Impact Products, Inc.

Trademark Trial and Appeal Board

Jun 11, 2002

No. 75452838 (T.T.A.B. Jun. 11, 2002)

Mailed : June 19, 2002
Paper No. 15
HRW

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Impact Products, Inc.
________

Serial No. 75/452,838
_______

Richard G. Martin of MacMillan, Sobanski & Todd, LLC
for Impact Products, Inc.

Amos T. Matthews, Trademark Examining Attorney, Law Office
108 (David Shallant, Managing Attorney).
_______

Before Wendel, Bucher and Bottorff, Administrative
Trademark Judges.

Opinion by Wendel, Administrative Trademark Judge:

Impact Products, Inc. has filed an application to
register STACK RACK for goods, as amended, identified as a
“liquid dispensing system consisting of plastic shelves,
dispensing containers, trigger-operated spray bottles, and
color coded labels for use in dispensing pre-measured
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser No. 75/452,838
2
liquid concentrates or ready to use chemicals, for use in
the janitorial maintenance of commercial buildings.”1
Registration has been finally refused on the ground
that the mark is merely descriptive under Section 2(e)(1)
of the Trademark Act. The refusal has been appealed and
both applicant and the Examining Attorney have filed
briefs. Applicant waived its right to an oral hearing.
The Examining Attorney maintains that STACK RACK, when
applied to the identified goods, describes a feature of the
goods, namely, that the goods include a framework of
shelves used as a rack allowing one to stack the dispensing
containers thereon. As support for his position, the
Examining Attorney relies upon the following dictionary
definitions of the terms “stack” and “rack”:
stack An orderly pile or heap. To arrange in
a stack: PILE. To pile in or on.

rack A framework, stand, or grating on or in which
articles are placed.2
In addition, the Examining Attorney has introduced excerpts
of articles retrieved from the Nexis database which show
use of the entire term “stack rack,” the following being
representative thereof:

1 Serial No. 75/452,838, filed March 19, 1998, claiming a first
use date and first use in commerce date of January 1994.
Ser No. 75/452,838
3
Display Technologies has been busy developing a slew
of new offerings for its POP clients, including a
customized TechStoc serpentine dispenser for Ocean
Spray and a customized TechStoc Stack Rack for Evian.
...
To achieve maximum display from limited floor space,
Display Technologies’ “stack rack” positions product
at an angle and the unit can be stacked four high. It
can be used vertically, as an upright floor-stand, or
horizontally as a floor seller. The unit’s
flexibility also allows it to be used in secondary
spaces such as ...
Food & Beverage Marketing (March 1, 1999);
The Pepsi Stack Rack speaks to beverage marketers’
desire to be here, there and everywhere in any store.
To that end, the four-shelf unit can “be very
versatile,” stacking either horizontally or
vertically.
Beverage World (December 1998);

... 2. Crate & Barrel’s chrome CD Stack Rack holds
20 discs. ...
In Style (January 1998);

There are many varieties of simple vertical stack
racks with individual shelves for each disc that can
be found at record stores in different designs,
colors, and capacities. One variation on this theme
is to have an individual spring-loaded slot, which
pops the desired disc forward with a light ...
...
Of course, the storage options are much wider yet.
There are designs such as the zig-zag stack racks that
hold rows of 10 to 12 jewel boxes on end on both sides
of a vertical column, “skyscraper” type vertical units
that hold 100 or more discs or caddies on shelves in a
straight column ...
CD-ROM Professional (July 1995);

Soft lines, which offers 23,000 square feet including
domestics, utilizes a wire stack rack for shirts and
shoes, bins for towels, and double semi-circular
waterfall racks for apparel end-caps.
Discount Store News (November 7, 1988);

2 Webster’s Ninth New Collegiate Dictionary.
Ser No. 75/452,838
4

Newspaper stack racks keep newspapers organized, and
log presses make them into logs for the fire. The
newspaper stack rack from the Hold Everything
catalogue stores more than a week’s worth of
newspapers, which can then be recycled, bundled or
made into logs.
The New York Times (February 13, 1986); and

The Stack Rack for Remtron lets you tuck more than
600 sheets of paper underneath your Epson MX-80
printer. Stack Rack features a bail guide that
prevents the paper from snagging and a paper stop that
halts the paper from sliding out the rear during
operation or transportation. The unit is constructed
of clear acrylic and is equipped with skip-resistant
padded feet.
Byte (November 1982).

