Log Cabin Homes, Ltd.

Trademark Trial and Appeal Board

Aug 27, 1999

No. 74682845 (T.T.A.B. Aug. 27, 1999)

Hearing: Paper No. 18
September 23, 1998 EWH/MM
THIS DISPOSITION IS CITABLE
AS PRECEDENT OF THE TTAB AUG, 27, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Log Cabin Homes, Ltd.
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Serial No. 74/682,845
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David L. Just of Lucas & Just for Log Cabin Homes, Ltd.
Vivian Micznik First, Trademark Examining Attorney, Law
Office 104 (Sidney Moskowitz, Managing Attorney).
_______
Before Simms, Hanak and Hohein, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Log Cabin Homes, Ltd. (applicant) seeks to register
LOG CABIN HOMES in typed drawing form for “architectural
design of buildings, especially houses, for others, and
retail outlets featuring kits for constructing buildings,
especially houses.” The application was filed on June 1,
1995, with a claimed first use date of March 1987. In the
application, applicant disclaimed the exclusive right to
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use HOMES apart from the mark in its entirety.
Subsequently, applicant noted that it had obtained a
registration of the mark THE ORIGINAL LOG CABIN HOMES and
design for identical services. See Registration
No. 1,920,361 which issued September 19, 1995. Based upon
this earlier registration as well as its sales and
advertising figures, to be discussed at greater length
later, applicant alleged that its mark “LOG CABIN HOMES has
acquired distinctiveness.” (Applicant’s brief page 10).
The Examining Attorney refused registration on the
basis that applicant’s mark is generic for its services,
and if not generic, then applicant’s mark is so highly
descriptive that applicant’s showing of acquired
distinctiveness pursuant to Section 2(f) of the Lanham
Trademark Act is insufficient.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs and were present at a hearing held on
September 23, 1998.
We will first consider whether applicant’s mark is a
generic term for applicant’s services. In making this
determination, we have the benefit of a very recent
decision of our primary reviewing Court, namely, In re The
Ser No. 74/682,845
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American Fertility Society, F.3d , USPQ2d (Fed. Cir.
1999).
As applicant acknowledges, there are in the record “a
few hundred” articles wherein the term “log cabin home(s)”
is used in a generic manner for dwellings made of logs.
However, applicant characterizes these few hundred articles
as an “abuse [of] applicant’s trademark LOG CABIN HOMES.”
(Applicant’s brief page 5). We simply disagree. The
hundreds of articles referenced by the Examining Attorney
appear in national magazines as well as in newspapers
published in virtually every geographic area of the United
States. These articles uniformly depict “log cabin
home(s)” in all lower case letters, and there is no
suggestion whatsoever that when this term is used, it is
used to refer to applicant’s specific services. Indeed,
applicant makes no argument that these hundreds of
references to log cabin home(s) are references to
applicant’s services.
Thus, the evidentiary record here is in stark contrast
to that in American Fertility Society where the Examining
Attorney was unable to find even one example of the use by
others of the term “society for reproductive medicine.”
Moreover, applicant has totally failed to make of record
any evidence establishing that “log cabin homes” is a mark
Ser No. 74/682,845
4
indicating services emanating solely from applicant. For
example, applicant has not made of record any affidavits or
declarations from competitors, dealers or ultimate
consumers stating, in essence, that they view the term LOG
CABIN HOMES as a mark indicating services emanating solely
from applicant.
Applicant advances a second argument as to why its
purported mark is not generic. According to applicant,
“the term LOG CABIN HOMES has only an incongruous meaning
as applied to applicant’s services.” (Applicant’s brief
page 5). Applicant readily concedes that “the term ‘log
cabin’ alone is certainly well known to every adult and
schoolchild who took American history … [and that] even the
term ‘log homes’ is a commonly used expression for the new
style of homes that are built with logs.” (Applicant’s
brief page 7). However, applicant contends, at pages 7 and
8 of its brief, that its purported mark is incongruous in
the following manner:
If you have the combination “log cabin,” you have
a completely understood term. But “cabin” and
“home” are synonyms. So where the word “homes”
is added to the word “cabin,” it forms the
incongruous trademark LOG CABIN HOMES.
