Nathan O Brown

Trademark Trial and Appeal Board

Jan 10, 2022

88696602 (T.T.A.B. Jan. 10, 2022)

This Opinion is Not a Precedent of the TTAB Mailed: January 10, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Nathan O. Brown _____ Serial No. 88696602 _____ Daniel Griffith IP of Griffith IP, for Nathan O. Brown. Inga Ervin, Trademark Examining Attorney, Law Office 111, Chris Doninger, Managing Attorney. _____ Before Greenbaum, Dunn and Hudis, Administrative Trademark Judges. Opinion by Hudis, Administrative Trademark Judge: Nathan O. Brown (“Applicant”) seeks registration on the Principal Register of the mark SPIT SPONGE (in standard characters) for, as amended, “accessories and supplies for musical instruments, namely, cleaning swabs for use on musical instruments, and cleaning cloths” in International Class 21.1 1 Application Serial No. 88696602 was filed on November 18, 2019, under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere since at least as early as August 1, 2019, and first use in commerce since at least as early as September 18, 2019. Serial No. 88696602 - 2 - The Trademark Examining Attorney refused registration under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the ground that Applicant’s proposed mark, as applied to the goods identified in the Application, is merely descriptive of them. Applicant thereupon amended the Application to seek registration on the Principal Register based on a claim of acquired distinctiveness pursuant Trademark Act Section 2(f), 15 U.S.C. § 1052(f) - while continuing to argue in the alternative that his proposed mark is inherently distinctive. The Examining Attorney rejected Applicant’s claim of acquired distinctiveness pursuant to Trademark Act Section 2(f), as being insufficiently supported by the evidence Applicant submitted, and continued the Section 2(e)(1) refusal. When the Examining Attorney made final the refusal to register under Section 2(e)(1) on the ground that the proposed mark is merely descriptive of the goods and has not acquired distinctiveness, Applicant appealed to this Board. Applicant and the Examining Attorney filed briefs.2 For the reasons discussed below, we affirm the refusal to register. 2 Page references herein to the application record refer to the online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents contained in the TSDR database are to the downloadable .pdf versions of the documents in the USPTO TSDR Case Viewer. References to the briefs on appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and after this designation are the page references, if applicable. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). In his brief, Applicant “reserved his option” to register the proposed mark on the Supplemental Register in the event the Board maintained the refusal to register it on the Principal Register. 4 TTABVUE 3, 6, 13. Eligibility for the Supplemental Register is an examination issue which cannot be raised for the first time on appeal. In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016) (“our prior precedents are clear that once the Board has rendered a final decision, a request to amend to the Supplemental Register is Serial No. 88696602 - 3 - I. Mere Descriptiveness - Applicable Law Absent an adequate showing of acquired distinctiveness, Trademark Act Section 2(e)(1) precludes registration of a mark on the Principal Register which, when used in connection with an applicant’s goods or services, is merely descriptive of them. A mark is “merely descriptive” within the meaning of Section 2(e)(1) “if it immediately conveys information concerning a feature, quality, or characteristic of the goods or services for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer A.G., 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). Conversely, a mark is suggestive if it “requires imagination, thought, and perception to arrive at the qualities or characteristics of the goods or services.” See Earnhardt v. Kerry Earnhardt, Inc., 864 F.3d 1374, 123 USPQ2d 1411, 1413 (Fed. Cir. 2017) (contrasting merely descriptive from suggestive marks) and In re Franklin Cty. Historical Soc’y, 104 USPQ2d 1085, 1087 (TTAB 2012) (same). “A mark need not recite each feature of the relevant goods or services in detail to be descriptive, it need only describe a single feature or attribute.” