RH US, LLC

Trademark Trial and Appeal BoardJul 30, 2020

87916530 (T.T.A.B. Jul. 30, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: July 30, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re RH US, LLC _____ Serial No. 87916530 _____ David A. Plumley of Lewis Roca Rothgerber Christie LLP, for RH US, LLC. Susan A. Richards, Trademark Examining Attorney, Law Office 103, Stacy B. Wahlberg, Managing Attorney. _____ Before Cataldo, Greenbaum and Lebow, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: RH US, LLC (“Applicant”) seeks registration on the Principal Register under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f), of the proposed mark, as displayed below, for “chairs and sofas” in International Class 20.1 1 Application Serial No. 87916530 was filed on May 10, 2018, based upon Applicant’s allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming February 24, 2010 as both the date of first use and the date of first use in commerce. Serial No. 87916530 - 2 - Color is not claimed as a feature of the proposed mark. The description of the proposed mark reads as follows: The mark consists of a three-dimensional configuration of arms for a chair or sofa. The broken lines depicting legs, seating surfaces, and back support surfaces do not form part of the mark. Throughout this decision, we generally refer to the proposed mark as a Chair and Sofa Arms Design. Applicant’s specimens of use submitted with the Application and with Applicant’s October 2, 2019 Request for Reconsideration display this Chair and Sofa Arms Design as arms for chairs and sofas in the “Provence” collection of furniture in Applicant’s catalogues. The Examining Attorney refused registration under Sections 1, 2 and 45 of the Trademark Act, 15 U.S.C. §§ 1051-52 and 1127, on the ground that Applicant’s proposed mark consists of a non-distinctive product design that does not function as a trademark and has not acquired distinctiveness under Section 2(f) of the Trademark Act. Serial No. 87916530 - 3 - When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed.2 We affirm the refusal to register. I. Evidentiary Issue Applicant attached to its brief an article from “House Beautiful” about Applicant (Exhibit C), and a copy of third-party Reg. No. 5367417 and a Response to Office Action for that registration (Exhibits D and E), none of which were previously made of record. 7 TTABVUE 49-60, 63-67. The Examining Attorney objects to this evidence because it is untimely.3 9 TTABVUE 2-3.4 Applicant, in reply, argues that the Board should consider the exhibits attached to its brief notwithstanding their omission from the record because: (1) “the Board can ‘take judicial notice of a relevant fact not subject to reasonable dispute’ (TBMP § 704 § 704.12(b),” which Applicant contends applies to the article about Applicant contained in Exhibit C, and “would help the Board with its understanding of the background of the Application” and “Applicant”; and (2) “Applicant had no previous 2 In her brief, the Examining Attorney expressly withdrew the final refusals as to whether the drawing is a substantially exact representation of the proposed mark as used under Trademark Rule 2.51(a), 37 C.F.R. § 2.51(a), and whether the specimens support use of the proposed mark under Trademark Act Sections 1 and 45, 15 U.S.C. §§ 1051 and 1127. 9 TTABVUE 2. 3 The Examining Attorney’s objection to Exhibits G and H to Applicant’s Brief is moot. Applicant agrees in its Reply Brief that the exhibits may be excluded because they pertain to the now-withdrawn refusal about Applicant’s specimen. 10 TTABVUE 3. 4 All citations to documents contained in the TSDR database are to the downloadable .pdf versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). 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. Serial No. 87916530 - 4 - need or opportunity to attached the evidence contained in Exhibits D and E,” since they were only attached as rebuttal to an argument first raised made the Examining Attorney in her denial of Applicant’s request for reconsideration of the final refusal. 10 TTABVUE 3-4. Contrary to Applicant’s arguments, Exhibit C is not the proper subject of judicial notice. Rule 201 of the Federal Rules of Evidence allows for, or on an appropriate proffer, requires, that judicial notice be taken only when the “fact is not subject to reasonable dispute.” Here, while the existence of an article regarding Applicant may be such a fact, the import of the article and whether it supports Applicant’s arguments is a subject of reasonable dispute. Thus, even if Applicant had made the article of record during prosecution, it does not follow as a matter of course that it would be considered as undisputed evidence of trademark use by Applicant. As for Exhibits D and E, if, as Applicant states, this evidence is relevant to arguments raised by the Examining Attorney for the first time in the October 29, 2019 Denial of Request for Reconsideration, Applicant should have filed with the Board a Request for Remand, with a showing of good cause, rather than attaching the evidence to its brief. