.
Serial No. 87980485
-3-
1341, 51 USPQ2d 1832, 1833 (Fed. Cir. 1999)); In re Dial-A-Mattress Operating Corp.,
240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2001) (generic terms “are by
definition incapable of indicating a particular source of the goods or services”).
The Office must demonstrate a term is generic by “clear evidence” of generic use.
See In re Hotels.com LP, 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009) (“The
Patent and Trademark Office (PTO) bears the burden of establishing that a proposed
mark is generic, … and must demonstrate generic status by clear evidence.”); In re
Merrill Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143
(Fed. Cir. 1987); see also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
§ 1209.(c)(i) (Oct. 2018) (“The examining attorney has the burden of proving that a
term is generic by clear evidence.”). “[R]egistration is properly refused if the word is
the generic name of any of the goods or services for which registration is sought.” In
re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1638 (Fed. Cir. 2016) (quoting
2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 12:57
(4th ed. 2016)).
A generic term “is the common descriptive name of a class of goods or services.”
Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827,
1830 (Fed. Cir. 2015) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986)). Specifically, a generic term names
the good or service. Id.; see also 2 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS
AND UNFAIR COMPETITION § 12:20 (5th ed. Dec. 2020 update). There is a two-part test
used to determine whether a designation is generic: (1) what is the genus (class or
Serial No. 87980485
-4-
category) of goods or services at issue?; and (2) does the relevant public understand
the designation primarily to refer to that genus of goods or services? Princeton
Vanguard, 114 USPQ2d at 1803 (citing Marvin Ginn, 228 USPQ at 530);
Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1462
(TTAB 2014). “The critical issue in genericness cases is whether members of the
relevant public primarily use or understand the term sought to be protected to refer
to the genus of goods or services in question.” Marvin Ginn, 228 USPQ at 530.
Any term that the relevant public uses or understands to refer to the genus of
goods, or a key aspect or subcategory of the genus, is generic. Royal Crown Co., Inc.
v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1046-47 (Fed. Cir. 2018). “[A]
term is generic if the relevant public understands the term to refer to part of the
claimed genus of goods or services, even if the public does not understand the term to
refer to the broad genus as a whole.” Cordua, 118 USPQ2d at 1638 (holding
CHURRASCOS, a word that is generic for a type of grilled meat, to be generic for
restaurant services because it referred to a key aspect of those services); see also In
re Nordic Naturals, Inc., 755 F.3d 1340, 111 USPQ2d 1495 (Fed. Cir. 2014)
(CHILDREN’S DHA generic for DHA supplements for children); In re Northland
Aluminum Prods., Inc., 777 F.2d 1556, 227 USPQ 961 (Fed. Cir. 1985) (BUNDT
generic for ring cake mixes, i.e., the subcategory “bundt cakes.”).
Moreover, we must assess whether “the public understands the mark, as a whole,
to refer to [the] genus” of an applicant’s goods or services. Princeton Vanguard,
114 USPQ2d at 1831 (citing Marvin Ginn, 228 USPQ at 530). In other words, even if
Serial No. 87980485
-5-
the constituent parts of a compound designation may be generic of the identified
goods or services, the designation, as a whole, will not be considered generic unless
there is evidence “that the separate words joined to form a compound have a meaning
identical to the meaning common usage would ascribe to those words as a compound.”
Id. (citing In re Gould, 834 F.2d 1017, 5 USPQ 1110, 1111-12 (Fed. Cir. 1987)).
“Evidence of the public’s understanding of the term may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listings in
dictionaries, trade journals, newspapers and other publications.” Royal Crown,
127 USPQ2d at 1046 (quoting In re Merrill Lynch, Pierce, Fenner, and Smith Inc.,
4 USPQ2d at 1143); see also Cordua, 118 USPQ2d at 1634; Princeton Vanguard,
114 USPQ2d at 1830; In re Reed Elsevier Props. Inc., 482 F.3d 1376, 82 USPQ2d 1378,
1380 (Fed. Cir. 2007) (finding third-party websites competent sources for determining
what the relevant public understands mark to mean).
A. What is the Genus of the Goods at Issue?