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (citation and internal quotation omitted). See also In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (“A mark may be merely descriptive even if it does not describe the ‘full scope and extent’ of the applicant’s not possible”). Applicant’s amendment to register the proposed mark on the Supplemental Register, contingent on the refusal being affirmed, is improper. Serial No. 88696602 - 4 - goods or services.”) (citing In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)). Whether a mark is merely descriptive is evaluated “in relation to the particular goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use.” In re Chamber of Commerce, 102 USPQ2d at 1219 (quoting In re Bayer, 82 USPQ2d at 1831) and “not in the abstract or on the basis of guesswork.” In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1513 (TTAB 2016) (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). Thus, we ask “not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods and services are will understand the mark to convey information about them.” DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (citation and internal quotation omitted). That a term has different meanings in different contexts is not controlling. In re Bright-Crest Ltd., 204 USPQ 591, 593 (TTAB 1979). Where a mark consists of multiple terms, the mere combination of descriptive terms does not necessarily create a non-descriptive word or phrase. In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1823 (TTAB 2012); In re Associated Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). A mark comprising a combination of merely descriptive components is registrable only if the combination of terms “function[s] as Serial No. 88696602 - 5 - an indication of more than a mere description of the ingredients [or functions] of the goods on which the mark is used[,]” In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382, 385 (CCPA 1968), or results in the “coinage of hitherto unused and somewhat incongruous word combinations whose import would not be grasped without some measure of imagination and ‘mental pause’.” In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983). However, if each component retains its merely descriptive significance in relation to the goods or services, the combination results in a composite that is itself merely descriptive. See, e.g., In re Oppedahl & Larson, 71 USPQ2d at 1374 (PATENTS.COM merely descriptive of computer software for managing a database of records that could include patents and for tracking the status of the records by means of the Internet); see also In re Phoseon Tech., 103 USPQ2d at 1823 (“When two or more merely descriptive terms are combined, ... [i]f each component retains its merely descriptive significance in relation to the goods or services, the combination results in a composite that is itself merely descriptive.”). Thus, our determination as to whether the proposed mark SPIT SPONGE is merely descriptive is based on an analysis of the proposed mark as a whole. DuoProSS Meditech, 103 USPQ2d at 1756 (“When determining whether a mark is merely descriptive, the Board must consider the commercial impression of a mark as a whole.”). On the other hand, we may consider the significance of each element separately in the course of evaluating the mark as a whole. Id. at 1756-57 (noting Serial No. 88696602 - 6 - that “[t]he Board to be sure, can ascertain the meaning and weight of each of the components that makes up the mark.”). Evidence that a term is merely descriptive to the relevant purchasing public “may be obtained from any competent source, such as dictionaries, newspapers, or surveys,” In re Bayer, 82 USPQ2d at 1831, as well as “labels, packages, or in advertising material directed to the goods.” In re Abcor, 200 USPQ at 218. It also may be obtained from an applicant’s own specimen of use and any explanatory text included therein. In re N.C. Lottery, 123 USPQ2d at 1710. Such evidence similarly may come from an applicant’s own usage other than that found on its labels, packaging or advertising materials. See, e.g., In re Chamber of Commerce, 102 USPQ2d at 1220 (content of applicant’s website, along with articles discussing the activities of chambers of commerce, constituted substantial evidence supporting the Board’s mere descriptiveness finding). Additionally, evidence that a term is descriptive may be found in its third-party usage in connection with products or services similar or related to those at issue. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1728 (Fed. Cir. 2012). II. Mere Descriptiveness - Arguments and Evidence “Whether a mark is merely descriptive or not is ‘determined from the viewpoint of the relevant purchasing public.’” In re Stereotaxis, Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1090 (Fed. Cir. 2005) (quoting In re Bed & Breakfast Registry, 791 F.2d 157, 160 (Fed. Cir. 1986)). Because the goods are identified as “accessories and supplies for musical instruments, namely, cleaning swabs for use on musical instruments, and Serial No. 88696602 - 7 - cleaning cloths,” we find the relevant purchasing public comprises those who purchase, use, or clean musical instruments. The Examining Attorney argues: Applicant’s mark is SPIT SPONGE for the amended identification, “accessories and supplies for musical instruments, namely, cleaning swabs for use on musical instruments, and cleaning cloth.” … As the … evidence shows, moisture, condensation or SPIT collects in a musical instrument, and may cause the growth of bacteria. … [A]s Applicant’s web page … states, Applicant’s swab and cloth acts as a SPONGE, and is used to “remove moisture” or SPIT from musical instruments. * * * [D]escriptiveness in this case would be determined by musicians, namely, those who know what the goods are, and what the goods are used for. … As the evidence … [shows], musicians, would know that “spit” is a term or art for anything that collects moisture. Therefore, no mental leap is required to know that SPIT SPONGE is descriptive of the nature of the goods, as well as the purpose of the goods.3 In support of these arguments, the Examining Attorney made of record the following dictionary definitions:  SPIT: (verb) to “eject saliva forcibly from one’s mouth, sometimes as a gesture of contempt or anger.”4  SPONGE: (noun) “a very light soft substance with lots of little holes in it, which can be either artificial or natural. It is used to clean things or as a soft layer.”5 We further take judicial notice of the following dictionary definition of SPIT when used as a noun:  SPIT: (noun) “saliva, especially when expectorated; spittle.”6 3 Examining Attorney’s Brief, 4 TTABVUE 4-6. 4 Office Action of February 26, 2020 at TSDR 11. 5 Id. at TSDR 10. 6 Definition of SPIT (as a noun) obtained from THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (https://www.ahdictionary.com/word/search.html?q=spit, last viewed January 7, 2022). The Board may take judicial notice of dictionary definitions from online Serial No. 88696602 - 8 - The Examining Attorney also submitted evidence that “SPIT” is a term of art in the musical instrument industry, used to describe the moisture or saliva that collects within a wind instrument while it is being played by a musician. See Office Action of April 1, 2021 at TSDR 4-16 (AMAZON.COM website, referring to replacement water key “spit valves” attached to musical wind instruments); id. at TSDR 17-19 (BRASSTACHE.COM website, posting an advertisement for “The Spit Catcher - For Brass/Wind Instruments”: “Spit? Condensation? Whatever you want to call what empties from the waterkey or spit-valve on your brass or wind instrument, IT'S GROSS! Now with The Spit Catcher, there will be no more puddles of spit after each playing session.”). (Emphasis added). The Examining Attorney further made of record web page captures from Applicant’s website (https://keyleaves.com), depicting the packaging for Applicant’s SPIT SPONGE product. The packaging, on the front, describes the product as a “dual texture pad cleaner; Top: ultra-absorbent pad dryer; Bottom: Micro-Texture Scrubber.”7 On another page, Applicant describes use of his product as follows: Spit happens! And spitty saxophone pads become a noisy, sticky mess Spit Sponge™ pad dryers remove moisture left on the pads and tone holes that a saxophone swab just can’t clean - extending pad life and keeping the sax cleaner. Spit Sponge™ is The ORIGINAL dual texture pad cleaner with an ultra-absorbent top to clean delicate pad leather, and a micro-textured bottom to scrub tone holes clean. … sources when the definitions themselves are derived from dictionaries that exist in printed form or have regular fixed editions. See In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013). 