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 1209 (June 2020). We sustain the Examining Attorney’s objection, and have not considered the three exhibits. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d) (record should be complete prior to appeal).5 5 Also, there was no need for Applicant to attach to its brief Exhibits A (one page of marketing material) and B (Applicant’s design patents for a lounge chair and a sofa, both of which Serial No. 87916530 - 5 - II. Acquired Distinctiveness of Product Design Because the Chair and Sofa Arms Design is a product design, it is not inherently distinctive, and it can be registered as a mark only on a showing of acquired distinctiveness. Wal-Mart Stores Inc. v. Samara Bros. Inc., 529 U.S. 205, 54 USPQ2d 1065, 1069 (2000) (“Consumers are aware of the reality that, almost invariably, even the most unusual of product designs – such as a cocktail shaker shaped like a penguin – is intended not to identify the source, but to render the product itself more useful or more appealing.”); AS Holdings, Inc. v. H & C Milcor, Inc., 107 USPQ2d 1829, 1837 (TTAB 2013). Applicant acknowledged as much by seeking registration of the proposed mark under Section 2(f) of the Trademark Act. See Yamaha Int’l Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988) (“Where, as here, an applicant seeks a registration based on acquired distinctiveness under Section 2(f), the statute accepts a lack of acquired distinctiveness as an established fact.”). Therefore, the issue is whether Applicant has overcome the refusal of its proposed mark as non-distinctive product design by making a prima facie showing that relevant consumers perceive the Chair and Sofa Arms Design as a trademark for chairs and sofas. In re SnoWizard, Inc., 129 USPQ2d 1001, 1004 (TTAB 2018). Applicant bears the burden of proving acquired distinctiveness. In re La. Fish contain the proposed mark), as Applicant already made them of record by attaching them to the February 21, 2019 Response to Office Action (TSDR at 55 and 31-51, respectively) and the October 2, 2019 Request for Reconsideration (TSDR at 181 and 157-177, respectively). See In re Allegiance Staffing, 115 USPQ2d 1319, 1323 (TTAB 2015) (practice of attaching to appeal brief copies of the same exhibits submitted with responses is discouraged); In re Thor Tech Inc., 85 USPQ2d 1474, 1475 n.3 (TTAB 2007) (attaching evidence from record to briefs is duplicative and unnecessary). Serial No. 87916530 - 6 - Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015) (citing In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir. 2005)) (“The applicant … bears the burden of proving acquired distinctiveness.”); In re Hollywood Brands, Inc., 214 F.2d 139, 102 USPQ 294, 295 (CCPA 1954) (“There is no doubt that Congress intended that the burden of proof [under Section 2(f)] should rest upon the applicant ….”). Whether an applicant has established acquired distinctiveness is a question of fact. In re Becton, Dickinson and Co., 675 F.3d 1368, 102 USPQ2d 1372, 1375 (Fed. Cir. 2012). A mark has acquired distinctiveness “if it has developed a secondary meaning, which occurs when, ‘in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.’” Wal-Mart, 54 USPQ2d at 1068 (quoting Inwood Labs, Inc. v. Ives Labs., Inc., 456 U.S. 844, 214 USPT 1, 4 n.11 (1982)); see also Stuart Spector Designs Ltd. v. Fender Musical Instruments Corp., 94 USPQ2d 1549, 1554 (TTAB 2009) (“An applicant must show that the primary significance of the product configuration in the minds of consumers is not the product but the source of that product in order to establish acquired distinctiveness.”). There is no fixed rule for the amount of proof necessary to demonstrate acquired distinctiveness, but the burden is heavier for product configurations than for word marks. Kohler Co. v. Honda Gikken Kogyo K.K., 125 USPQ2d 1468, 1504 (TTAB 2017); In re Udor U.S.A. Inc., 89 USPQ2d 1978, 1986 (TTAB 2009); In re Ennco Display Sys. Inc., 56 USPQ2d 1279, 1283-84 (TTAB 2000). Serial No. 87916530 - 7 - That is because, as noted above, consumers are not predisposed to view product features as potential source-identifiers. See Wal-Mart, 54 USPQ2d at 1069. Acquired distinctiveness may be shown by direct or circumstantial evidence. Stuart Spector Designs, 94 USPQ2d at 1554; see also Schlafly v. Saint Louis Brewery, LLC, 909 F.3d 420, 128 USPQ2d 1739, 1743 (Fed. Cir. 2018) (“The Board and courts have recognized that both direct and circumstantial evidence may show secondary meaning.”) (citation