Our first task is to determine the proper genus. In defining the genus, we
commonly look to the identification of goods or services in the application. See Reed
Elsevier, 82 USPQ2d at 1380; Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d
1551, 1552 (Fed. Cir. 1991) (a proper genericness inquiry focuses on the identification
set forth in the application or certificate of registration); In re Serial Prodcast, LLC,
126 USPQ2d 1061, 1063 (TTAB 2018) (proper genus generally is “set forth by the
recitation of services in each subject application.”). Applicant has identified its goods
as “bison meat; prepackaged meals consisting primarily of bison meat and vegetables,
Serial No. 87980485
-6-
all of the aforementioned bison meat being certified.” The Examining contends that
Applicant’s identification of goods appropriately defines the genus of Applicant’s
goods. We agree with the Examining Attorney and find that the identification of goods
adequately defines the genus.4
B. Who are the Relevant Purchasers?
The second part of the Marvin Ginn test is whether the term sought to be
registered is understood by the relevant public primarily to refer to that genus of
goods or services. “The relevant public for a genericness determination is the
purchasing or consuming public for the identified goods.” Frito-Lay N. Am., Inc. v.
Princeton Vanguard LLC, 124 USPQ2d 1184, 1187 (TTAB 2017) (citing Magic Wand,
19 USPQ2d at 1552); Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341,
1351 (TTAB 2013). Because there are no restrictions or limitations to the channels of
trade or classes of consumers for Applicant’s identified goods, the relevant consumers
consist of: (1) the general U.S. public who purchase bison meat or prepackaged meals

4 Applicant argues, in its reply brief, that during the course of the prosecution, the Examining
Attorney had agreed that the genus at issue was “bison meat” or “prepackaged goods meals
consisting of bison meat and vegetables.” See Applicant’s Reply Brief, p. 3, 11 TTABVUE 4.
Applicant further maintains in his reply brief for the first time that the Examining Attorney
has improperly changed the genus of the goods by adding the language “all of the
aforementioned bison meat being certified” and, by doing so, has significantly changed the
rationale for the genericness refusal. Id. at p. 4, 11 TTABVUE 5. Applicant’s argument is
unavailing. Applicant submitted an amendment of its identification of goods to include the
language “all of the aforementioned bison meat being certified” when it filed its request for
reconsideration. See May 11, 2020 Request for Reconsideration, TSDR p. 8. Accordingly, it
was proper for the Examining Attorney to consider the genus of Applicant’s goods as “bison
meat” or “prepackaged goods meals consisting of bison meat and vegetables” prior to the
amendment. However, since Applicant amended its identification of goods to include the
language “all of the aforementioned bison meat being certified” just prior to appeal, the
Examining Attorney’s consideration of the genus of the goods, as amended, in his appeal brief
is appropriate.
Serial No. 87980485
-7-
consisting primarily of bison meat and vegetables for personal consumption that is
certified; and (2) U.S. institutional customers such as restaurants who serve bison
meat that is certified.
C. How does the Relevant Public Perceive the Wording CERTIFIED
BISON?

In support of the refusal, the Examining Attorney submitted evidence obtained
from the Internet to demonstrate that relevant consumers view the wording
CERTIFIED BISON as the generic name for Applicant’s identified goods. The
evidence submitted by the Examining Attorney is summarized below (emphasis
added by the Board):
 screenshots from the website www.ams.usda.gov stating that the
Agricultural Marketing Service of the United States Department of
Agriculture “provides certification of meat carcasses for a number
of marketing programs that make claims concerning breed and carcass
characteristics. These characteristics go beyond the requirements for
official USDA grades.” Although the website provides certified meat
programs for beef, veal, pork and lamb, the website does not identify any
certification programs for bison.5

 screenshots from the website www.fsis.usda.gov providing definitions of
various meat and poultry labeling terms including the term “certified”
which is defined as follows: “The term ‘certified’ implies that the
USDA’s Food Safety and Inspection Services and the Agriculture
Marketing Services have officially evaluated a meat product for class,
grade, or other quality characteristics (e.g. ‘Certified Angus Beef’).
When used under other circumstances, the term must be closely
associated with the name of the organization responsible for the
‘certification’ process, e.g., ‘XYZ Company’s Certified Beef’.”;6

5 April 28, 2018 Office Action, TSDR pp. 4-6.
6 Id., TSDR pp. 7-10 and April 26, 2019 Office Action, TSDR pp. 5-8.
Serial No. 87980485
-8-
 screenshot from the website of a third-party seller of angus beef, i.e.,
www.certifiedangusbeef.com, as displayed below:7

 screenshot from Grand Natural Meats’ website discussing, among other
things, nutritional information about bison meat and indicating that
“[t]he USDA has inspected and approved every cut of bison meat we ship
out… .”8

 screenshot from the Frequently Asked Questions section of The Shore
Bison’s (a third-party seller of bison meat) website discussing, among
other things, what bison eat, where their bison is raised, whether a

