LS&S Retail, Inc.

Trademark Trial and Appeal Board

Sep 30, 2010

No. 77524535 (T.T.A.B. Sep. 30, 2010)

Mailed:
September 30, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re LS&S Retail, Inc.
________

Serial No. 77524535, 77525441 and 775254501
_______

Farah P. Bhatti of Buchalter Nemer for LS&S Retail, Inc.

Marlene D. Bell, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______

Before Grendel, Zervas and Ritchie, Administrative
Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
LS&S, Retail, Inc. has appealed from the final refusal
of the trademark examining attorney to register the
following three applications, each filed on July 17, 2008:
1. Serial No. 775245352 for the mark LAGUNA SURF & SPORT
(in standard character form; SURF & SPORT disclaimed)
for “men’s and women’s clothing, namely, tee shirts,

1 On March 29, 2010, the Board granted the examining attorney’s
motion (filed March 15, 2010) to consolidate these three cases
for purposes of appeal. Accordingly, our decision addresses the
appeal in all three applications.
2 Serial No. 77524535 claims first use and first use in commerce
on April 1, 1983.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial Nos. 77524535, 77525441 and 77525450
2
tank tops, hats, tops, and headwear” in International
Class 25;

2. Serial No. 77525441 for the mark

(SURF AND SPORT disclaimed) for “men’s, women’s and
children’s clothing, namely, tee shirts, tank tops,
hats, tops, bottoms and headwear” in International
Class 25, and “online and retail store services
featuring clothing, headwear, swimwear and related
accessories, bags, backpacks, and sunglasses” in
International Class 35;3 and

3. Serial No. 77525450 for the mark

(SURF AND SPORT disclaimed) for “clothing, namely,
t-shirts, sweatshirts, tank tops and tops” in
International Class 25.4

3 Application Serial No. 77525441 claims first use on April 1,
1983 and first use in commerce on May 1, 2003 for the goods in
International Class 25; and first use and first use in commerce
on May 1, 2003 for the services in International Class 35. The
following description of the mark has been entered into the
record; “The mark consists of a stylized version of the word
‘LAGUNA’ placed above the words ‘SURF’ and ‘SPORT,’ with a
lightning bol[t] emblem set between the words ‘SURF’ and
‘SPORT.’”
4 Application Serial No. 77525450 claims first use anywhere and
first use in commerce on January 6, 2000. The following
description of the mark has been entered into the record; “The
mark consists of a stylized version of the word LAGUNA placed
over the words SURF AND SPORT, all set within an oval border,
with a decorative hibiscus flower to the left of the word
LAGUNA.”
Serial Nos. 77524535, 77525441 and 77525450
3
The examining attorney has refused registration
pursuant to Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that each of applicant’s marks so
resembles the following five previously registered marks
(owned by the same entity), that, as used on applicant’s
identified goods and services, applicant's marks are likely
to cause confusion or mistake or to deceive:
1. Registration No. 0606116 (three times renewed) for
the mark

for “swim suits, swim suit ensembles, and men’s
and boys’ sport shirts” in International Class 25;

2. Registration No. 1050106 (once renewed) for the
mark

for “swimwear and t-shirts” in International Class
25;

3. Registration No. 1214052 (once renewed) for the
mark

for “men’s boys’ and juvenile clothing-namely,
swim suits, swim suit ensembles, sport shirts,
warm-up suits and t-shirts” in International Class
25;

4. Registration No. 1278096 (once renewed) for the
mark
Serial Nos. 77524535, 77525441 and 77525450
4

for “clothing-namely, swim suits, swim suit
ensembles, sport shirts, warm-up clothing, shirts,
and shorts” in International Class 25; and

5. Registration No. 1541125 (once renewed) for the
mark LAGUNA (in standard character form) for
“men's, and boys', [juvenile boys'] clothing,
namely, swim suits, swim wear, sport shirts,
[warm-up suits,] t-shirts, [jackets, suits,
sportcoats,] underwear, [belts, hats,] shoes,
[ties, and pajamas;] women's, and girls',
[juvenile girls'] clothing, namely, [blouses,
skirts, jackets, jogging suits,] shorts, pants,
jeans, [socks, belts, swim suits, swim wear, hats,
underwear, sleepwear, and pajamas]” in
International Class 25.5