omitted). Direct evidence includes actual testimony, declarations or surveys of consumers as to their state of mind. Kohler, 125 USPQ2d at 1506; Ennco, 56 USPQ2d at 1283. By contrast, circumstantial evidence is evidence from which consumer association might be inferred, such as years of use, prior registrations, extensive amount of sales and advertising, unsolicited media coverage, and any similar evidence showing wide exposure of the mark to consumers. Kohler, 125 USPQ2d at 1506; see also Tone Bros. v. Sysco Corp., 28 F.3d 1192, 31 USPQ2d 1321 (Fed. Cir. 1994) (listing, as examples of circumstantial evidence, advertising, sales figures, and intentional copying by competitors). Evidence of acquired distinctiveness of a product design “must relate to the promotion and recognition of the specific configuration embodied in the applied-for mark and not to the goods in general.” In re Change Wind, 123 USPQ2d 1453, 1467 (TTAB 2017) (citing Inwood Labs., 214 USPQ at 4 n.11); see also SnoWizard, 129 USPQ2d at 1005 (citing Converse, Inc. v. ITC, 909 F.3d 1110, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018)). Serial No. 87916530 - 8 - The types of evidence to be assessed and weighed in determining acquired distinctiveness of a proposed product design mark include (1) association of the product design 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. See Converse, 128 USPQ2d at 1546. We consider and weigh all of the factors for which there is evidence in the record in this case to determine whether Applicant has demonstrated secondary meaning.6 Id. A. Evidence of Record Following Applicant’s initial Section 2(f) claim based on “substantially exclusive and continuous use” of the proposed mark in commerce on the goods for at least five years, Applicant submitted as evidence of acquired distinctiveness (1) the Declaration of Joshua Benson, Applicant’s Senior Counsel for Intellectual Property (“Benson Declaration,” with exhibits), attesting to the length, degree and exclusivity of use; the amount and manner of advertising; the amount of sales and number of customers; and Applicant’s ownership of design patents for a lounge chair and a couch, both of which contain the Chair and Sofa Arms Design;7 (2) the Declaration of Aaron D. 6 Applicant did not submit a consumer survey or unsolicited media coverage. Cf. Converse, 128 USPQ2d at 1546. The “absence of consumer surveys need not preclude a finding of acquired distinctiveness.” Yamaha, 6 USPQ2d at 1010. Neither is evidence of unsolicited media coverage of a mark (another factor of analysis mentioned by the Federal Circuit in Converse) required to be shown. However, given the heavy burden to establish acquired distinctiveness for product configurations, such evidence can be helpful to applicants in their attempt to meet that burden. 7 Applicant submitted the Benson Declaration and associated exhibits twice, once with its February 21, 2019 Response to Office Action, TSDR at 27-153, and again with its October 2, Serial No. 87916530 - 9 - Johnson, counsel for Applicant (“Johnson Declaration”), concerning cease and desist letters; (3) 61 Consumer Statements; and (4) a third-party registration for the configuration of a chair. The Examining Attorney made of record printouts from a number of different retail and online retail stores, including national retail stores such as Bed, Bath & Beyond, Target and Pottery Barn, which offer chairs and sofas with arms that she contends are virtually identical or substantially similar to the Chair and Sofa Arms Design. 1. Length, Degree and Exclusivity of Use Mr. Benson asserts that Applicant has used the proposed mark on chairs and sofas since February 2010. Benson Declaration ¶ 3, October 2, 2019 Request for Reconsideration, TSDR at 154. He describes the Chair and Sofa Arms Design as “a distinctive sloped arm design consisting of: (a) wide arms, that (b) are rounded at the top, (c) gently curve down with a consistent pitch from the back of the piece to the midpoint, (d) level out to flat from the midpoint to the front of the piece, and (e) have an angled, chevron indentation in the rear (the ‘Provence Slope Arm Design’).”8 Id. 2019 Request for Reconsideration, TSDR at 153-243. This was unnecessarily duplicative and somewhat confusing as it appears that some of the marketing materials that were attached to the Benson Declaration submitted on February 21, 2019 were inadvertently omitted from October 2, 2019 submission. As to Applicant’s design patents for a lounge chair and a sofa that contain the Chair and Sofa Arms Design, “the fact that a device is or was the subject of a design patent does not, without more, bestow upon said device the aura of distinctiveness or recognition as a trademark.” Becton, Dickinson, 102 USPQ2d at 1377. 