7 April 26, 2019 Office Action, TSDR pp. 9-10.
8 Id.; TSDR pp. 11-13.
Serial No. 87980485
-9-
person who follows a Paleo, Primal or Whole 30 plan can eat bison, and
stating that their bison is certified organic by the USDA;9

 screenshot from Ozark Valley Bison Fam, LLC’s website indicating that
the bison they sell is certified grass fed by an entity known as AGW.
The relevant portion of the screenshot is displayed below.10

 screenshot from the Encyclopedia Britannica website,
www.britannica.com, providing information about the characteristics of
the bison mammal;”11

 screenshots from the retailer Thrive Market’s website displaying for sale
Grass Fed Bison with Kabocha Swuash and Spinach Baby Food and
indicating that bison ingredient is “GAP certified bison.”;12

 screenshots from the Corrales Growers Market website showing that
one of the market vendors, i.e., Lamont’s Buffalo, sells “USDA certified
bison.”;13 and

9 Id., TSDR pp. 14-16.
10 Id., TSDR p. 23.
11 November 11, 2019 Final Office Action, TSDR pp. 5-12.
12 June 16, 2020 Denial of Request for Reconsideration, TSDR pp. 4-10.
13 Id., TSDR pp. 11-15.
Serial No. 87980485
-10-
 screenshots from the website www.globalanimalpartnership.com
discussing standards for raising bison based on the “G.A.P. animal
welfare certification rating.14

In addition to the foregoing third-party websites, the Examining Attorney also
submitted screenshots from the “Frequently Asked Questions” section of Applicant’s
website, www.certifiedbison.com, that discusses, among other things: (1) which
quality assurances are ensured by Applicant’s certified bison seal; (2) what ranching
and animal welfare standards are met under Applicant’s certified bison seal; and (3)
what food safety inspections, testing, and verification are required for Applicant’s
“Certified Bison.”15
The Examining Attorney concludes that the foregoing evidence establishes that
“certified bison” would be perceived as a generic term by relevant consumers of bison
meat who are seeking to purchase bison of a particular quality that has been certified
according to a particular standard.16
In challenging the refusal, Applicant maintains that since 2011 it has established
itself in the meat industry as the premier supplier of bison products and services by
developing superior ranching, animal husbandry, and meat processing standards and
protocols to craft its bison products.17 Applicant further contends that it has perfected

14 Id., TSDR p. 20-22.
15 Id., TSDR pp. 16-19.
16 Examining Attorney’s Brief, 10 TTABVUE 9.
17 Applicant’s May 11, 2020 Request for Reconsideration, Exh. 1, Declaration of Chad
Bullinger, Chief Operations Office at High Plains Bison, LLC, a subsidiary of Applicant
(“Bullinger Decl.”), ¶ 5; TSDR p. 15.
Serial No. 87980485
-11-
its ranch-raised bison using its own specifications and processes, and without the use
of hormones, antibiotics, or animal by-products, to deliver high quality products.18
Applicant asserts that it uses its CERTIFIED BISON trademark to identify the
source of its bison products based on the standards it has created.19
Applicant argues that the Examining Attorney failed to demonstrate by clear
evidence that its applied-for mark is generic.20 Specifically, Applicant contends that
none of the evidence submitted by the Examining Attorney demonstrates that the
compound wording “certified bison,” when viewed as a unitary phrase, is the generic
name for its identified goods.21
First, Applicant disputes that the evidence the Examining Attorney submitted
from the USDA website, including the screenshot from the Agricultural Marketing
Service of the USDA’s website, demonstrates that the designation CERTIFIED
BISON is generic for Applicant’s identified goods.22 Specifically, Applicant, citing to
the Federal Meat Inspection Act, 21 U.S.C. § 601 et seq., maintains that the USDA
is the competent Federal governmental inspecting and grading authority only over
those animal proteins specified in the Federal Meat Inspection Act which purportedly
does not include bison meat.23 Applicant further contends that the USDA neither