There are two responses to applicant’s argument.
First, the hundreds of stories from magazines and
newspapers all across the country using the generic term
Ser No. 74/682,845
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“log cabin home(s)” demonstrate that said term is certainly
not incongruous and instead has a well understood meaning.
Second, applicant has acknowledged that the term “log
cabin” is very well known and that in addition, it is
reminiscent of “the type of structure in which Abraham
Lincoln was brought up.” (Applicant’s brief page 5).
Indeed, a “cabin” is defined as “a small, one-story house
built simply or crudely, as of logs,” often “designed for a
brief stay, as for overnight.” Webster’s New World
Dictionary (2d ed. 1970). Thus, applicant is simply wrong
in stating that the words “cabin” and “home” (or “house”)
as synonyms. Most homes or houses are not crude, and they
certainly are not used for brief stays. While perhaps some
of the articles made of record by the Examining Attorney
use the term “log cabin home” in a manner somewhat
synonymous with the term “log cabin,” other articles use
the term “log cabin home” to refer to larger, more
permanent dwellings. For example, an article appearing in
the February 10, 1997 edition of The Herald (Rock Hill,
South Carolina) states that “the Dean’s expansive log cabin
home is intact.” An article from the September 22, 1996
edition of the Chattanooga Free Press refers to a “Cape-
style log cabin home.” Another article from the September
22, 1996 edition The News and Observer (Raleigh, North
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Carolina) talks about the Reverend Billy Graham inviting
reporters “last month to his log cabin home on the
mountain.” One doubts that a successful public figure such
as the Reverend Graham would have as his second home a
primitive, one room log cabin of the style of Abraham
Lincoln. Another story from the April 21, 1996 edition of
The Times-Picayune refers to a “two-story log cabin home on
twenty acres near Roundup, Montana.” Finally, a story
appearing in the February 15, 1996 edition of Professional
Builder bears the following heading: “This is luxury, not
Lincoln logs.” The story then goes on to describe a
builder who caters primarily to out-of-state clients “who
want a custom-built log cabin home.”
In short, we find nothing incongruous about the term
“log cabin home.” It has appeared in hundreds of articles,
as applicant itself acknowledges, and moreover, this term
refers not only to small log cabins, but in addition, it
has come to designate larger, more permanent homes
constructed of logs.
Finally, applicant advances a third argument as to why
its purported mark is not generic. Applicant notes that it
is seeking to register LOG CABIN HOMES for “services, not
goods.” (Applicant’s brief page 3). Applicant then goes
on to note that “there is absolutely no evidence that
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anyone has ever referred to one of applicant’s retail
outlets as a LOG CABIN HOMES store or anything even
similar.” (Applicant’s brief page 4). Applicant is simply
in error. Applicant’s own specimens of its service mark
use prominently feature at the very top the words LOG CABIN
HOMES.
Both in its brief and at the oral hearing applicant
conceded that the terms “log cabin” and “log homes” are
generic for dwellings made of logs. Following applicant’s
reasoning, then presumably applicant could also register
these two terms as service marks for “architectural design
of buildings, especially houses, for others, and retail
outlets featuring kits for constructing buildings,
especially houses.” In other words, if an Examining
Attorney failed to present evidence that the clearly
generic terms “log cabin” and “log home” had been used as
the names of retail outlets or stores, then an applicant
would be free to register these clearly generic terms for
retail outlets or stores featuring the design of and kits
for “log cabins” and “log homes.”
Our primary reviewing Court has previously rejected
the very argument advanced by applicant in its decision In
re Northland Aluminum Products, 777 F.2d 1556, 227 USPQ 961
(Fed. Cir. 1985). In Northland Aluminum, the Court found
Ser No. 74/682,845
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that the proposed mark BUNDT was generic for a “ring cake
mix” (emphasis added) despite the fact that the evidence
presented by the Examining Attorney simply showed that the
term “bundt” was generic for a type of cake. With one
possible exception, none of the evidence presented by the
Examining Attorney showed that the term “bundt” was generic
for a ring cake mix. In so doing, the Court had the
following to say: “We agree with the Board that it is not
of trademark significance to differentiate a cake made from
a cake mix from a cake made from a recipe.” 227 USPQ at
964.