In addition, the examining attorney has refused
registration of application Serial No. 77525450 under
Trademark Act §§ 1, 2 and 45, 15 U.S.C. §§ 1051, 1052 and
1127, on the ground that the mark (containing the hibiscus)
is ornamental.
Applicant has appealed the final refusal of its
applications. Both applicant and the examining attorney
have filed briefs. As discussed below, the refusals to
register are affirmed.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative

5 The goods in brackets have been deleted from the registration.
Serial Nos. 77524535, 77525441 and 77525450
5
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, two key, although not exclusive, considerations
are the similarities between the marks and the similarities
between the goods and/or services. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24
(CCPA 1976). See also, In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
The Goods
The applications include goods that are identical to,
or overlap with, registrant's goods:
t-shirts and tops are included in each application and
t-shirts and/or sport shirts are included in each
registration;

bottoms are identified in Serial No. 77525441 and
shorts are identified in Registration No. 1541125; and

sweatshirts are identified in Serial No. 77525450 and
sweatshirts and warm-up suits or warm-up clothing are
identified in Registration Nos. 1214052 and 1278096.

Applicant’s tank tops, as casual shirts, are otherwise
related to registrant’s t-shirts and sport shirts. In
addition, the examining attorney has submitted webpages
Serial Nos. 77524535, 77525441 and 77525450
6
from the following websites showing the following goods for
sale under the same mark:
gap.com - offering bathing suits and tops