18 Id.; Bullinger Decl., ¶ 6; TSDR p. 15.
19 Id.; Bullinger Decl., ¶ 8; TSDR p. 15.
20 Applicant’s Appeal Brief, p. 9; 8 TTABVUE 10.
21 Id. at p. 10; 8 TTABVUE 11.
22 Id. at p. 14; 8 TTABUVE 15.
23 Id.
Serial No. 87980485
-12-
inspects nor grades meat of elk, wild boar, rabbit, venison, alligator or ostrich.24
Consequently, Applicant concludes that bison meat is not “certified” or otherwise
graded by the USDA. In other words, Applicant asserts that “USDA Certified Bison”
simply does not exist.25 However, for food safety purposes, Applicant acknowledges
that bison meat (and other exotic meats) may be, but is not required to be, processed
at a USDA inspected plant.26 If processed pursuant to USDA requirements bison
meat thereby garners the right to bear the USDA-Inspected seal.27 But bison meat is
never “certified” by the USDA,28 as was conceded by the Examining Attorney.29 Thus,
Applicant argues that the Examining Attorney’s reliance on USDA webpages related
to the grading of beef under the Federal Meat Inspection Act is simply inapplicable
to bison and, therefore, irrelevant.30
Applicant also argues that some of the other third-party Internet evidence
submitted by the Examining Attorney similarly does not demonstrate that the
designation CERTIFIED BISON is generic for its identified goods. With regard to
this evidence, Applicant states the following:31

24 Id. We note that § 601(j) of the Federal Meat Inspection Act defines “meat food product” as
“… the carcass of any cattle, sheep, swine, or goats … .” 21 U.S.C. § 601(j).
25 Id.
26 Id.
27 Id.
28 Id.
29 Examining Attorney Brief, p. 7; 10 TTABVUE 8 (“The Examining Attorney concedes that
there is no USDA (United States Department of Agriculture) grading or certification for bison
meat… .”)
30 Applicant’s Appeal Brief, p. 14, 8 TTABVUE 15.
31 Id. at pp. 15-16; 8 TTABVUE 17-18.
Serial No. 87980485
-13-
 “Thrivemarket.com: This website refers to ‘GAP certified bison’. This
is a reference to GAP certification, a phrase descriptive of certain
meat products, meaning humanely raised according to the Global
Animal Partnership. It does not show meaning of the compound term
‘certified bison.’”

 “Corralesgrowermarket.com/vendors: This cite contains one
reference to ‘USDA certified bison’. This is an isolated third-party
statement. … As noted, the USDA does not certify bison.”

 “Globalanimalpartnership.org: This website refers to humane
growing practices. It relates to ‘GAP Certification,’ which is claimed
as a trademark. It does not show that the relevant public uses and
understands ‘certified bison’ to be the generic term for bison meat.”

With regard to its own website of record, i.e., www.certifiedbison.com, Applicant
asserts that it uses “certified” as a descriptive term for bison and, therefore,
consumers who encounter the designation CERTIFIED BISON would perceive it as
proper technical trademark use, not as a generic term.32
Applicant also submitted the dictionary definition of the term “certified” which is
defined as “genuine, authentic.”33 In light of this definition, Applicant contends that
relevant “consumers would know that the meaning of ‘certified’ includes ‘genuine’ or
‘authentic’” and, therefore, ordinary consumers of bison meat would view the
designation CERTIFIED BISON as descriptive of Applicant’s goods, not generic.34
Additionally, Applicant relies on the U.S. Supreme Court decision USPTO v.
Booking.com B.V., 140 S. Ct. 2298, 2020 USPQ2d 10729 (2020) where the Court found

32 Applicant’s Reply Brief, pp. 5-6, 11 TTABVUE 6-7.
33 Applicant’s October 16, 2019 Response to Office Action, Exh. B, TSDR pp. 17-21.
34 Id.; TSDR p. 10. During oral hearing, Applicant claimed that it submitted evidence
demonstrating that there is no dictionary definition for the designation “certified bison,” as
a unitary phrase. There is no such evidence of record.
Serial No. 87980485
-14-
that relevant consumers would not perceive the designation “booking.com,” when
viewed in its entirety, as the generic name for various online hotel reservation
services for others. Applicant specifically relies on the following language from the
Court’s decision:
“… whether “Booking.com” is generic turns on whether that term, taken
as a whole, signifies to consumers the class of online hotel reservation
services. Thus, if “Booking.com” were generic, we might expect
consumer to understand Travelocity – another such service – to be a
“Booking.com.” We might similarly expect that a consumer, searching
for a trusted source of online hotel-reservation services, could ask a
frequent traveler to name her favorite “Booking.com” provider.