8 Although the arms do not appear to be as narrow as some of the third-party use evidence of record (e.g., Belham Living Kambree, offered on Hayneedle, April 2, 2019 Final Office Action, TSDR at 380), the record does not support a finding that they are “wide” rather than of average width. And Mr. Benson’s use of the term “wide” contradicts Applicant’s characterization of the Chair and Sofa Arms Design as “cover[ing] chairs and sofas with the distinctive arm configuration, regardless of the ‘width’.” February 21, 2019 Response to Office Action, TSDR at 12. Also, as the Examining Attorney points out, the drawing controls the Serial No. 87916530 - 10 - Where a proposed mark is a non-inherently distinctive product configuration, such as Applicant’s, evidence of long and continuous use considered alone generally is insufficient to show acquired distinctiveness. See In re Koninklijke Philips Elecs. N.V., 112 USPQ2d 1177, 1186 (TTAB 2014) (observing that five years’ continuous use considered alone generally is not sufficient to show that a non-distinctive product configuration has acquired distinctiveness). See also, e.g., In re R.M. Smith, Inc., 734 F.2d 1482, 222 USPQ 1, 3 (Fed. Cir. 1984) (8 years’ use not sufficient evidence of acquired distinctiveness for configuration of pistol grip water nozzles); In re Van Valkenburgh, 97 USPQ2d 1757, 1766 (TTAB 2011) (16 years’ use not conclusive or persuasive to show acquired distinctiveness of motorcycle stands); Mag Instrument v. Brinkmann Corp., 96 USPQ2d 1701, 1723 (TTAB 2010 (27 years’ use insufficient to show acquired distinctiveness for dual bands on flashlight); Ennco, 56 USPQ2d at 1286 (use of product configuration designs ranging between 7 and 17 years not sufficient to show acquired distinctiveness). Applicant claims that the Chair and Sofa Arms Design has acquired distinctiveness based on “substantially exclusive and continuous use” on “[f]urniture pieces containing the Provence Slope Arm Design” in commerce since 2010. Benson Declaration, ¶ 6, October 2, 2019 Request for Reconsideration, TSDR at 155. mark in the application. Change Wind, 123 USPQ2d at 1469 n.6 (citing Trademark Rule 2.52, 37 C.F.R. §2.52); “[t]here is nothing in the drawing indicating that the slope or curve of the arms levels out to flat ‘at midpoint to the front of the piece,’ or that there is ‘an angled, chevron design in the rear[,]” nor is it “possible to specify where the arms ‘level out’ to ‘flat’ in the design” or to see whether there is a “chevron design in the rear.” Examining Attorney Brief, 9 TTABVUE 16. The most we can say is that the drawing page shows a chair and sofa arms design where the arms are sloping, are rounded at the top, and there is an angular indentation on the back edge of the design. Serial No. 87916530 - 11 - Although Applicant’s use may have been “continuous,” the evidence of numerous third-party uses of nearly identical or very similar designs for chair and sofa arms belies Applicant’s contention its use has been “substantially exclusive.” This evidence includes screenshots from numerous different retailers, both brick-and-mortar and online, including national retail establishments such as Pottery Barn, Amazon, and Target, that offer (1) chairs and sofas with downward sloping arms that are virtually identical to the Chair and Sofa Arms Design. Three examples are the Pottery Barn York Sloped upholstered armchair and sofa (August 21, 2018 Office Action, TSDR at 135-144), the Solaura (offered by Amazon, April 2, 2019 Final Office Action, TSDR at 131-166), and the Premium Edgewood Wicker by Smith & Hawken (offered by Target, id., TSDR at 104);9 and (2) chairs and sofas with sloping arms, regardless of width. Three examples are the Antibes (offered by Overstock, id., TSDR at 71-84), the Wolfhurst Patio Chair (offered by Joss and Main, id., TSDR 100-103), and the Donley (offered by AllModern, id., TSDR at 52-59).10 This evidence, from many different sources, supports a finding that consumers are accustomed to seeing chairs and sofas with designs that are virtually identical or substantially similar to the Chair and Sofa Arms Design. Applicant contends that the third-party uses do not vitiate Applicant’s claim that 9 The August 21, 2018 Office Action and April 2, 2019 Final Office Action include approximately 13 other such examples which the Examining Attorney listed in her Appeal Brief and which we incorporate by reference. 9 TTABVUE 9. 10 The August 21, 2018 Office Action and April 2, 2019 Final Office Action include approximately 30 other such examples which the Examining Attorney listed in her Appeal Brief and which we incorporate by reference. 