7 Office Action of February 26, 2020 at TSDR 5. Serial No. 88696602 - 9 - Spitty nasty be gone! Clean and saxy is here to stay with Spit Sponge™ pad dryers. (Emphasis added).8 Applicant did not make of record nor cite to any of his own evidence to persuade us that the proposed SPIT SPONGE mark is inherently distinctive. Rather, Applicant argues, based in part on the evidence the Examining Attorney made of record: [T]he applied-for mark “SPIT SPONGE” used in connection with “[a]ccessories and supplies for musical instruments, namely, cleaning swabs for use on musical instruments, and cleaning cloths” is not merely descriptive of the goods it is used in connection with and is instead suggestive. * * * Here, the mental leap between the words [SPIT SPONGE] and the product’s attributes is not “almost instantaneous” and requires some thought to understand because it may reasonably be interpreted as a reference to a different class and type of goods according to the Examining Attorney’s evidence. This is true because the consumer must know which type of ‘spit’ is being suggested as it is used in the mark, which ostensibly requires more than an instantaneous mental leap. Without knowing more, and pursuant to the Examining Attorney’s dictionary evidence …, the term “SPIT SPONGE” could just as easily be used in connection with baby or infant products and used to clean vomit or ‘spit up’. … It is therefore impossible for consumers to immediately understand what type of goods are offered in connection with the mark without deploying thought, perception, or imagination. * * * Applicant’s applied-for mark “SPIT SPONGE” as used in connection with musical instrument accessories requires thought and imagination to understand the suggestive nature of the mark based on the Examining Attorney’s evidence, and for this reason is not merely descriptive but is instead suggestive of the goods it is used ….9 8 Id. at TSDR 7. 9 Applicant’s Brief, 4 TTABVUE 6-8. Serial No. 88696602 - 10 - In support of his claim that the proposed SPIT SPONGE mark has acquired distinctiveness (which we discuss below), Applicant submitted the following product review which we find relevant to the descriptiveness of the proposed mark: Sticky [key] pads have always been a problem for pretty much all saxophonists. That is why … [Applicant] came up with the Spit Sponge. As you know, sticky saxophone [key] pads can become a noisy and sticky mess. With the Spit Sponge, you will be able to remove moisture left on the pads and tone holes that a saxophone swab just can’t reach, resulting in extended pad life and a cleaner horn all-around. … [T]he Spit Sponge feature[s] … a dual texture pad cleaner with an ultra-absorbent top to clean delicate pad leather, and a micro- textured bottom to scrub tone holes clean. * * * The Spit Sponge is a great alternative to … [other] options because the top layer of the spit sponge does absorb any spit or dampness after playing to keep the pad dry, and the bottom layers allow you to clean the tone-hole so no build up will occur. (Emphasis added).10 III. Mere Descriptiveness - Discussion and Analysis In view of the Examining Attorney’s evidence, and the product review Applicant submitted, we find unconvincing Applicant’s arguments that the proposed SPIT SPONGE mark is suggestive. Rather, each component of the proposed mark retains its merely descriptive significance in relation to Applicant’s goods when combined, such that the combination SPIT SPONGE results in a term that is itself merely descriptive. See In re Oppedahl & Larson, 71 USPQ2d at 1374. Applicant himself, on his website, uses SPIT in its descriptive sense to refer to moisture or saliva that collects within a musical wind instrument - in particular, in and around a saxophone’s key pads and tone holes - when played by the musician. 10 Office Action Response of July 10, 2020 at TSDR 38-39. Serial No. 88696602 - 11 - The product review quoted above uses the term SPIT in a similar manner. The ultra-absorbent top of Applicant’s product, as intended by Applicant and as understood by the product review, serves to clean sticky moisture (i.e., SPIT) away from a saxophone’s key pads and tone holes. In short, the absorbent top of Applicant’s product acts like a SPONGE. We thus find obvious the merely descriptive meaning of SPIT, SPONGE and SPIT SPONGE when used in connection with Applicant’s identified goods. As discussed above, descriptiveness is determined in relation to the goods, which in this case are used to clean musical instruments. Musical instruments include those played by applying the mouth to the instrument (that is, a wind instrument), leaving a residue of saliva, or spit. The descriptiveness question