Consumers do not in fact perceive the term “Booking.com” that way. . .
Because “Booking.com” is not a generic name to consumers, it is not
generic.

2020 USPQ2d 10729, at * 5.

Similarly, Applicant contends that the wording “CERTIFIED BISON,” taken as a
whole, is not generic for bison meat.35 Applicant maintains that, “[i]f it were generic,
we might expect consumers to understand any outlet offering bison meat or
prepackaged meals to be offering a ‘certified Bison.’”36 Applicant argues, however,
that there is no evidence of record to support a finding that “CERTIFIED BISON” as
a whole is used or understood by relevant to consumers to signify a class of bison meat
or prepackaged meals and that the designation CERTIFIED BISON is not in fact
used by consumers in that manner.37

35 Applicant’s Appeal Brief, p. 10; 8 TTABVUE 11.
36 Id.
37 Id.
Serial No. 87980485
-15-
Finally, Applicant argues the USPTO has previously registered marks that have
a similar structure as Applicant’s applied-for CERTIFIED BISON mark for similar
goods and, therefore, Applicant’s mark should also be permitted to register.38 In
support of its argument, Applicant submitted copies of the following relevant third-
party registrations:39
Reg. No. Mark Relevant
Goods/Services
2692398
Principal Register
Section 2(f)
CERTIFIED HEREFORD BEEF
(BEEF disclaimed)
“beef,” in Class 29.
2394495
Principal Register
Section 2(f)
CERTIFIED ANGUS BEEF “marketing services,
namely, promoting the
sale of beef products for
meat packagers,
distributors, wholesalers
and retailers through
the distribution of

38 Id. at p. 21; 8 TTABVUE 22.
39 Applicant’s May 17, 2020 Request for Reconsideration, TSDR pp. 17-37. Applicant also
submitted several third-party registrations for marks that do not consist of the term
CERTIFIED in addition to the name of a meat or food product. As such, these third-party
registrations have little, if any, probative value in our analysis. Accordingly, we have given
these registrations no further consideration. Further, Applicant submitted a copy of Reg. No.
4267386 for the mark SENDICK’S BLACK ANGUS BEEF and design (BLACK ANGUS
BEEF disclaimed) for “Black Angus beef; meat primarily prepared with or substantially made
from Black Angus beef.” This registration has been canceled. A canceled registration has
limited, if any, probative value and, in any event, is not evidence of use of a mark or that the
public is familiar with its use. Kemi Organics, LLC v. Gupta, 126 USPQ2d 1601, 1606 (TTAB
2018) (a cancelled registration is not evidence of use of the mark at any time); In re Pedersen,
109 USPQ2d 1185, 1197 (TTAB 2013) (citing Anderson, Clayton & Co. v. Krier, 478 F.2d 1246,
1248, 178 USPQ 46, 47 (CCPA 1973) (statutory benefits of registration disappear when the
registration is cancelled)). Thus, we give no further consideration to this particular third-
party registration.
Finally, Applicant submitted a copy of a registration it owns, i.e., Reg. No. 3175323, for the
mark HIGH PLAINS BISON (in standard characters; BISON disclaimed) issued on the
Principal Register for “bison meat; prepackaged meals consisting primarily of bison meat and
vegetables, including potatoes, with cheese and/or sauce,” in Class 29.
Serial No. 87980485
-16-
Reg. No. Mark Relevant
Goods/Services
promotional materials
and advertising such as
point of purchase
displays, banners,
labeling materials and
advertisement slicks,” in
Class 35.
4303602
Principal Register
HERO CERTIFIED BURGERS
(CERTIFIED BURGERS
disclaimed)
“Fast-food restaurants;
Restaurant services;
Take-out restaurant
services,” in Class 43.
2431937
Principal Register
KING’S CERTIFIED SEAFOOD
(CERTIFIED SEAFOOD
disclaimed)
“Restaurant services,” in
Class 42.40
5396595
Principal Register

(CERTIFIED and MEATBALL
COMPANY disclaimed)
“Restaurant services,” in
Class 43.

