Pacific Coast Feather Company

Trademark Trial and Appeal BoardJul 11, 2012

No. 77906902 (T.T.A.B. Jul. 11, 2012)

Mailed: July 11, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Pacific Coast Feather Company ________ Serial No. 77906902 _______ Clark A. Puntigam of Jensen & Puntigam, P.S. for Pacific Coast Feather Company Marc J. Leipzig, Trademark Examining Attorney, Law Office 115 (John Lincoski, Managing Attorney). _______ Before Grendel, Mermelstein and Kuczma Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Pacific Coast Feather Company (“applicant”) filed an intent-to-use application to register the mark STAYS FLUFFY LONGER pursuant to § 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), for the following goods, as amended: Pillows and featherbeds in Class 20 Comforters and bed blankets in Class 24. 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. 77906902 2 mark is merely descriptive of the goods in Classes 20 and 24. Applicant and the examining attorney have filed briefs. Descriptiveness A term is deemed to be merely descriptive of goods, 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 (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). The examining attorney submitted the following definition of the word “fluffy”: 1. Soft and light: consisting of something soft and light to the touch such as wool or feathers. 2. Downy or feathery: covered in something soft and light to the touch such as down or feathers. Serial No. 77906902 3 Whether a term is merely descriptive is determined not in the abstract, but in relation to the goods for which registration is sought, the context in which it is being used on or in connection with those goods, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use; that a term may have other meanings in different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is settled that “[t]he question is 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 or services are will understand the mark to convey information about them.” In re Tower Tech Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); see also In re Home Builders Association of Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990); and In re American Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). Given the definition of “fluffy,” it is apparent that “fluffy” is descriptive of feathers. Inasmuch as “featherbeds” by their very nature contain feathers, the term “fluffy” describes a feature of featherbeds and is descriptive of such goods. The term “fluffy” also describes the other products Serial No. 77906902 4 covered in applicant’s application. The examining attorney submitted internet evidence of home decorating articles referencing use of the term “fluffy” in connection with pillows, as well as use of “fluffy” in connection with the sale of pillows, comforters, blankets, and bedding products, including applicant’s products:1 “Then you should try decorating your favorite house corner with as many fluffy pillows as possible . . . Nevertheless, you’ll also need to be very practical about the use of fluffy pillows on your bed . . . (emphasis added) Fluffy pillows are actually a trendy way to decorate your house interior . . . Not only do these pillows serve a purpose in the sitting room but they are so useful in the bedroom too. . . (emphasis added) 1 See attachments to 2/16/2010 Office Action. Serial No. 77906902 5 Wild West Art Lynne London Online Store Soft Fluffy pillows of deerskin hand sewn together . . . (emphasis added) “Lavish your bed in lightweight luxury. This comforter is filled with strong and resilient 525 fill power Pyrenees down that lofts well and stays fluffy . . .” “Banish frightful weather from your home by swaddling your bed in the Belle Epoque Chateau Down Comforter – winter weight. This fluffy blanket uses down from the well-adapted goose to keep you toasty no matter the temperature . . .” “Filled with fluffy 575 fill power down, this comforter will keep you in your bed all year long . . .” Serial No. 77906902 6 (emphasis added) Serial No. 77906902 7 By implication, applicant admits that “fluffy” may be descriptive of feathers, but contends that it is not descriptive of its pillows, featherbeds, comforters and blankets.2 This argument is contrary to the definition of “fluffy” which is something soft, light and feathery. It is clear that the term “fluffy” is used by purveyors of such goods to describe a feature or characteristic of them, namely that they are soft and light. As shown above, the word “fluffy” is descriptive of applicant’s products. The remaining words in the mark, i.e., “STAYS” and “LONGER,” are used in a laudatory manner. Consumers encountering applicant’s “STAYS FLUFFY LONGER” mark will understand it to mean that applicant’s products stay fluffy longer compared to other similar goods in the market. Laudatory words or terms that describe the alleged merit of a product or attribute quality or excellence to goods, are considered merely descriptive and are unregistrable on the Principal Register without proof of acquired distinctiveness. See In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001) (THE ULTIMATE BIKE RACK held laudatory, descriptive phrase that touts the superiority of applicant’s bike racks); In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. 2 See Applicant’s Appeal Brief p. 1. Serial No. 77906902 8 Cir. 1999) (THE BEST BEER IN AMERICA held laudatory descriptive phrase for applicant’s beer and ale); Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1680 (TTAB 2007) (ULTIMATE POLO consists of the laudatory term “ultimate” and generic term “polo” describing best possible shirts). Applicant contends that its mark is not descriptive because it is a unitary mark that has an ambiguous meaning. According to applicant, its mark raises a host of additional questions with consumers such as “stays fluffier longer than what?” 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. See In re Ginc UK Ltd., 90 USPQ2d 1472, 1476-77 (TTAB 2007) and In re Colonial Stores, Inc., 394 F.2d 549, 157 USPQ 382, 385 (CCPA 1968). Contrary to applicant’s position however, its mark is not ambiguous -- the combination of words in applicant’s mark retain their descriptive and laudatory meanings. Viewers of the mark would clearly understand that applicant’s mark is saying applicant’s products are better, i.e., they stay fluffy longer than similar products made by others. Applicant itself admits that the phrase “stays fluffy longer” is ordinarily interpreted as a statement of Serial No. 77906902 9 comparison.3 Indeed, applicant uses the mark descriptively to promote the quality of its goods, advertising that the down (feathers) in its products “stay fluffy longer due to thorough washing” and “Pacific Coast’s exclusive Hyperclean® process ensures that our down is not coated with heavy additives or impurities. Our down starts out fluffy and stays fluffy longer.”4 See In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112 (Fed. Cir. 1987) (Board properly relied on applicant’s use of “a . . . wipe . . . for . . . screens” in specimen to find the term SCREENWIPE would be perceived as generic for the goods). Applicant downplays the significance of its statements because “there is nothing in the recited goods relating to the specific filling of the goods.”5 While it is true that the identification of goods does not require that applicant’s goods be made with down or any other “fluffy” filler, the identification does not exclude such fillers either. Because there are no limitations on the type of filler used in applicant’s goods, the goods must be considered to use any fillers commonly employed in the trade, which clearly includes down, feathers and other 3 See Applicant’s Appeal Brief p. 2. 4 See attachments to Office Action of December 12, 2010 from http:/webcache.googleusercontent.com . . . www.purenatural.com, www.shopmartusa.com. 5 Applicant’s Appeal Brief pp. 1-2. Serial No. 77906902 10 “fluffy” material. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing Kalart Co., Inc. v. The Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958)). There is nothing in the record that detracts from the plain and descriptive meaning of the mark. The evidence shows that “fluffy” is a term commonly used in the relevant trade, and there is no contention that “longer” has anything other than its ordinary meaning, which we think would be obvious to the average consumer. To be found descriptive, a mark need only describe one feature or characteristic of the identified goods. In this context, the descriptive meaning of the mark would be immediately clear to the average purchaser, i.e., that in use, applicant’s goods remain soft or light for a greater period of time than those of its competitors. In view of the foregoing, we find that the mark STAYS FLUFFY LONGER is merely descriptive of applicant’s goods. Decision: The refusal to register is affirmed.