Applicant attempts, at pages 4 and 5 of its brief, to
distinguish Northland Aluminum from the present case in the
following manner:
The Northland Aluminum case held that a name
which is descriptive of the goods (BUNDT for
cakes) is also descriptive for the cake mix from
which the goods are made. It said absolutely
nothing about the design of the cake mixes.
Under the Examining Attorney’s reasoning, a food
laboratory which developed recipes for food,
including cakes, could not register the trademark
BUNDT because one of its products it experiments
on is BUNDT cakes. But this is simply not the
holding of Northland Aluminum.
Three comments are in order. First, the Court in
Northland Aluminum did not merely find that the term
“bundt” was descriptive, but instead it found that the term
was “a common descriptive name for a type of ring cake, and
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is not registrable as a trademark for ‘ring cake mix.’”
227 USPQ at 964. In other words, the Court found that the
term “bundt” was not merely descriptive, but instead was
generic.1
Second, even if we accept applicant’s reasoning, what
applicant fails to note is that its description of services
includes not only the “architectural design of buildings,
especially houses,” but also “retail outlets featuring kits
for constructing buildings, especially houses.” A kit for
constructing a house bears an extremely similar
relationship to a house as does a ring cake mix to a ring
cake. Thus, applicant’s argument about the Court in
Northland Aluminum not discussing “the design of the cake
mixes” totally overlooks the fact that applicant’s chosen
description of services also includes “retail outlets
featuring kits for constructing buildings, especially
houses.” Therefore, even assuming for the sake of argument
that applicant’s proposed mark is not generic as applied to
the architectural design of buildings, it clearly is

1 As Professor McCarthy notes, “some semantic confusion arose
prior to 1989 because sections 14 and 15 of the Lanham Act used
the term ‘common descriptive name’ to denote the generic name of
a product or service. … This confusion came to an end when,
effective in 1989, the Trademark Law Revision Act replaced the
statutory phrase ‘common descriptive name’ with ‘generic name,’
thereby codifying prior judicial interpretation.” 2 J. McCarthy,
McCarthy on Trademarks and Unfair Competition Section 12:57 at
pages 12-108 to 12-109 (4th ed. 1999).
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generic as applied to retail outlets featuring kits for
constructing buildings. It is well settled that if a term
is generic for some of the goods or services listed in an
application, “registration is properly refused.” In re
Analog Devices Inc., 6 USPQ2d 1808, 1810 (TTAB 1988), aff’d
871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989).
Third, we simply do not accept applicant’s argument
that it can obtain exclusive service mark rights in a word
or term for the architectural design of a particular type
of building when that word or term is a generic name for
the particular type of building.
Before leaving the issue of genericness and turning to
the issue of acquired distinctiveness, we wish to make two
comments which are pertinent to both issues. First, we
note again that applicant has made of record no evidence
regarding how its competitors, dealers and ultimate
consumers perceive the term “log cabin homes.” Such
evidence could have been in the form of declarations or
affidavits. Thus, we have no evidence showing that
competitors, dealers and ultimate consumers either (1) have
perceived from the very beginning the term “log cabin
homes” as a service mark and not as a generic term, or (2)
have come to recognize the term “log cabin homes” as having
acquired a secondary meaning, that is to say, as having
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acquired distinctiveness indicating services emanating from
applicant.
Second, applicant makes the argument that its
“trademark [sic] LOG CABIN HOMES has acquired
distinctiveness because of [applicant’s] prior Registration
No. 1,920,361 for substantially the same mark [THE ORIGINAL
LOG CABIN HOMES and design] used on identical services.”
(Applicant’s brief page 9). While applicant has referenced
its prior registration solely with regard to the issue of
acquired distinctiveness, we believe that said registration
is pertinent to both the issue of acquired distinctiveness
and the issue of genericness.
Put quite simply, the words THE ORIGINAL in
applicant’s other mark serve to educate the public that
there are other designers and retailers of “log cabin
homes.” Thus, applicant’s use of the mark THE ORIGINAL LOG
CABIN HOMES and design actually detracts from applicant’s
claim that the term “log cabin homes” per se has acquired
distinctiveness indicating services emanating from
applicant.