in this appeal would be determined by those who purchase, use, or clean musical instruments, including musicians, who know what the goods are and the purposes for which they are used. Contrary to Applicant’s argument, the relevant consumer does not need to know what “type of spit” is being described. As shown by the evidence, the relevant public, which includes musicians, would know that SPIT is a term of art for saliva-type moisture that collects within and at the exit points (i.e. tone holes, spit valves and pads) of a musical wind instrument. We therefore find no mental leap is required by the relevant purchasing public to know that SPIT SPONGE merely describes the nature of Applicant’s identified goods, as well as the purpose of those goods, within the meaning of Trademark Act Section 2(e)(1). Serial No. 88696602 - 12 - IV. Acquired Distinctiveness - Applicable Law Applicant argues in the alternative that, even if the proposed SPIT SPONGE mark is found to be merely descriptive, his “application should be allowed to proceed to publication for registration on the Principal Register because the mark has acquired distinctiveness, or secondary meaning, based on other evidence that the mark has become a well-known source indicator, and is associated as such, within the relevant consuming public pursuant to [Trademark Act Section 2(f),] 15 U.S.C. § 1052(f) ….”11 “To establish that a term has acquired distinctiveness, ‘an applicant must show that in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.’” In re Guaranteed Rate, Inc., 2020 USPQ2d 10869, *2 (TTAB 2020) (quoting In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1265 (Fed. Cir. 2015) (internal quotation omitted)). Applicant bears the burden of establishing that his proposed mark has acquired distinctiveness. Id. “Our ultimate Section 2(f) analysis of acquired distinctiveness and determination in this appeal is based on all of the evidence considered as a whole.” Id. The U.S. Court of Appeals for the Federal Circuit has instructed that: the considerations to be assessed in determining whether a mark has acquired secondary meaning can be described by the following six factors: (1) association of the [mark] with a particular source by actual purchasers (typically measured by customer surveys); (2) length, degree, and exclusivity of use; (3) amount and manner of advertising; (4) amount of sales and number of customers; (5) intentional copying; and (6) unsolicited media coverage of the product embodying the mark. 11 Applicant’s Brief, 4 TTABVUE 8. Serial No. 88696602 - 13 - Converse, Inc. v. ITC, 909 F.3d 1110, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018).12 “‘All six factors are to be weighed together in determining the existence of secondary meaning.’” In re Guaranteed Rate, 2020 USPQ2d 10869, at *3 (quoting Converse, 128 USPQ2d at 1546). A. Degree of Descriptiveness of the Proposed Mark In assessing whether the proposed SPIT SPONGE mark has acquired distinctiveness, we must first determine its degree of descriptiveness because “[t]he greater the degree of descriptiveness the term has, the heavier the burden to prove it has attained secondary meaning.” Royal Crown Cola Co. v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1048 (Fed. Cir. 2018) (quoting In re Boston Beer Co., 198 F.3d 1370, 53 USPQ2d 1056, 1058 (Fed. Cir. 1999) (internal quotation omitted)). See also In re Sausser Summers, PC, 2021 USPQ2d 618, at *8 (TTAB 2021); In re Guaranteed Rate, 2020 USPQ2d 10869 at *4. Thus we must make “an express finding regarding the degree of the mark’s descriptiveness on the scale ranging from generic to merely descriptive, and … [we] must explain how … [our] assessment of the evidentiary record reflects that finding.” Royal Crown Cola, 127 USPQ2d at 1048. The Examining Attorney argues that: as the previously … [submitted] evidence demonstrates, the applied-for mark is highly descriptive of Applicant’s goods …. An Applicant’s evidentiary burden of showing acquired distinctiveness increases with the level of descriptiveness of the mark sought to be registered; as in this case, a more descriptive term requires more evidence. ... As the 12 “While Converse concerned an appeal from a decision issued by the International Trade Commission, the Federal Circuit’s clarification of the factors in determining acquired distinctiveness is equally applicable to any Board proceeding that necessitates a showing of secondary meaning.” In re SnoWizard, Inc., 