anthropologie.com – offering bathing suits and hats

jcrew.com - offering bathing suits and tank tops

ocsurfsport.com - offering swimsuits and t-shirts

The examining attorney has made Registration Nos. 2346793
and 2325728 of record, which are use-based third-party
registrations issued to the same owner. These
registrations serve to suggest that the goods listed
therein are of a kind that may emanate from a single
source. See In re Albert Trostel & Sons Co., 29 USPQ2d
1783 (TTAB 1993). Specifically, both registrations include
swimsuits, hats, t-shirts, tank tops, headwear, bottoms and
sweatshirts.
Although this internet and third-party registration
evidence is not substantial, in light of the nature of the
goods, we deem this evidence sufficient to demonstrate that
the goods that are not identical to or overlap with
registrant’s identifications, nonetheless are related to
registrant’s goods.
As for applicant's on-line and retail services in
application Serial No. 77525421, they involve goods that
are identical, encompassed within, or closely related to
Serial Nos. 77524535, 77525441 and 77525450
7
registrant's goods. Therefore, we find applicant’s
services to be related to the registrant's goods. See In
re U.S. Shoe Corp., 229 USPQ 707 (TTAB 1985) (mark for
retail women's clothing store services and clothing held
likely to be confused with mark for uniforms); and In re
United Service Distributors, Inc., 229 USPQ 237 (TTAB 1986)
(mark for distributorship services in the field of health
and beauty aids held likely to be confused with mark for
skin cream).
Applicant does not seriously contend that its goods
are dissimilar to registrant’s goods; it offers that its
goods are “somewhat” related to registrant’s goods.
In view of the foregoing, we resolve the du Pont
factor regarding the similarity of the goods against
applicant.
Trade Channels and Classes of Purchasers
Applicant’s and registrant's identifications of goods,
and applicant’s recitation of services, are broadly worded,
without any limitations as to channels of trade or classes
of purchasers. We presume that applicant's goods and
services, and registrant’s goods, are sold in all of the
normal channels of trade to all of the usual purchasers for
goods and services of the type identified. See Canadian
Imperial Bank v. Wells Fargo, 811 F.2d 1490, 1 USPQ2d 1813
Serial Nos. 77524535, 77525441 and 77525450
8
(Fed. Cir. 1987). In other words, we conclude that the
channels of trade and classes of purchasers of applicant’s
and registrant’s goods and services are the same, and we
reject applicant’s arguments regarding differences in trade
channels and classes of purchasers.
The Marks
We now turn to the du Pont factor regarding the
similarities of the marks when considered in their
entireties. We must consider whether the marks are similar
in sound, appearance, meaning, and commercial impression.
Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005). We do not consider whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar that
confusion as to the source of the goods offered under the
respective marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). In cases such this case, where the applicant's
goods are identical in part to the registrant's goods, the
degree of similarity between the marks which is required to
support a finding of likelihood of confusion is less than
Serial Nos. 77524535, 77525441 and 77525450
9
it would be if the goods were not identical. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
We are also guided by the well-established principle
that although the marks must be considered in their
entireties, there is nothing improper, under appropriate
circumstances, in giving more or less weight to a
particular portion of a mark. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
Applicant acknowledged that “dominant features of a mark
must be given greater weight when assessing the overall
commercial impression of a mark,” citing Giant Foods, Inc.,
v. Nation’s Food-Services, Inc. 710 F.2d 1565, 218 USPQ 390
(Fed. Cir. 1983).
Turning first to applicant’s marks, we agree with the
examining attorney that LAGUNA is the dominant component of
each of applicant’s marks. The first parts of marks are
often those most likely to be impressed on the minds of
prospective purchasers and remembered, see Presto Products,
Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895 (TTAB 1988),
and LAGUNA is the initial term that consumers will read or
vocalize when perceiving each mark. Additionally, the
terms SURF & SPORT are descriptive of a feature of
applicant's goods and services. Specifically, Applicant
Serial Nos. 77524535, 77525441 and 77525450
10
states that its goods “are geared towards surf
enthusiasts,” that its goods are sold in surf shops, and
that its mark is “familiar and well-known to surf and sport
consumers.” Brief at 10 – 11. (Applicant disclaimed SURF
& SPORT or SURF AND SPORT in its applications.) It is
completely appropriate to give less weight to a portion of
a mark that is merely descriptive of the relevant goods or
services in comparing marks in their entireties. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985) (“That a particular feature is descriptive ... with
respect to the relevant goods or services is one commonly
accepted rationale for giving less weight to a portion of
the mark.”).
Two of applicant's marks include design components.
The design components in applicant’s combination marks are
not particularly distinctive and would not create a greater
impression than the wording in the marks.6 Certainly, the
lightning bolt in application Serial No. 77525441 is minor

6 Applicant contends at p. 5 of its brief that where the design
element is “more conspicuous than the accompanying words, the
design element is considered dominant.” We do not find the
design elements to be “more conspicuous” than the wording in the
marks. We also disagree with applicant’s subsequent statement at
p. 5 of its brief that “LAGUNA is not the dominant portion of the
respective marks, rather the design, stylization and other
wording in the marks should be considered the dominant portion.”
Serial Nos. 77524535, 77525441 and 77525450
11
and would not be pronounced.7 The flower in application
Serial No. 77525450 simply gives the mark as a whole a
tropical feel, in line with the “surf” portion of the word
mark. Nevertheless, it does not overshadow LAGUNA as a
dominant element in the mark. A purchaser would not likely
articulate the flower portion of the mark when calling for
goods under the mark of application Serial No. 77525450.
When a mark comprises both a word and a design, the word is
normally accorded greater weight because it would be used
by purchasers to request the goods. In re Appetito
Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987).
As for registrant’s marks, one of registrant’s five
marks is a standard character mark. This standard
character mark is identical to the dominant component of
each of applicant’s marks. As for the four remaining
marks, their stylizations are not so distinctive that they
overshadow the included word LAGUNA. While the “eye”
components of the marks in Registration Nos. 1050106 and
1278069 are unusual, the word LAGUNA is the only word in
the mark and the eye components would not likely be spoken
when articulating the mark, as would the term LAGUNA. With
the term LAGUNA dominant in registrant’s marks, consumers