III Analysis
Because the wording “bison meat” is included in Applicant’s identification of
goods, we find the designation “BISON” is generic for Applicant’s goods and has been
appropriately disclaimed by Applicant. See TMEP § 1213.03(b) (“If a mark is
comprised in part of matter that, as applied to the goods or services, is generic or does

40 When this registration issued, “restaurant services” were classified in International Class
42 and the registration certificate reflects this class. “Restaurant services,” however, are
currently classified in International Class 43.
Serial No. 87980485
-17-
not function as a mark, the matter must be disclaimed to permit registration on the
Principal Register (including registration under §2(f) of the Act) or on the
Supplemental Register.) (emphasis added). The issue before us then is to
determine whether the Internet materials submitted by the Examining Attorney, as
well as the dictionary definition of the term “certified” submitted by Applicant,41
constitute “clear evidence” demonstrating that the addition of the term CERTIFIED
to the generic wording BISON results in a generic designation in relation to the
identified goods. We find that it does.
As previously noted, the Federal Circuit has held that “a term can be generic for
a genus of goods or services if the relevant public . . . understands the term to refer
to a key aspect of that genus.” Royal Crown Co. v. The Coca-Cola Co., 127 USPQ2d at
1046 (quoting In re Cordua Rests. Inc., 118 USPQ2d at 1637). The Federal Circuit
has also held that “a term is generic if the relevant public understands the term to
refer to part of the claimed genus of goods or services, even if the public does not
understand the term to refer to the broad genus as a whole.” In re Cordua Rests. Inc.,
118 USPQ2d at 1638.
We acknowledge that the evidence of record shows that the USDA does not certify
bison meat and the Examining Attorney concedes as much. Moreover, while none of
the evidence submitted by the Examining Attorney refers to bison meat as “certified