Moreover, applicant’s use of the mark THE ORIGINAL LOG
CABIN HOMES and design would actually reinforce the belief
of competitors, dealers and ultimate consumers that the
term “log cabin homes” is indeed generic. In this regard,
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reference is made to the case of King-Seeley Thermos Co. v.
Aladdin Industries, 321 F.2d 577, 138 USPQ 349 (2d Cir.
1963). In King-Seeley, the Court found that plaintiff
King-Seeley’s mark THERMOS had become generic. However,
rather than permitting defendant Aladdin to make unlimited
use of the term “thermos” in connection with vacuum-
insulated bottles, the Court required, among other things,
that Aladdin “never use the words ‘original’ or ‘genuine’
in describing its product.” 138 USPQ at 352. The use of
the words “original” and “genuine” were reserved for King-
Seeley. The King-Seeley case is instructive in that it
demonstrates that the use of the word “original” in front
of a word or term indicates that that word or term is used
by others to designate a particular type of product or
service, and thus is generic.
We turn now to the issue of acquired distinctiveness.
Besides relying upon its prior registration of THE ORIGINAL
LOG CABIN HOMES and design in an effort to show that the
term “log cabin homes” had become distinctive of its
services, applicant also relied upon the March 1, 1996,
declaration of one of its officers, Thomas J. Vesce. Mr.
Vesce declared that “applicant has used the trademark LOG
CABIN HOMES continuously in interstate commerce since at
least as early as March 1987”; that “applicant uses the
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trademark in commerce for the custom architectural design
of buildings and in retail outlets featuring kits for
constructing buildings”; that “over the last five years,
sale of goods by the applicant as a result of applicant’s
services have averaged substantially greater than
$4,000,000 per year”; and that “over the same five year
period, advertising of the trademark LOG CABIN HOMES for
custom houses and retail sales of kits has exceeded
$1,000,000.” Mr. Vesce went on to declare that with one
notable exception, “sales under the trademark LOG CABIN
HOMES have been substantially exclusive by the applicant.”
At the outset, we note that Mr. Vesce’s declaration is
somewhat confusing in that he repeatedly uses the term
“trademark” and refers to the “sale of goods by the
applicant.” Thus, we are not certain that the sales
figures of 4 million dollars per year and total advertising
of expenditures of over 1 million dollars pertain to the
services for which applicant seeks to register the term
“log cabin homes.” However, even assuming for the sake of
argument that the sales and advertising figures all relate
to services for which applicant seeks registration, we find
that given the very highly descriptive nature of the term
“log cabin homes” (assuming said term is not generic, which
it is), that said figures are simply insufficient to
Ser No. 74/682,845
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demonstrate that the term “log cabin homes” has come to be
associated with services emanating from applicant.
Moreover, given the relatively high cost of
applicant’s services, sales of over 4 million dollars per
year translate into relatively few log cabin homes
originating from applicant’s architectural designs and
kits. Indeed, at the hearing applicant’s attorney stated
that applicant is involved in designing and selling kits
for only about 100 log cabin homes per year.
It must be remembered that as a “mark’s
descriptiveness increases,” the amount of proof required to
demonstrate acquired distinctiveness likewise increases.
Yamaha International v. Hoshino Gakki, 840 F.2d 1572, 6
USPQ2d 1001, 1008 (Fed. Cir. 1988). Again, we wish to
reiterate that applicant has made of record absolutely no
evidence showing how competitors, dealers and ultimately
consumers perceive the term “log cabin homes.”
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Decision: The refusal to register on the basis that
applicant’s alleged service mark is a generic term for
applicant’s services is affirmed. Moreover, in the event
that our determination of genericness is reversed, we find
that the term “log cabin homes” is so very highly
descriptive of applicant’s services such that applicant’s
showing of acquired distinctiveness is simply insufficient.
Accordingly, the refusal to register on this second basis
is also affirmed.
R. L. Simms
E. W. Hanak
G. D. Hohein
Administrative Trademark
Judges, Trademark Trial
and Appeal Board