Ralph S. Gray

Trademark Trial and Appeal Board

Jul 29, 2002

No. 75725201re (T.T.A.B. Jul. 29, 2002)

Paper No. 5
TEH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ralph S. Gray
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Serial No. 75/725,201
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James C. Wray, P.A. for Ralph S. Gray.
Karanendra S. Chhina, Trademark Examining Attorney, Law Office
101 (Jerry Price, Managing Attorney).
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Before Wendel, Holtzman and Drost, Administrative Trademark
Judges.
Opinion by Holtzman, Administrative Trademark Judge:
The Board, on April 11, 2002, issued a decision affirming
the refusal to register HEMP BURGER for "sandwiches" under
Section 2(e)(1) of the Trademark Act. Applicant filed a timely
request for reconsideration of that decision. In this request,
applicant argues that the Examining Attorney's NEXIS search only
retrieved ten relevant articles; that "out of the over 1 trillion
references contained in Lexis Nexis" those ten articles represent
a miniscule percentage of the total number of documents and
Ser No. 75/725,201
2
therefore "does not suggest generic use"; and that the NEXIS
articles are all "several years old and thus outdated."
Applicant contends that the website printouts are also outdated
and, moreover, that the websites "are not self-proving" and
therefore cannot be used as evidence of descriptiveness.
To begin with, we note that applicant never previously
argued that the NEXIS evidence represented an insignificant
percentage of the entire database or that the Internet evidence
is not "self-proving" (to the extent we can understand that
argument). It is inappropriate for applicant to use a request
for reconsideration as an opportunity to present new arguments
that should have been raised before we issued our decision.
Furthermore, none of the arguments raised in the request for
reconsideration have merit. Rather than a contention that the
selected articles are not representative of the whole of the
search results, applicant argues instead that they are not
representative of the whole of the entire database, a matter of
no importance. As in surname cases, there is no "magic number"
of articles which would be required to establish that a term is
descriptive.1 The important consideration is the quality and
character of the evidence which is of record, that is, whether
1 See In re BDH Two Inc., 26 USPQ2d 1556 (TTAB 1993)["There is no magic
number of listings which is probative to show that a term is primarily
merely a surname."] and In re Industrie Pirelli Societa per Azioni, 9
USPQ2d 1564 (TTAB 1988).
Ser No. 75/725,201
3
the articles which are selected contain clear references of
descriptive usage of the term.2 In this case, the evidence shows
clear and unambiguous use of the words "hemp burger" to identify
a type of sandwich known as a "hemp burger." The Examining
Attorney obtained the evidence from a variety of Internet
websites and from NEXIS articles published in such general
circulation newspapers as The San Francisco Chronicle, The Denver
Post, and the Los Angeles Times. This evidence is sufficient
overall to establish that HEMP BURGER is descriptive of
applicant's sandwiches and makes it clear that HEMP BURGER would
be perceived by the relevant public, that is, the segment of the
public who will be purchasing applicant's sandwiches, as a type
of sandwich offered by applicant rather than a mark for
applicant's sandwiches. The fact that applicant itself chose to
describe its goods in the original application as "hemp burgers,
to eat that look like regular burgers, made from hemp seed"
reinforces the meaning of HEMP BURGER as a descriptive term.
Applicant's assertion that the evidence is "outdated" is not
understood. The NEXIS articles are in fact relatively current,
appearing in publications dating from 1998 to 2000, and the
website printouts include posting dates of June 1998, July 27,
2 Moreover, contrary to applicant's apparent contention, the Examining
Attorney was not required to establish that HEMP BURGER is generic.
Ser No. 75/725,201
4
1999, August 2, 1999 and July 2001. The Internet printouts also
show, for example, that hemp burgers were available for purchase
on YAHOO and other of the selected websites at least as of the
date those sites were accessed by the Examining Attorney. More
importantly, however, there is nothing in the record to suggest
that the meaning conveyed by the term in those web pages has
changed over time or that the information contained in the
articles is no longer accurate.
Finally, it is not clear what applicant means by evidence
that is not "self-proving." If applicant means that the website
articles are hearsay, that argument was previously addressed in
the decision (page 6, n.4) and applicant has made no contention
that the decision is deficient in that regard. If applicant
means that the articles are not self-authenticating, we would
point out that the source of each website has been identified as
well as the date the pages from those sites were printed out by
the Examining Attorney, and applicant was free to check the
websites for accuracy or misleading context or to see if the
websites were still active, if applicant had chosen to do so.3
Applicant's request for reconsideration is denied.
3 Evidentiary requirements in an ex parte proceeding are less formal
than in an inter partes proceeding. See TBMP § 1208 and In re Urbano,
51 USPQ2d 1776 (TTAB 1999).