North Beaches Art Walk Association, Inc.

Trademark Trial and Appeal Board

Aug 10, 2012

No. 85139899 (T.T.A.B. Aug. 10, 2012)

Mailed: August 10, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re North Beaches Art Walk Association, Inc.
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Serial No. 85139899
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James R. Menker of Holley & Menker, P.A. for North Beaches
Art Walk Association, Inc.

Tamara G. Frazier, Trademark Examining Attorney, Law Office
116 (Michael W. Baird, Managing Attorney).
_______

Before Grendel, Holtzman and Kuczma
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:

North Beaches Art Walk Association, Inc. (“applicant”)
filed an application to register on the Principal Register
the mark THE BEST LITTLE ART WALK IN TOWN, in standard
character form, pursuant to § 1(a) of the Trademark Act, 15
U.S.C. § 1051(a), for the following services in Class 41:
Art exhibitions; Organizing cultural and arts
events.
The examining attorney issued a final refusal to
register the mark pursuant to § 2(e)(1) of the Trademark
Act of 1946, 15 U.S.C. § 1052(e)(1), on the ground that the
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 85139899
2
mark is merely descriptive of the services.1 Applicant and
the examining attorney have filed briefs.
Descriptiveness
A term is deemed to be merely descriptive of goods or
services, within the meaning of Trademark Act § 2(e)(1), if
it forthwith conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use
of the goods or services. In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009, 1009 (Fed. Cir. 1987); and In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217 (CCPA
1978). A term need not immediately convey an idea of each
and every specific feature of the applicant's goods or
services in order to be considered merely descriptive; it
is enough that the term describes one significant
attribute, function or property of the goods or services.
In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB 1982); and In
re MBAssociates, 180 USPQ 338, 339 (TTAB 1973).
Whether a particular term is merely descriptive is
determined in relation to the goods or services for which
registration is sought and the context in which the term is
used, not in the abstract or on the basis of guesswork. In

1 In the 2/3/2011 Final Office Action, the examining attorney
reiterated that applicant could amend its application to the
Supplemental Register but that if it did so, it must disclaim
“art walk” because this wording appeared to be generic in light
of applicant’s services.
Serial No. 85139899
3
re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 218
(CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB
2002). In other words, the question is not whether someone
presented only with the mark could guess the products
listed in the description of goods. Rather, the question
is whether someone who knows what the products are will
understand the mark to convey information about them. In
re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002);
In re Patent & Trademark Services Inc., 49 USPQ2d 1537,
1539 (TTAB 1998); In re American Greetings Corp., 226 USPQ
365, 366 (TTAB 1985).
According to the examining attorney, applicant’s mark
is not entitled to registration because the mark is a
laudatory phrase which merely describes applicant’s
services.2 In support of the refusal, the examining
attorney submitted definitions and internet evidence to
show the meaning of the following terms:

Definitions
Best (definition):
adjective
1. Of the highest quality, excellence
or standing
2. Most advantageous, suitable or

2 Examining Attorney’s Appeal Brief p. 3 (unnumbered).
Serial No. 85139899
4
desirable
3. Largest; most
http://dictionary.referencce.com/browse/Best?3
Little (definition):
adjective
1. Small in size; not big; not large;
tiny
2. Short in duration; not extensive;
short; brief
3. Small in number
4. Small in amount . . .
http://dictionary.referencce.com/browse/little?4
Town (definition):
Noun
1. A thickly populated area, usually smaller than
a city and larger than a village, having fixed
boundaries and certain local powers of
government . . .
http://dictionary.referencce.com/browse/town?5

Art Walk (internet evidence, emphasis added):
First Friday Art Walk
New exhibits open in more than 20 area galleries from
5 to 9 p.m. the first Friday of each month. Free trolley
rides are offered up and down King Street and throughout
downtown to art walk locations . . .6

Mission Arts and Performance Project
The Mission Arts and Performance Project always
manages to strike a near-impossible balance between a sense
of community and a high quality of art. The long-running,
loosely organized bimonthly art walk encompasses literary

3 See attachment to 1/11/2011 Office Action.
4 See attachment to 1/11/2011 Office Action.
5 See attachment to 7/19/11 Request for Reconsideration Denied.
6 See attachment to 1/11/2011 Office Action.
Serial No. 85139899
5
readings, musical performances, afternoon kids’ projects,
and visual arts of many kinds . . . 7