9 TTABVUE 9. Serial No. 87916530 - 12 - its use has been substantially exclusive because none of the uses include all of the features comprising the Chair and Sofa Arms Design. Based on the voluminous marketplace evidence of virtually identical or substantially similar arm designs for chairs and sofas, we disagree. Even if there are minor differences, “[i]n order to be relevant to the question of whether applicant’s mark has acquired distinctiveness, the third-party uses do not have to be identical to applicant’s mark.” Saint-Gobain Corp. v. 3M Co., 90 USPQ2d 1425, 1440 (TTAB 2007) (color mark); see also Goodyear Tire & Rubber Co. v. Interco Tire Corp., 49 USPQ2d 1705, 1720 (TTAB 1998) (differences between applicant’s tire tread designs and third-party designs not shown by applicant to be of source-identifying significance). It is enough if they are substantially similar. Converse, 128 USPQ2d at 1547. While absolute exclusivity is not required for a Section 2(f) registration, see L.D. Kichler Co. v. Davoil, Inc., 192 F.3d 1349, 52 USPQ2d 1307 (Fed. Cir. 1999), the widespread use of other virtually identical or substantially similar chairs and sofas with arms that vary only slightly from the Chair and Sofa Arms Design is inconsistent with Applicant’s claim of acquired distinctiveness and falls short of being “substantially exclusive” as required by the statute. See Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984) (“When the record shows that purchasers are confronted with more than one (let alone numerous) independent users of a term or device, an application for registration under Section 2(f) cannot be successful, for distinctiveness on which purchasers may rely is lacking under such circumstances.”). “[N]on-exclusive use presents a serious problem for the merchant seeking to Serial No. 87916530 - 13 - develop trademark rights in a word, symbol or device that it not inherently distinctive, because it interferes with public perception that it serves as an indicator of a single source ….” In General Mills IP Holdings II, LLC, 124 USPQ2d 1016, 1021 (TTAB 2017). Because the record shows that Applicant’s use of the Chair and Sofa Arms Design has been non-exclusive, Applicant has a “particularly heavy” burden to establish that the proposed mark has acquired distinctiveness under Section 2(f) of the Trademark Act. Stuart Spector Designs, 94 USPQ2d at 1554. 2. Association of the Subject Matter Sought to be Registered With a Particular Source by Actual Purchasers Applicant submitted 61 unsworn signed and dated “Consumer Statements” that appear to have been prepared by Applicant’s counsel.11 The Statements read as follows (emphasis in originals): CONSUMER STATEMENT To Whom It May Concern: I am a customer of Restoration Hardware/RH (“RH”) and am generally familiar with the furniture RH sells. I also frequently shop at a number of other furniture stores in the United States including their retail stores, catalogs, and online stores. As a result, I am generally familiar with furniture offered for sale by non-RH retailers in the United States. As a customer of RH, I am familiar with RH’s collection of outdoor furniture under the brand Provence (the “Provence Collection”), and in particular its use of distinctively sloped arms on its chairs and sofas (the “Provence Sloped Arms,” shown in Exhibit A). Unlike the arms of other chairs or sofas, the Provence Sloped Arms have a unique combination of (a) wide arms, (b) rounded on the top, (c) a gentle and consistent slope, (d) the slope ending at the midpoint 11 October 2, 2019 Request for Reconsideration, TSDR at 30-152. [I]t is not necessary that [form statements] include a declaration as provided in Trademark Rule 2.20. However, this does not mean that all form statements and all forms without declarations will have equal probative value with personal statements and those signed with the safeguards of a Rule 2.20 declaration.” In re Lorillard Licensing Co., 99 USPQ2d 1312, 1319 (TTAB 2011). Serial No. 87916530 - 14 - of the chair, and (e) a chevron indentation in the rear. This design is unique and sets the Provence Sloped Arms apart from the arms of every other chair in the market. The Provence Sloped Arms are used on all chairs and sofas within the Provence Collection. As a result of the extensive use of the Provence Sloped Arms on these products, I now associate those distinctive sloped arms exclusively with RH’s Provence Collection in the context of sofas and chairs. I am familiar with other home furnishing stores and online retailers, and the furniture sold at those stores. I am not aware of any other chair or sofa that uses arms with a design similar to the Provence Sloped Arms. To me, the distinctive slope and shape of the Provence Sloped Arms in the context of chairs and sofas signifies only RH, and in particular its Provence Collection of outdoor furniture. Specifically, when I see a chair or sofa with the distinctive slope and shape of the Provence Sloped Arms – even if I only see an arm of