129 USPQ2d 1001, 1005 n.8 (TTAB 2018). Serial No. 88696602 - 14 - mark in this case is highly descriptive, Applicant’s evidence is not sufficient to show acquired distinctiveness.13 Applicant contends that: the mark at issue here is suggestive at best, and only slightly less than suggestive and not highly descriptive at worst, therefore lessening the burden on the Applicant to prove acquired distinctiveness. … Applicant’s … [evidence should be] … weigh[ed] in favor of a finding of secondary meaning.”14 We agree with the Examining Attorney. The Examining Attorney introduced evidence to prove that SPIT SPONGE is merely descriptive in the form of dictionary definitions of the component words, and third-party uses of SPIT. See In re Guaranteed Rate, 2020 USPQ2d 10869, at *3. As noted above, we also took judicial notice of a further definition of “spit” (as a noun). The Examining Attorney further pointed to the explanatory text on Applicant’s packaging that his product is used for cleaning in the manner of a SPONGE, In re N.C. Lottery, 123 USPQ2d at 1710, and the explanatory text on Applicant’s website that the substance to be cleaned is SPIT, In re Chamber of Commerce, 102 USPQ2d at 1220. Applicant provided additional evidence of descriptiveness in the form of a third-party review of his SPIT SPONGE product. Coach Servs., 101 USPQ2d at 1728 (Fed. Cir. 2012). On the basis of this evidence, we find that “on the scale ranging from generic to merely descriptive,” Royal Crown Cola, 127 USPQ2d at 1048, SPIT SPONGE is much closer to the generic end of the scale than to the merely descriptive end, making the 13 Examining Attorney’s Brief, 6 TTABVUE 7. 14 Applicant’s Brief, 4 TTABVUE 8-9, 12-13. Serial No. 88696602 - 15 - proposed mark highly descriptive of the “cleaning swabs for use on musical instruments, and cleaning cloths” identified in the application. Domino’s Pizza Inc. v. Little Caesar Enters. Inc., 7 USPQ2d 1359, 1365 (TTAB 1988) (Evidence of third- party use of the terms comprising the challenged marks, when considered together with the highly descriptive nature of the terms, is sufficient to lead to the conclusion that the terms have not become distinctive of applicant’s goods.). B. Sufficiency of Evidence of Acquired Distinctiveness Because SPIT SPONGE is highly descriptive of cleaning swabs for use on musical instruments, and cleaning cloths, “Applicant’s burden of establishing acquired distinctiveness under Section 2(f) is commensurately high.” In re Virtual Indep. Paralegals, LLC, 2019 USPQ2d 111512, at *11 (TTAB 2019); see also Performance Open Wheel Racing, Inc. v. U. S. Auto Club Inc., 2019 USPQ2d 208901, *7 (TTAB 2019) (“Highly descriptive terms are less likely to be perceived as trademarks, and therefore more substantial evidence of secondary meaning will ordinarily be required to establish their distinctiveness.”). To carry this burden, Applicant may offer three basic types of evidence: 1. A claim of ownership of one or more active prior registrations on the Principal Register of the same mark for goods or services that are sufficiently similar to those identified in the pending application. Trademark Rule 2.41(a)(1), 37 C.F.R. § 2.41(a)(1). 2. A verified statement that the mark has become distinctive of the applicant's goods or services by reason of the applicant’s substantially exclusive and continuous use of the mark in commerce for five years before the date on which the claim of distinctiveness is made. Trademark Rule 2.41(a)(2), 37 C.F.R. § 2.41(a)(2). 3. Other appropriate evidence of acquired distinctiveness. Trademark Rule 2.41(a)(3), 27 C.F.R. § 2.41(a)(3). Serial No. 88696602 - 16 - In re Guaranteed Rate, 2020 USPQ2d 10869, at *2. “[A]pplicant may submit one or any combination of these types of evidence. Depending on the nature of the mark and the facts in the record, the [E]xamining [A]ttorney may determine that a claim of ownership of a prior registration(s) or a claim of five years’ substantially exclusive and continuous use in commerce is insufficient to establish a prima facie case of acquired distinctiveness. In which case, [A]pplicant may then submit additional other evidence of acquired distinctiveness.” Id. Here, Applicant purports to offer only the third type of evidence15 under the factors discussed in Converse, 128 USPQ2d at 1546, to which we now turn. 1. Association of SPIT SPONGE with Applicant by Actual Purchasers This factor is “typically measured by customer