Gig Harbor Art Walk
One of the best small town art walks in the Pacific
Northwest, stroll through the many galleries and chat with
the artists as they work. Held the first Saturday of the
month, enjoy an afternoon admiring the beauty of art . . .8

In its brief, applicant concedes that the term “art walk”
is descriptive of its identified services.9
Relying on the foregoing and other similar evidence,
the examining attorney contends that the mark THE BEST
LITTLE ART WALK IN TOWN is descriptive of the quality,
feature and characteristics of applicant’s art exhibitions.
That is, “applicant provides art exhibitions and events in
the form of ‘art walks’ superior in character and quality
to other similar events in town, which can be seen in a
relatively short period of time.”10
The examining attorney maintains that both the
individual components and the composite culmination of
applicant’s mark are descriptive.11 In reaching these

7 See attachment to 2/3/2011 Office Action.
8 See attachment to 2/3/2011 Office Action.
9 See Appeal Brief of Applicant p. 6.
10 Examining Attorney’s Appeal Brief p. 4 (unnumbered). We note
there is nothing in the record to support the conclusion that
applicant’s art walks can be seen in a relatively short period of
time.
11 Examining Attorney’s Appeal Brief pp. 4-5 (unnumbered).
Serial No. 85139899
6
conclusions however, the examining attorney improperly
dissects applicant’s mark determining that each element is
either descriptive or laudatory, and ignores the
significance of the third-party evidence. While applicant
concedes that ART WALK is descriptive of its identified
services,12 this concession does not render the mark merely
descriptive. Instead, applicant contends that its mark
when viewed as a whole is a unitary mark having an
“oxymoronic connotation;” hence, it is not descriptive.13
Where the combination of descriptive terms creates a
unitary mark with a unique, incongruous or otherwise
nondescriptive meaning in relation to the goods, the
combined mark is registrable. In other words, if the
combination of words in applicant’s mark results in a
separate and distinct meaning or commercial impression
apart from or in addition to their descriptive meaning,
then applicant’s mark is unitary and registrable. In re
Ginc UK Ltd., 90 USPQ2d 1472, 1476-77 (TTAB 2007). See In
re Colonial Stores, Inc., 394 F.2d 549, 157 USPQ 382, 385
(CCPA 1968) (finding mark SUGAR & SPICE not merely
descriptive of bakery goods even though it is descriptive,

12 Appeal Brief of Applicant p. 6.
13 Appeal Brief of Applicant p. 5.
Serial No. 85139899
7
it also evokes an association with nursery rhyme “sugar and
spice and everything nice”).
Applicant argues that the terms BEST and LITTLE have
divergent meanings imparting an oxymoronic connotation when
these words are juxtaposed, undercutting the significance
of each term separately. Specifically, any laudatory
significance of BEST is diminished by the notion that the
event is LITTLE.14 We agree with applicant that while the
word BEST has a laudatory connotation, the “self-
deprecating” word LITTLE provides a connotation that
directly contrasts with BEST. Similarly, any debatable
descriptive significance of the word LITTLE is offset by
the notion that the event is the BEST.
A unitary mark must create a single and distinct
commercial impression requiring the Board to determine “how
the average purchaser would encounter the mark under normal
marketing of such goods and also . . . what the reaction of
the average purchaser would be to this display of the
mark.” See Dena Corp. v. Belvedere Int'l, Inc., 950 F.2d
1555, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991) citing In re
Magic Muffler Service, Inc., 184 USPQ 125, 126 (TTAB 1974).
To determine how the average purchaser would encounter
the mark and their reaction to the mark, we examine
Serial No. 85139899
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applicant’s specimen of use, and the evidence submitted by
applicant and the examining attorney. Applicant’s specimen
shows use of the mark as a slogan promoting applicant’s
services on its website. The mark is shown in special font
and is set apart from the rest of the text. The manner in
which the mark is used on the specimen confirms that the
mark is presented as a unitary mark. The mark as displayed
on the specimen is shown below:

As explained by applicant, its mark parallels the
title of the well-known Broadway musical, book and motion
picture film “The Best Little Whorehouse in Texas.”15 Given
the extraordinarily long run, high acclaim and number of
prominent award nominations and awards received by the
musical and the film according to the Wikipedia articles
submitted by applicant, the title is has been exposed to a
large percentage of the purchasing public. Thus, the
parallel between applicant’s mark and the musical title
would be obvious to the average purchaser of applicant’s
services.
To show that its mark conjures up an association with