that product – I know immediately that it is a chair or sofa from RH. *** “‘Form statements may be used to show acquired distinctiveness,’ …. but the ones here suffer from multiple deficiencies that vitiate their probative value on the issue of acquired distinctiveness.” Kohler, 125 USPQ2d at 1507 (quoting In re Florists’ Transworld Delivery Inc., 106 USPQ2d 1784, 17894 n.9 (TTAB 2013)). “First, ‘they are all essentially identical in form and were clearly not composed individually …. [S]uch statements are less persuasive than statements expressed in the declarants’ own words.” Id. (quoting In re Pohl-Boskamp GmbH & Co., 106 USPQ2d 1402, 105 (TTAB 2013)). Second, there is no way to tell how many individuals were sampled to obtain the 61 Consumer Statements, and thus what proportion of those sampled the 61 Statements represent. For example, if thousands of consumers were approached but declined to provide Statements, the 61 who responded might not be representative of Serial No. 87916530 - 15 - Applicant’s customers. Nor is there any indication of when, where, or the circumstances under which the Consumer Statements were taken. For example, whatever probative value the Statements might have could be reduced if they were taken in or near one of Applicant’s stores or in a mall where one of Applicant’s stores is located, or if the customers received any kind of incentive for completion. Third, the Consumer Statements refer to, and are expressly based upon “Exhibit A,” consisting of the application drawing showing the proposed mark directly below the typed wording “The Provence Sloped Arms,” but the typed wording is not part of the proposed mark. Thus, we cannot determine the extent to which these consumers professed association of the “distinctive slope and shape” of the arms with Applicant based solely on the claimed features of the Chair and Sofa Arms Design, or rather based their association on Applicant’s separate use of the “Provence” brand name in “Exhibit A,” especially where the wording “Provence Sloped Arm” is used throughout the Consumer Statements. Because the Consumer Statements do not distinguish between the typed wording that appears in “Exhibit A” and the body of the Statements, and the proposed mark which does not include that wording, the Statements are not probative of the distinctiveness of the Chair and Sofa Arms Design itself. Kohler, 125 USPQ2d at 1507; see also, e.g., Florists’ Transworld Delivery, 106 USPQ2d at 1793 (discounting form declarations offered to show acquired distinctiveness of color black for floral arrangements because accompanying photograph of product packaging included other matter). Serial No. 87916530 - 16 - Fourth, the Consumer Statements are “conclusorily worded [and] fail to explain what it is about [the applied-for mark] that is unique or unusual, or distinctive from those of [Applicant’s] competitors.” In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1633 (Fed. Cir. 2003). Each Consumer Statement describes the “distinctively sloped arms” of the Chair and Sofa Arms Design (“shown in Exhibit A”) as “a unique combination of (a) wide arms, (b) rounded on the top, (c) a gentle and consistent slope, (d) the slope ending at the midpoint of the chair, and (e) a chevron indentation in the rear.” (Emphasis in original.) As with Mr. Benson’s Declaration, the foregoing description identifies features of the Chair and Sofa Arms Design that are not evident from the drawing page. See Change Wind, 123 USPQ2d at 1469 n.6 (citing Trademark Rule 2.52, 37 C.F.R. §2.52) (drawing controls). Moreover, nothing in the Consumer Statements explains why the specific combination of identified features in the proposed mark are considered unique or unusual as compared to the numerous other virtually identical or substantially similar designs for chairs and sofas with sloped arms used by Applicant’s competitors such that they would view Applicant’s specific design as an indicator of source. The weight of the evidence supports the opposite conclusion. 3. Amount of Sales and Number of Customers Mr. Benson provided sales figures of approximately 72,000 “furniture pieces” with the Chair and Sofa Arms Design in the U.S. since 2010, with sales ranging from 5,400-10,700 per year, and sales of “pieces containing the Provence Slope Arm Design totaling approximately $77 million since 2010,” with sales ranging from $6.1-$11.4 million per year. Benson Declaration ¶¶ 6-7, October 2, 2019 Request for Serial No. 87916530 - 17 - Reconsideration, TSDR at 155-156. According to Mr. Benson, “[p]rices for furniture pieces including the Provence Slope Arm Design range from $821 to $3195.” Id. ¶ 9, TSDR at 30. We cannot glean any meaningful information from these sales figures since Applicant failed to submit any evidence regarding the cost of each of its