surveys.” Converse, 128 USPQ2d at 1546. Applicant does not offer such a survey, but does offer declarations, with substantially identical wording, from 13 of his retail customers attesting to their understanding of SPIT SPONGE as being a designation indicating the source of accessories and supplies for musical instruments,16 generally from September 2019 to June 2020, in the following manner: 15 The Examining Attorney, in the Office Action of July 30, 2020 at TSDR 2, and in her brief on appeal, 6 TTABVUE 6, asserts that Applicant made an insufficient claim of acquired distinctiveness based upon five years’ of substantially exclusive use, because Applicant had not yet used the mark for five years. This is incorrect. Applicant specifically stated during prosecution that he was not relying on five years’ of substantially exclusive use to establish acquired distinctiveness. See Office Action Response of September 21, 2020 at TSDR 8. 16 Office Action Response of July 10, 2020 at TSDR 50-63. Applicant submitted a 14th declaration from Lee Hirschmann of The Band Shop. We give this declaration no probative value, because Mr. Hirschmann purports to have purchased Applicant’s SPIT SPONGE branded products during a period prior to which Applicant, according to his verified trademark application, was using the proposed mark. Serial No. 88696602 - 17 - 3. I have purchased SPIT SPONGE products [at] wholesale to offer for sale in connection with my role as [position] with musical instrument retailer [company name] during the period beginning on [start date] until [end date]. 4. At all times during this period I have referred to the products as SPIT SPONGE branded accessories and supplies for musical instruments and recognize the name to indicate the source of the specific goods. 5. It is my personal experience that the SPIT SPONGE brand and associated goods are well-recognized in the industry as a source of accessories and supplies for musical instruments. The Board in the past has accepted this type of evidence to demonstrate the necessary association between the goods and their source by purchasers, see In re MK Diamond Prods., 2020 USPQ2d 10882, *25 (TTAB 2020) (discussing declarations from applicant’s customers regarding their claimed recognition of applicant’s saw blade design); Kohler Co. v. Honda Gikken Kogyo K.K., 125 USPQ2d 1468, 1507-08 (TTAB 2017) (discussing statements from applicant’s distributors regarding their claimed recognition of applicant’s engine design), even if substantially identical in form and substance. In re Flex-O-Glass, Inc., 194 USPQ 203, 206 (TTAB 1977) (“[T]he fact that the affidavits may be similar in format and expression is of no particular significance herein since the affiants have sworn to the statements contained therein.”). In view of the highly descriptive nature of the term SPIT SPONGE, by themselves, these 13 declarations from retail customers attesting to their understanding of SPIT SPONGE as being a designation indicating the source of accessories and supplies for musical instruments do not suffice as support for a showing of acquired distinctiveness. In our view, the declarations are not very persuasive because the declarants are retailers who would be in a position to testify how the end user Serial No. 88696602 - 18 - encounters the term SPIT SPONGE as used on the goods in commerce, but the declarations are notably deficient in such details. None of the declarants are end-user customers, merely the retailers who sell to them. Moreover, the declarations merely state that 13 retailers personally recognize SPIT SPONGE as a general indicator of source. The declarations do not identify the cleaning products with which the proposed mark is associated, whether as identified in the subject Application or as promoted and sold by Applicant in commerce. In sum, the 13 declarations from Applicant’s retail customers do not tell us whether the ultimate purchasing public, such as musicians, identify the proposed SPIT SPONGE mark as an indicator of the source of Applicant’s cleaning products. 2. Length, Degree, and Exclusivity of Use Applicant submitted his own declaration attesting to the length, degree, and exclusivity of his use of the proposed SPIT SPONGE mark as follows:17 1) I am the owner and holder of all right, title, interest, and goodwill in the SPIT SPONGE trademark. 4) The SPIT SPONGE mark has been in exclusive and continuous use in commerce since September 18, 2019 in connection with musical instrument accessories and supplies. 