7 The disclaimer made by applicant is for “SURF AND SPORT”, not
“SURF” and “SPORT.”
Serial Nos. 77524535, 77525441 and 77525450
12
would likely view applicant’s marks as variants of
registrant's marks, particularly for the same or similar
articles of clothing.
Thus, both applicant’s and registrant’s marks contain
the dominant term LAGUNA. While the marks have obvious
differences in appearance and pronunciation due in part to
the inclusion of the descriptive terms SURF SPORT and SURF
& SPORT in applicant's marks, these differences are not as
significant as the similarities created by the identical,
shared term LAGUNA. Further, in view of that shared term,
we find that the meanings of the marks and their commercial
impressions are similar – the addition of the descriptive
terms SURF SPORT and SURF & SPORT does not alter the
overall meaning and commercial impression of the marks and
the differences in the meanings and commercial impressions
of the marks are not very significant. There is nothing in
the design elements of applicant's marks that provide its
marks with a commercial impression different from that of
registrant’s marks, including the tropical tone of
applicant's mark containing the hibiscus. When we consider
these marks in their entireties, we conclude that the
differences in appearance, pronunciation, meaning, and
commercial impression are eclipsed by the similarities of
Serial Nos. 77524535, 77525441 and 77525450
13
the marks. We therefore resolve the du Pont factor
regarding the similarity of the marks against applicant.
Strength of Registrant’s Marks
Applicant has submitted evidence to show that “the
common element, LAGUNA, … is weak because it is used by
several other entities in the marketplace ….” The evidence
applicant relies on is wholly unpersuasive. The listing of
Google search results for LAGUNA is largely irrelevant; it
shows hits for, e.g., Laguna Tools, Inc. for woodworking
machinery, Laguna Beach Hotels and Restaurants, Laguna Clay
Company for a clay working company with a kiln, potters
wheel and clay, Laguna guitars, “Laguna Seca” raceway and
Laguna Koi Ponds, identified as filtration design experts.
These search result listings do not indicate whether the
websites are active or, if so, whether the marks or names
used therein are in use, and, of course, have nothing to do
with applicant’s goods. As for the abandoned applications
and cancelled registrations submitted with applicant’s
request for reconsideration, applicant maintains that they
“show that other applications featuring the term LAGUNA
were approved for registration or registered in spite of
the Cited Registrations which shows that the Trademark
Office has historically only provided limited protection to
the Cited Registrations due to the common use of the LAGUNA
Serial Nos. 77524535, 77525441 and 77525450
14
mark.” Brief at 9. Expired registrations and pending and
abandoned applications have no probative value. Action
Temporary Services Inc. v. Labor Force Inc., 870 F.2d 1563,
10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“[A] cancelled
registration does not provide constructive notice of
anything”); and Interpayment Services Ltd. v. Docters &
Thiede, 66 USPQ2d 1463, 1467 n.6 (TTAB 2003) (applications
are only probative to show that the application has been
filed). Even if they did have probative value, they are
not persuasive because we must determine each case on its
own record and prior decisions by examining attorneys are
not binding on the Board. In re Nett Designs Inc., 236
F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).
Applicant indicated too that it has “researched the
presence of Registrant’s marks in commerce via the Internet
and included information regarding this research,”
concluding that “the Cited Registrations do not have a
strong presence in the marketplace … [and] that
Registrant’s clothing products are available only through
sales representatives located in New York City or Battle
Creek, Michigan areas.” Brief at 10. Even if respondent’s
marks do not have a strong presence in the marketplace, in