Provence chairs and sofas, how many customers have purchased Provence chairs and sofas, or how many accessories such as Provence pillows it sold per year, versus the chairs and sofas in Applicant’s Provence collection. More importantly, Applicant provided no industry context for its figures, such as its relative market share of chairs and sofas, or its sales position as compared to its competitors, thus further diminishing the probative value of these raw numbers. In re MK Diamond Prods., Inc. (TTAB July 27, 2020 at *54). Nonetheless, even if we were to assume the sales figures to demonstrate some commercial success, “mere figures demonstrating successful product sales are not probative of purchaser recognition of a configuration as an indication of source.” Stuart Spector Designs, 95 USPQ2d at 1572 (citing Braun Inc. v. Dynamics Corp., 975 F.2d 815, 24 USPQ2d 1121, 1133 (Fed. Cir. 1992)); see also In re Bongrain Intl (Am.) Corp., 13 USPQ2d 1727, 1729 (Fed. Cir. 1990) (growth in sales may be indicative of popularity of product itself rather than recognition of the proposed mark as denoting origin). 4. Amount and Manner of Advertising Applicant’s claim of acquired distinctiveness also is based on Applicant’s advertising and marketing efforts. According to Mr. Benson, Applicant has continuously advertised “furniture pieces containing the Provence Slope Arm Design” since 2010, and has “widely marketed” the “Provence Slope Arm Design” “to Serial No. 87916530 - 18 - consumers across the US, including through [Applicant’s] catalogues, known as Source Books … and on [Applicant’s] website,” which displays “furniture pieces containing the Provence Slope Arm Design[.]” Benson Declaration ¶ 8, October 2, 2019 Request for Reconsideration, TSDR at 156. “Chairs including the Provence Slope Arm Design have been widely displayed and sold by [Applicant] across the United States for over 9 years, including in 109 retail stores across the United States, through [Applicant’s] Source Books, which are distributed to 6-8 million US households each year, and online at [Applicant’s] website … which receives approximately 20 million unique visits each year.” Id., ¶ 9. As noted above, the critical inquiry is whether Applicant’s product design is used and advertised in the marketplace in a manner that educates consumers to recognize the product design as serving to distinguish the source of such products from the goods of others. See Stuart Spector Designs, 94 USPQ2d at 1572 (“To determine whether a configuration has acquired distinctiveness, advertisements must show promotion of the configuration as a trademark.”). Sample advertisements showing “look-for” types of promotional efforts from an applicant may be particularly probative on the issue of whether a product design functions as a source identifier. “‘Look for’ advertising refers to advertising that directs the potential consumer in no uncertain terms to look for a certain feature to know that it is from that source. It does not refer to advertising that simply includes a picture of the product or touts a feature in a non source-identifying manner.” Id. Serial No. 87916530 - 19 - Here, the record is devoid of “look for” advertising. Cf. In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417, 423-23 (Fed. Cir. 1985) (describing effective “look for” advertising). The catalogues/Source Books and Internet printouts of Applicant’s Provence collection of furniture include photographs of chairs and sofas with the Chair and Sofa Arms Design, but there is no mention of any particular product features of the proposed mark. The materials use generic terms to describe the Provence collection of furniture, rather than promoting recognition of the shape or salient features of the Chair and Sofa Arms Design as a source indicator for chairs and sofas. Indeed, of the approximately 60 pages of advertising, spanning 8 years, only 5 pages refer to the arms and sofas, and they do so in only the most cursory fashion, in the same manner used to describe the material composition, “low profile,” and number of available finishes for the goods.12 In fact, the only text mentioning the arms reads: 12 The other advertisements include generic descriptions and information about such things as the color of the furniture, available finishes, fabrics for the cushions, and the sizes and prices of the pieces. See generally October 2, 2019 Request for Reconsideration, TSDR at 181- 235, 240-243. Serial No. 87916530 - 20 - PROVENCE COLLECTION IN GREY ALL-WEATHER WICKER A VINTAGE DESIGN THAT EVOKES THE SOUTH OF FRANCE IS INTERPRETED IN HANDWOVEN, VARIEGATED ALL-WEATHER WICKER. THE GENEROUSLY PROPORTIONED SILHOUETTE FEATURES A LOW PROFILE AND GRACEFULLY SLOPING ARMS. AVAILABLE IN 5 FINISHES. October 2, 2019 Request for Reconsideration, TSDR at 209 and 214.13 