14 Appeal Brief of Applicant pp. 5-6.
15 See attachments to 6/27/2011 Request for Reconsideration.
Serial No. 85139899
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“The Best Little Whorehouse in Texas” title, applicant
submitted evidence of the following six registrations which
are based on a similar theme:
Registration No. Registered Mark
1597351 Best Little Core House in America
2061168 Best Little Doorhouse in Town
2857671

3093108 The best little neighborhood Italian restaurant
3549166 Best Little Storehouse in Texas
3632779 Best Little Hose House in Tennessee

While these third-party registrations are not evidence that
the marks are actually in use, they may be considered to
demonstrate the meaning of a term which comprises the mark,
or a portion thereof, to show that there is a well-known
and commonly understood meaning of that term and that the
mark has been chosen to convey that meaning. In re
Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
The vast majority of the internet evidence submitted
by the examining attorney similarly shows that third
parties have adopted and used names based on the “The Best
Little Whorehouse in Texas” theme to identify their
businesses:16
Best Little Roadhouse Best Little Doghouse in Town
The Best Little Cat House The Best Little Restaurant
The Best Little Cat House in PA The Best Little Hair House

16 See attachments to 7/19/2011 Request for Reconsideration
Denied.
Serial No. 85139899
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The Best Little Road Race The Best Little Dive Shop in Texas
The Best Little Cake Shop The Best Little Bead Bar
The Best “Little Dog” House in Texas The Best Little Klezmer Band in Texas
The Best Little Flower Shop The Best Little Cabin in Texas

In addition to those businesses listed above, a couple of
other businesses utilize the following “Best Little”
slogans as secondary identifiers of their businesses: “The
Best Little Ski Hill in Idaho” and “The Best Little Museum
on Highway 50, America’s Loneliest Road.” Although the
evidence submitted by the examining attorney also showed a
handful of non-trademark uses of “Best Little,” the number
of service mark uses and third party registrations for
“Best Little” slogans establishes that such names are used
as trade names and/or service marks and that the consuming
public would recognize applicant’s slogan as the name of a
particular art walk and not simply a laudatory slogan.
Despite the fact that marks containing the laudatory
word BEST have been found to be merely descriptive, see In
re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056
(Fed. Cir. 1999) (THE BEST BEER IN AMERICA held a common,
laudatory advertising phrase which is merely descriptive of
applicant’s beer and ale), applicant’s mark, as a whole, is
not merely descriptive of its services. Viewers of the
mark would clearly pick up on the parody with the Broadway
musical and motion picture “The Best Little Whorehouse in
Serial No. 85139899
11
Texas.” They would understand that the mark with the
“oxymoronic combination” of BEST and LITTLE is not merely a
laudatory mark, but refers to the art walk services
provided by applicant. Applicant’s mark is more akin to
the “Poly Pitcher” mark in Blisscraft of Hollywood v.
United Plastics Co., 294 F.2d 694, 131 USPQ 55, 60 (2d.
Cir. 1961), which was recognized to be more suggestive of
“Molly Pitcher of Revolutionary time” than descriptive of
polyethylene. Similar to the “Poly Pitcher” mark, the
incongruous expression BEST LITTLE in applicant’s mark is
suggestive of the well-known musical and motion picture
“The Best Little Whorehouse in Texas,” endowing applicant’s
mark with the necessary characteristics for registration.
In merely descriptive cases, we are required to
resolve any doubts in favor of the applicant for
registration. See In re Morton-Norwich Products, Inc., 209
USPQ 791, 791 (TTAB 1981) (The Board's practice is “to
resolve doubts in applicant's favor and publish the mark
for opposition”) and Remacle, 66 USPQ2d at 1224.
In view of the foregoing, we find that the mark THE
BEST LITTLE ART WALK IN TOWN is not merely descriptive of
applicant’s services. Because we find that applicant’s
mark is unitary and not merely descriptive, the mark must
not be broken up for purposes of a disclaimer and the
Serial No. 85139899
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requested disclaimer of ART WALK is not appropriate. See
In re Kraft, Inc., 218 USPQ 571, 573 (TTAB 1983)
(requirement for a disclaimer of “Light” apart from the
mark “Light N’ Lively” found inappropriate) and TMEP §§
1213.05(b) and (d).
Decision: The refusal to register is reversed.