41 The Examining Attorney may rely upon evidence submitted by Applicant to support his
genericness refusal. Cf. Trademark Rule 2.120(k)(7); 37 C.F.R. § 2.120(k)(7); see also Nazon
v. Ghiorse, 119 USPQ2d 1178, 1181 n.6 (TTAB 2016) (“Once evidence is properly of record, it
may be relied on by any party for any purpose.”).
Serial No. 87980485
-18-
bison” alone, as a unitary term, the evidence does include three websites showing use
of the wording “certified bison” in conjunction with other wording, i.e., “GAP Certified
Bison” and “USDA Certified Bison.”
Notwithstanding, when the evidence is viewed in its entirety, it is clear that
relevant consumers of meat products have been exposed to the concept that meat
products may be certified, whether they are certified as organic, grass-fed, raised in
a particular manner, or genuine. Moreover, Applicant’s identification of goods, as well
as its own website, specifically states that its bison meat products are certified. The
record also includes the dictionary definition of the term “certified,” which is defined
as “genuine, authentic,” and which is included in Applicant’s identification of goods
and thus the applicable genus of goods. As such, consumers will perceive the
designation CERTIFIED BISON as a subcategory or subgenus of bison meat. In other
words, relevant consumers perceive the wording CERTIFIED BISON as the
subgenus and key aspect of bison meat that meets certain criteria. We cannot ignore
what may be plainly obvious -- a term may be generic if, by its very definition, it will
be primarily understood as a reference to a genus or subgenus of any of the identified
goods. Royal Crown Co., Inc., 127 USPQ2d at 1046 (“a term is generic if the relevant
public understands the term to refer to part of the claimed genus of goods or services,
even if the public does not understand the term to refer to the broad genus as a
whole.”).
Additionally, the Board has held in other contexts that the addition of the term
“certified” to other generic matter will render a mark incapable of functioning as a
Serial No. 87980485
-19-
source indicator, when the applied-for mark is considered as a whole. More
specifically, when the term “certified” is used in connection with certification services,
the term has been found to be generic for such services. See, e.g., In re Software
Publishers Ass’n, 69 USPQ2d 2009 (TTAB 2003) (CERTIFIED SOFTWARE
MANAGER found generic for an applied-for certification mark for “software asset and
licensing management”); In re Mortg. Bankers Ass’n of Am., 226 USPQ 954, 956
(TTAB 1985) (“[A]pplicant’s services comprise an examination and testing procedure
for mortgage banker[s], the successful completion of which ‘certifies' that is, that he
or she has achaieved (sic) a certain level of quality of fitness in the mortgage banking
field. In our view, the designation sought to be registered [CERTIFIED MORTGAGE
BANKER] is so highly descriptive of applicant's services, which essentially are the
providing of a certification program for mortgage bankers, as to be incapable of
identifying the source of those services”).
While Applicant is not seeking to register a certification mark per se, the evidence
of record nonetheless shows that Applicant provides its customers with bison meat
products certified to meet certain standards ascribed by Applicant. Contrary to
Applicant’s argument, the fact that the certification of Applicant’s bison meat
products are not based on U.S. governmental or industry-wide standards but instead
are based on its own criteria or criteria of a purported affiliated entity, i.e., the Bison
Counsel, is of no consequence. See, e.g., In re Mortgage Bankers Ass’n of America, 226
USPQ at 956 (the designation CERTIFIED MORTGAGE BANKER for educational
services, namely, providing qualifying examinations, testing and grading in the field
Serial No. 87980485
-20-
of real estate finance found generic notwithstanding the fact that applicant
purportedly was the only organization at the time providing qualifying examinations,
testing and grading in the mortgage banking field).
With regard to Applicant’s relevant third-party registration evidence, we find that
the third-party registrations which issued on the Principal Register that include the
term CERTIFIED and the name of a meat or food product and where such terms are
disclaimed are of little probative value. This holds true since we are without the
benefit of the file histories for any of these third-party registrations. Therefore, we
cannot draw any conclusions as to why the disclaimers were made or whether the
disclaimed wording, in its entirety, is merely descriptive of the identified goods or the
generic name of the goods or a combination of both.
The two third-party registrations for the marks CERTIFIED HERESFORD BEEF
for “beef” and CERTIFIED ANGUS BEEF for, among other things, “marketing
services, namely, promoting the sale of beef products for meat packagers” appear to
lend support to Applicant’s argument that marks similar to the structure of
Applicant’s mark have previously been allowed to register. The fact that the USPTO
has previously registered the marks CERTIFIED HERESFORD BEEF and
CERTIFIED ANGUS BEEF on different records and the latter registered mark for
marketing services and not a meat product does not entitle Applicant to register
CERTIFIED BISON for its identified bison meat products.
“While we recognize that ‘consistency is highly desirable,’ consistency in
examination is not itself a substantive rule of trademark law, and a desire for
Serial No. 87980485
-21-
consistency with the decisions of prior examining attorneys must yield to proper
determinations under the Trademark Act and rules.” In re Ala. Tourism Dep’t,
2020 USPQ2d 10485, at *11 (TTAB 2020) (quoting In re Am. Furniture Warehouse
Co., 126 USPQ2d 1400, 1407 (TTAB 2018) (internal quotations omitted)). We must
assess each mark on its own facts and record. 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.”).
Finally, Applicant’s reliance on the Supreme Court’s decision in Booking.com is
unpersuasive. In that decision, the Court was considering whether a composite
designation comprised of a purportedly generic term and a top level domain name is
capable of functioning as a service mark for online hotel reservation services. By
contrast, the issue presented here is whether the combination of the term “certified,”
which is defined as “authentic” or “genuine,” with the generic term “bison” renders
the composite designation generic for Applicant’s identified goods. Booking.com is
distinguishable because it is technically impossible for there to be more than one
“booking.com,” whereas here, the record shows several uses of “certified bison” and
reveals that certain meat products are commonly identified as “certified.”
Quite simply, the record supports a finding that the primary significance of the
designation CERTIFIED BISON in the minds of the relevant consuming public is to
identify a good rather than to identify a single source of the good. More specifically,
we conclude that, taken as a whole, the wording CERTIFIED BISON identifies a
Serial No. 87980485
-22-
subgenus and key aspect of bison meat and, therefore, is the generic name of
Applicant’s goods. In re Cordua Rests. Inc., 118 USPQ2d at 1638 (explaining that “a
term is generic if the relevant public understands the term to refer to part of the
claimed genus of goods or services, even if the public does not understand the term to
refer to the broad genus as a whole.”); see also In re Central Sprinkler Co., 49 USPQ2d
1194, 1199 (TTAB 1998) (ATTIC “directly names the most important or central aspect
or purpose of applicant’s goods, that the sprinklers are used in attics, this term is
generic and should be freely available for use by competitors.”).
Decision: The refusal to register Applicant’s proposed mark CERTIFIED BISON
on the Supplemental Register on the ground that the designation, in its entirety, is
the generic name for the identified goods under Sections 23(c) of the Trademark Act
is affirmed.