Applicant provides no reason why any consumer who views this text would understand the wording “gracefully sloping arms” (which is not highlighted in any way) to identify source, and we see none. As the Examining Attorney aptly notes, “[t]here is a complete absence of any copy calling attention to the features claimed in the [Benson] Declaration and in the 61 Consumer Statements in a source identifying manner. The mere reference to ‘gracefully sloping arms’ in the context of generic descriptions of the furniture does not amount to ‘look for’ advertising touting the features of the applied-for mark.” Examining Attorney Brief, 9 TTABVUE 11 (internal citations omitted). In addition, as with Applicant’s sales figures, Applicant’s advertising materials are not limited to displaying or promoting the Chair and Sofa Arms Design on the chairs and sofas in the Provence collection. Rather, the materials also include photographs of furniture accessories from Applicant’s Provence collection (e.g., cushions). The materials further include photographs of several other collections of Applicant’s furniture, such as the Del Mar, Hampshire, La Jolla, Carmel and 13 The other three pages are essentially the same, but for immaterial differences such as omitting the wording “All-Grey Wicker” and substituting the word “class” for the word “vintage.” Id., TSDR at 216, 225 and 231. Serial No. 87916530 - 21 - Klisomos collections (October 2, 2019 Request for Reconsideration, TSDR at 179). It therefore is not clear what percentage of Applicant’s advertising is directed specifically to advertising the Chair and Sofa Arms Design for the identified chairs and sofas (or even other items in the Provence collection), or the degree to which the advertising is aimed at establishing the Chair and Sofa Arms Design as a source identifier in the minds of consumers. See AS Holdings, 107 USPQ2d at 1838; see also Target Brands, Inc. v. Hughes, 85 USPQ2d 1676, 1681 (TTAB 2007). Because Applicant’s advertising and marketing materials do not promote the features of the Chair and Sofa Arms Design to consumers, either in text or in photographs, the photographs of Applicant’s chairs and sofas in these materials are nothing more than an illustration for Applicant’s goods rather than promotion of the Chair and Sofa Arms Design as a trademark. See In re Pingel, 46 USPQ2d 1811, 1823 (TTAB 1998) (“[I]n this case there is a complete absence of any advertising or promotional uses of applicant’s and advertisements [that] show … the petcock configuration as a mark. Instead, applicant’s catalog and advertisements show … that the petcock configuration is used solely as an illustration of applicant’s product[.]”). Accordingly, Applicant’s advertising and marketing materials do not demonstrate that prospective purchasers of Applicant’s chairs and sofas view the Chair and Sofa Design as an indication of their source. 5. Evidence of Intentional Copying Applicant’s attorney attested to the mailing of “at least 27 cease and desist letters to companies selling knock off PROVENCE products, all of which included products Serial No. 87916530 - 22 - that incorporated the Provence Slope Arm Design” and that “[n]early every single company … ceased sales of the PROVENCE knock off products.” Johnson Declaration, ¶¶ 3-4, February 21, 2019 Response to Office Action, TSDR at 155. Applicant did not submit copies of any of the cease and desist letters. We agree with the Examining Attorney that the Johnson Declaration is vague and entitled to little probative weight. As she explains: It does not specify the parties involved, whether the disputes involved use of the Chair and Sofa Arms design or other marks, such as the name for the collection or names for the fabrics identified in Applicant’s advertising materials, or particular results. There are no copies of any of these letters or responses in the record. Applicant also has not contended that it has taken any legal action, whether by sending cease and desists letters or instituting legal proceedings, against any of the parties identified in the any of the evidence enclosed with any of the Office Actions. (Emphasis in italics in original.) Examining Attorney Brief, 9 TTABVUE 11-12. B. Conclusion After weighing all of the factors for which there is evidence in determining whether the Wicker Chaise Lounge Design has acquired distinctiveness, we find that Applicant has not established that the Wicker Chaise Lounge Design has acquired distinctiveness as a source identifier for with Applicant’s chaise lounges. Decision: The refusal to register under Sections 1, 2 and 45 of the Trademark Act on the ground that Applicant’s proposed mark is a non-distinctive product design and that Applicant has not established acquired distinctiveness under Section 2(f) of the Trademark Act is affirmed.