this ex parte proceeding, respondent is still entitled to
all of the presumptions under Section 7(b) of the Trademark
Serial Nos. 77524535, 77525441 and 77525450
15
Act accorded to subsisting registrations, including the
presumption of use throughout the Untied States. See
Amcor, Inc. v. Amcor Industries, Inc., 210 USPQ 70, 77
(TTAB 1981) (“[T]he presumptions afforded the registrations
under Section 7(b) include a presumption of use or the
right to use the registered marks throughout the United
States ….”).
Applicant also makes the point that its mark is a
strong one, has “acquired distinctiveness,” and “is
familiar and well-known to surf and sport consumers.”
Brief at 10. Even if this is the case, and consumers who
are very familiar with applicant’s mark encounter
registrant’s marks, the Trademark Act guards against the
misimpression that the junior user is the source of the
senior user's goods or services. In re Shell Oil Co., 992
F.2d 1204, 26 USPQ2d 1687 (Fed. Cir. 1993).
Thus, we accord registrant’s marks the normal scope of
protection that is accorded to a distinctive mark.
No Actual Confusion
Applicant argues that there has been no consumer
confusion for the past twenty-seven years, a period during
which applicant maintains that applicant and registrant
have coexisted in the apparel industry. A geographic
separation between registrant and applicant may account for
Serial Nos. 77524535, 77525441 and 77525450
16
a lack of actual confusion. Also, there is no evidence in
the record regarding the level of sales or advertising by
registrant and applicant. The absence of any instances of
actual confusion is a meaningful factor only where the
record indicates that, for a significant period of time, an
applicant's sales and advertising activities have been so
appreciable and continuous that, if confusion were likely
to happen, any actual incidents thereof would be expected
to have occurred and would have come to the attention of
one or both of these trademark owners. Similarly, we have
no information concerning the nature and extent of
registrant's use, and thus we cannot tell whether there has
been sufficient opportunity for confusion to occur, as we
have not heard from the registrant on this point. All of
these factors materially reduce the probative value of
applicant's argument regarding a lack of actual confusion,
and applicant’s contention that no instances of actual
confusion have been brought to applicant's attention is not
indicative of an absence of a likelihood of confusion. See
In re Majestic Distilling Co., supra. Applicant's argument
regarding actual confusion therefore is unpersuasive, and
this du Pont factor is neutral.
Serial Nos. 77524535, 77525441 and 77525450
17
Conclusion
We have found the du Pont factors regarding the
similarity of the marks, goods, classes of purchasers and
trade channels to favor registrant. We also accord
registrant’s marks the normal scope of protection for
registered marks presumed under the statute to be
distinctive. The lack of any reported instances of actual
confusion, argued by applicant, is neutral in our analysis.
We therefore conclude that when potential purchasers
encounter applicant’s and registrant’s respective marks for
the clothing items identified in their respective
identifications of goods, some items of which are
identical, and applicant’s online and retail store services
and registrant’s goods, they are likely to believe that the
sources of these goods are in some way related or
associated. We find the same to be true with respect to
registrant’s clothing items and applicant's internet and
retail services involving clothing items. As a result,
there is a likelihood of confusion.
Ornamental
As mentioned earlier in this decision, the examining
attorney has also refused registration under Trademark Act
§§ 1, 2 and 45 on the ground that the proposed mark in
application Serial No. 77525450, as used on the specimen of
Serial Nos. 77524535, 77525441 and 77525450
18
record, depicted below, is merely decorative or an
ornamental feature of the goods:

Specifically, the examining attorney maintains that the
proposed mark is prominently displayed on the front of a t-
shirt, is large, and it is common practice to place
decorative designs on the front of clothing so that the
proposed mark is not likely to be perceived as a source
indicator by consumers. The examining attorney observes
that applicant has “not proffered any evidence to support a
Section 2(f) claim of acquired distinctiveness or a claim
of secondary source.” Brief at unnumbered 19.
Applicant counters that “[a]s pertaining to the
instance [sic] goods, the appearance, location, and design
of the mark creates a commercial impression which the
public would clearly understand to be the source of the
goods”; and the “mark indicates to consumers the source of
the goods, namely, Applicant. Most consumers of
Applicant’s goods will recognize that Applicant owns and
Serial Nos. 77524535, 77525441 and 77525450
19
operates a retail store by the same name and therefore,
will identify Applicant’s mark with the source of the
goods.”
The mere fact that a term appears on a product does
not necessarily make it a trademark. In re Pro-Line Corp.,
28 USPQ2d 1141, 1142 (TTAB 1993). However, “[m]atter which
serves as part of the aesthetic ornamentation of goods,
such as T-shirts and hats, may nevertheless be registered
as a trademark for such goods if it also serves a source-
indicating function.” In re Dimitri's Inc., 9 USPQ2d 1666,
1667 (TTAB 1988). “Where ... an alleged mark serves as
part of the aesthetic ornamentation of the goods, the size,
location, dominance and significance of the alleged mark as
applied to the goods are all factors which figure
prominently in the determination of whether it also serves
as an indication of origin.” Pro-Line, 28 USPQ2d at 1142.
In this case, the specimen shows the proposed mark
prominently displayed in the upper center portion of the t-
shirt. The proposed mark is displayed on the front of the
shirt in a manner that immediately catches the eye. The
size, location, and dominance of applicant's proposed mark
on the t-shirt supports the conclusion that the proposed
mark would serve an ornamental rather than a source-
identifying function on the goods.
Serial Nos. 77524535, 77525441 and 77525450
20
In addition, the proposed mark is positioned in the
specimen above the wording “Laguna Beach, California.”
Consumers would view “Laguna” in the depiction of the
proposed mark as a reference to Laguna Beach, California.
SURF AND SPORT, as applicant has indicated in its brief,
would be perceived as referring to activities available in
Laguna Beach. The depiction of a hibiscus does not serve
as a source indicator; it merely offers a tropical beach
feel to the proposed mark, appropriate for a southern
California beach locale. Overall, the impression of
applicant’s proposed mark depicted in the specimen is not
as a source indicator.
Further, there is no visible TM symbol on applicant's
specimen. This suggests that potential customers would not
be conditioned to recognize applicant's proposed mark as a
trademark. In re Wakefern Food Corp., 222 USPQ 76, 78-79
(TTAB 1984)(“The fact that no symbol, such as ‘TM’ or ‘SM,’
is used to designate an alleged mark is also some evidence
that the phrase is not being used in a trademark or service
mark sense”). See also In re Astro-Gods Inc., 223 USPQ
621, 624 (TTAB 1984) (use of copyright notice with
ornamentation not enough to make an association between the
designation and applicant's name).
Serial Nos. 77524535, 77525441 and 77525450
21
The record is devoid of any evidence that consumers
recognize that applicant's proposed mark has a source-
identifying function or that it identifies a secondary
source in addition to being ornamental. Ornamentation of
“a T-shirt can be of a special nature which … inherently
tells the purchasing public the source of the T-shirt, not
the source of manufacture but the secondary source. Thus,
the name ‘New York University’ and an illustration of the
Hall of Fame, albeit it will serve as ornamentation on a T-
Shirt will also advise the purchaser that the university is
the secondary source of that shirt.” In re Paramount
Pictures Corp., 213 USPQ 1111, 1112 (TTAB 1982). In
Paramount Pictures, the Board found that the “primary
significance of the words ‘MORK & MINDY’ to any prospective
purchasers of a decal … is to indicate the television
series”; and noted that arbitrary terms such as KODAK and
DREFT have obvious source-indicating characteristics
because they “usually have no other perceived
significance.” Id. In this case, we cannot say that the
proposed mark has other perceived significance and the
record does not indicate that is an indicator of a
secondary source such as MORK & MINDY and NEW YORK
UNIVERSITY.
Serial Nos. 77524535, 77525441 and 77525450
22
In conclusion, it is our view that the proposed mark
in application Serial No. 77525450 is primarily an
ornamental feature of the goods and, therefore, it does not
function as a trademark for the goods.
DECISION: The refusals to register the marks in
application Serial Nos. 77524535, 77525441 and 77525450
under Section 2(d) of the Trademark Act are affirmed for
all classes, and the refusal to register the proposed mark
in application Serial No. 77525450 under Sections 1, 2 and
45 of the Trademark Act is also affirmed.