10) On a quarterly basis beginning September 18, 2019, the number of music product retailers that carry the goods offered in connection with the SPIT SPONGE mark has steadily increased, as shown below. Many retailers have multiple locations, meaning SPIT SPONGE products are currently available in thousands of locations nationwide. Fourth quarter 2019: 22 retail brands First quarter 2020: 47 retail brands Second quarter 2020 until May 1, 2020: 57 retail brands (hundreds of 17 Office Action Response of July 10, 2020 at TSDR 10-15. Serial No. 88696602 - 19 - physical locations) We find that neither the length of time nor the degree of Applicant’s use of the proposed mark is significant. We have a hard time giving much probative weight to Applicant’s statement that “SPIT SPONGE products are currently available in thousands of locations,” given the inconsistency within the same paragraph of Applicant’s Declaration that his products are available in “hundreds of physical locations.” 3. Advertising Applicant testified that, from November 2019 to March 2020, he has invested time and money travelling to present the goods offered in connection with the proposed SPIT SPONGE mark at various trade shows and other functions throughout the United States to grow the brand within the musical instrument and accessory industry.18 Applicant’s expenditures devoted to these efforts total less than $10,000. We also credit toward Applicant’s advertising activities the content Applicant has published on his website. However, Applicant did not provide statistics regarding the number of unique visitors to his site. In total, these advertising activities and expenditures are not substantial, and further are not accompanied by any comparative context for us to make an evaluation of them. Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002) (“Raw numbers of product sales and advertising expenses … may be misleading. … Consequently, some context in which to place raw statistics is reasonable. [O]ne form of such context 18 Office Action Response of July 10, 2020 at TSDR 12-13. Serial No. 88696602 - 20 - would be the substantiality of the sales or advertising figures for comparable types of products.”); see also Omaha Steaks Int'l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1690 (Fed. Cir. 2018) (“[C]ontextual evidence … [may also include] the type of advertisements and promotions … [the trademark owner] uses to gain sales.”). 4. Amount of Sales and Number of Customers; Intentional Copying Applicant does not provide the amount of his sales of musical instrument cleaning swabs and cleaning cloths in connection with the proposed SPIT SPONGE mark or a clear statement as to the number of unique retail customers for his SPIT SPONGE goods. Applicant makes no claim of intentional copying of the proposed SPIT SPONGE mark by competitors or other third parties. 5. Unsolicited Media Coverage of the Product Embodying the Proposed Mark Applicant’s evidence on this Converse factor comprises product awards and media reviews.19 Applicant’s product received a Hot New Product designation from October 2019 through January 2020 and a sales platform Choice Badge in May 2020 from AMAZON. His goods received a Special Video Review in December 2019 and an Outstanding Product designation in January/February 2020 from THE SAXOPHONIST magazine. Applicant’s product also received favorable, unsolicited product reviews from MUSIC INC. magazine, JAZZED magazine, JAZZBARISAX.COM, BESTSAXOPHONEWEBSITEEVER.COM and BETTERSAX.COM during the period 19 Id. at TSDR 10-12, 16-49. Serial No. 88696602 - 21 - November 2019 through March 2020. The persuasiveness of this evidence is weakened by: (1) the short period of time over which these awards were given and product reviews were issued, and (2) the absence of evidence regarding the volume of readership of the magazines and the number of unique visitors to the websites. 6. Summary Considered as a whole, Applicant’s evidence on the Converse factors falls far short of showing that Applicant’s proposed highly descriptive SPIT SPONGE mark has acquired distinctiveness pursuant to Trademark Act Section 2(f) for musical instrument cleaning swabs and cleaning cloths. Decision The refusal to register the proposed SPIT SPONGE mark under Trademark Act Section 2(e)(1), on the ground that it is merely descriptive of the goods and has not acquired distinctiveness, is affirmed.