Greenleaf, Inc.

Trademark Trial and Appeal BoardNov 29, 1999

No. 74631589re (T.T.A.B. Nov. 29, 1999)

Paper No. 20 PTH THIS DISPOSITION IS NOT CITABLE AS PRECEDENT OF THE TTAB NOV. 29, 99 U.S. DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Greenleaf, Inc. ________ Serial No. 74/631,589 _______ Request for Reconsideration Richard M. Moose of Dority & Manning for Greenleaf, Inc. Tina L. Sapp, Trademark Examining Attorney, Law Office 105 (Thomas Howell, Managing Attorney). _______ Before Cissel, Hairston and Walters, Administrative Trademark Judges. Opinion by Hairston, Administrative Trademark Judge: Applicant, Greenleaf, Inc. has requested reconsideration of the Board’s August 27, 1999 decision affirming the Examining Attorney’s refusal to register. Applicant has raised a number of arguments in its 15- page reconsideration request. While we discussed here only some of these arguments, we have carefully considered all of the points made by applicant. Nevertheless, we maintain Ser No. 74/631,589 2 the view that our initial decision was correct, and therefore deny applicant’s request for reconsideration. Applicant maintains that the Board’s analysis in this case is flawed because the Board “improperly interpreted” the goods in connection with which the asserted mark, i.e., an envelope configuration, is used. According to applicant, because the goods as described in its application are simply air fresheners, it was improper for the Board to consider the specific type of air fresheners in connection with which the asserted mark is used. First, we did not “improperly interpret” applicant’s goods inasmuch as it is clear from the record that applicant uses the envelopes as containers for air fresheners of a specific type, namely, scented granular matter. Second, in determining whether a configuration sought to be registered is de jure functional, it is not improper to consider the precise nature of the goods in connection with which the configuration is used. Applicant also asserts that, in connection with applicant’s Section 2(f) showing, the Board should not have required evidence as to how ordinary consumers perceive the envelope design sought to be registered. Applicant argues that its evidence touching on how gift and specialty Ser No. 74/631,589 3 retailers perceive the design is sufficient to establish acquired distinctiveness. The relevant purchasing public for air fresheners is ordinary consumers. Gift and specialty retailers fall within the relevant purchasing public only as potential or actual customers. Thus, such retailers are a very small part of the relevant purchasing public. Evidence of how this small part of the relevant purchasing public perceives the design sought to be registered is of limited probative value. Cf. Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991) [Vendors, operators and manufacturers of automobile washing equipment are small part of relevant purchasing public of automobile washing services and evidence of generic use of the term TOUCHLESS by these persons for automobile washing services is of limited probative value]. Ser No. 74/631,589 4 Decision: The request for reconsideration is denied. R. F. Cissel P. T. Hairston C. E. Walters Administrative Trademark Judges Trademark Trial and Appeal Board Ser No. 74/631,589 5