Applicant contends that its goods comprise a system
for dispensing liquids and the mark STACK RACK does not
immediately convey information with respect to any
characteristic or feature of this liquid dispensing system.
Applicant notes that the composite term “stack rack” has no
dictionary meaning in itself and argues that many different
combinations of meanings are possible from the words “rack”
and “stack” alone. Applicant insists that its system does
not consist of racks per se or a “stack” of “racks” but
rather the most significant feature of its goods are the
plastic dispenser containers. Applicant argues that the
items in most of the articles relied upon by the Examining
Attorney appear to be modular in nature and configurable by
the purchaser, whereas applicant’s goods are not
Ser No. 75/452,838
5
“stackable” racks. Other articles are said to describe
shelf-like units on which goods may be stacked or piled.
None of the articles, applicant insists, describe a
dispensing system such as applicant’s.
A term is merely descriptive within the meaning of
Section 2(e)(1) if it immediately conveys information about
a characteristic or feature of the goods with which it is
being used. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009
(Fed. Cir 1987); In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215 (CCPA 1978). Whether or not a particular
term is merely descriptive is determined not in the
abstract, but rather in relation to the goods for which
registration is sought, the context in which the
designation is being used, and the significance the
designation is likely to have to the average purchaser as
he or she encounters the goods bearing the designation,
because of the manner in which it is used. See In re
Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). It is not
necessary that the term describe all the characteristics or
features of the goods in order to be merely descriptive; it
is sufficient if the term describes one significant
attribute thereof. See In re Pennzoil Products Co., 20
USPQ2d 1753 (TTAB 1991).
Ser No. 75/452,838
6
From the literature submitted by applicant to
demonstrate the nature of its goods, it is readily apparent
that applicant’s system includes as the basic framework for
the dispensing containers for the liquid concentrates or
chemicals, a series of three to five shelves arranged one
over another. Such a formation would clearly fall within
the definition of a “rack.” Although this rack framework
appears to be fixed and not modular or configurable by the
purchasers, nonetheless, it is a “rack.” The dispensing
containers are placed on each of the shelves arranged in
this rack formation. In other words, the dispensing
containers are arranged in a stack, one over another, on
this rack. Thus, the framework acts as a “stack rack” for
the liquid dispensing containers.
While we would agree with applicant that STACK RACK
does not convey information as to the nature of the
dispensing system as a whole, such as the type of liquids
dispensed or the purpose for the system, this is not the
appropriate test under Section 2(e)(1). As noted above, in
order to be merely descriptive of the goods, the term in
question need only describe one significant attribute or
feature of the goods. Here we consider the framework or
spatial arrangement for the various components of
applicant’s liquid dispensing system to be a significant
Ser No. 75/452,838
7
attribute or feature of the goods. The term STACK RACK
immediately conveys information as to this specific feature
of the goods.3
While applicant argues that there are many potential
meanings for the combination of the terms “stack” and
“rack” and thus the mark creates incongruity, we do not
find this to be the case. As pointed out, the issue of
mere descriptiveness is not determined in the abstract, but
rather in relation to the particular goods with which the
mark is being used. Thus, the question is whether
purchasers, being familiar with the particular dispensing
systems with which the term STACK RACK is being used, would
readily grasp the significance of the term as a descriptor
of the configuration of the system. We are convinced that
this relationship would be most apparent.
Finally, in considering the excerpts of the various
articles made of record by the Examining Attorney we are
aware that the term “stack rack” is used in more than one
manner. In some instances, the references are to racks
which are in themselves stackable, although, even then, the

3 Although the Examining Attorney has withdrawn the Section 2(d)
refusal based on the mark STACK RACK for “portable metal racks
for holding trays or drawers,” in that registration the
descriptiveness of the term STACK RACK for goods of this
framework or design was also recognized, the registration having
issued under the provisions of Section 2(f).

Ser No. 75/452,838
8
stack rack which is formed is in turn used to hold other
items, such as beverages. In other instances, however, the
term “stack rack” is used directly to describe a vertical
rack upon which other items are placed, albeit CDs,
newspapers, shirts, or computer printer paper in a pile or
“stack.” Such a usage of the term “stack rack” is clearly
equivalent to applicant’s usage of the term “stack rack.”
Here the term is used in connection with a system in which
dispensing containers are arranged in an upwards pile on a
series of shelves, thus the framework is that of a “stack
rack.” The connotation of the term “stack rack” remains
the same, regardless of the particular items which are
placed on the “stack rack.”
Accordingly, we find that STACK RACK immediately
conveys information to potential purchasers of a
significant feature of applicant’s dispensing system and
thus is merely descriptive thereof.
Decision: The refusal to register under Section
2(e)(1) is affirmed.