Scruples Professional Salon Products, Inc.

Trademark Trial and Appeal Board

Jan 4, 1999

No. 75079106 (T.T.A.B. Jan. 4, 1999)

Paper No. 10
BAC
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JAN. 4, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Scruples Professional Salon Products, Inc.
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Serial No. 75/079,106
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Gregory P. Kaihoi of Fredrikson & Byron, P.A. for Scruples
Professional Salon Products, Inc.
Hannah Fisher, Trademark Examining Attorney, Law Office 107
(Thomas Lamone, Managing Attorney)
_______
Before Hairston, Chapman and Wendel, Administrative
Trademark Judges.
Opinion by Chapman, Administrative Trademark Judge:
An application has been filed by Scruples Professional
Salon Products, Inc. to register the mark UN-CURL for a
“hair care preparation for straightening hair”.1
Registration has been refused under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis that

1 Application Serial No. 75/079,106, filed March 27, 1996,
alleging a bona fide intention to use the mark in commerce.
Ser. No. 75/079106
2
the mark UN-CURL when applied to the goods of the
applicant, is merely descriptive of them.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm.
The Examining Attorney contends that the term UN-CURL
is the equivalent in meaning of the term “straighten”; that
the term UN-CURL is a common English verb meaning to
straighten curls; and that the term merely describes the
function of applicant’s hair straightening preparation.
The Examining Attorney submitted (i) the definition in
Webster’s Ninth New Collegiate Dictionary of the term
“uncurl” as “to become straightened out from a curled or
coiled position ~vt: to straighten the curls of”; (ii) the
definition in Webster’s Ninth New Collegiate Dictionary of
the term “curl” as a verb “1: to form (as the hair) into
coils or ringlets” and as a noun “1: a lock of hair that
coils”; and (iii) several excerpts from a Lexis/Nexis
search demonstrating use of the word “uncurl” relating to
straightening the hair. A few examples of these excepts
include the following:
This was the same guy who, when he heard Jordan
was returning to the Bulls, it took three strong men
with blow dryers to uncurl Riley’s hair. “The San
Francisco Chronicle,” March 20, 1995;
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3
It’s enough to uncurl your hair. Long, stick-
straight ‘60s hair is all the rage. “The Arkansas
Democrat-Gazette,” July 4, 1991; and
Turner is sleek and remarkably ‘90s with her
sling-back shoes and her natural uncurled fall of
hair. “Newsday”, March 4, 1990.
Applicant, in urging reversal of the refusal to
register, argues that the mark UN-CURL is suggestive, not
merely descriptive, of applicant’s goods because the mark
describes a desired end result of the use of applicant's
product, but does not describe the product itself; that the
word “uncurl” may apply to the straightening of any curled
or curved object, such as a coiled spring, a roll of paper
or film;2 and that any doubt regarding descriptiveness is to
be resolved in applicant’s favor.
A term is merely descriptive of goods or services,
within the meaning of Section 2(e)(1), if it immediately
conveys information concerning an ingredient, quality,
characteristic or feature thereof, or if it directly
conveys information regarding the nature, function, purpose
or use of the goods or services. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).

2 Applicant attached to its reply brief the results of a search
of the word “uncurl” in the Patent and Trademark Office patent
database. The search revealed a listing of 20 patents. This
evidence is untimely and will not be considered. See Trademark
Rule 2.142(d). We hasten to add that even if we had considered
this evidence, it would not change the result herein.
Ser. No. 75/079106
4
It is not necessary that a term or phrase describe all of
the properties or functions of the goods or services in
order for it to be considered merely descriptive thereof;
rather, it is sufficient if the term or phrase describes a
significant attribute or idea about them.
The question of whether a particular term or phrase is
merely descriptive must be determined not in the abstract,
but in relation to the goods or services for which
registration is sought, the context in which the term or
phrase is being used on or in connection with those goods
or services, and the possible significance that the term or
phrase is likely to have to the average purchaser of the
goods or services because of the manner in which it is
used. See In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB
1979). See also, In re Consolidated Cigar Co., 35 USPQ2d
1290 (TTAB 1995); and In re Pennzoil Products Co., 20
USPQ2d 1753 (TTAB 1991).
In the present case, based on the evidence described
above, we find that the term UN-CURL when applied to
applicant’s hair care preparation for straightening hair,
is merely descriptive of the goods in that it immediately
informs prospective purchasers that applicant’s goods are a
preparation for straightening hair. Specifically, the
evidence shows that the word “curl” relates to forming hair
Ser. No. 75/079106
5
into ringlets, and the meaning of the word “uncurl” is “to
become straightened out”. See The Fleetwood Company v.
Mende, assignee of Tint ‘N Set, Inc., 298 F.2d 797, 132
USPQ 458 (CCPA 1962) wherein the Court affirmed the Board’s
dismissal of a petition to cancel the mark TINT ‘N SET on
the Supplemental Register for hair treating compound based
on petitioner’s mark TINTZ for hair coloring shampoo, hair
rinse, hair coloring, hair color touch-up pencil and cream
shampoo, stating that to grant the petition to cancel based
on TINTZ (a phonetic spelling of “tints”) “would be
tantamount to giving [petitioner] the exclusive use of a
common English word used in its common meaning to endeavor
to identify a hair tinting product.” See also, In re State
Chemical Manufacturing Co., 225 USPQ 687 (TTAB 1985)
wherein the Board affirmed the Examining Attorney’s refusal
to register the term FOM (the equivalent of “foam”) for
industrial cleaner for carpets, rugs and upholstery as
merely descriptive thereof.
The Board has reviewed the three primary cases relied
on by applicant, and we have no disagreement with the
general propositions set forth therein. However, the fact
situations in the cited cases are specifically different
from the facts of the case now before the Board. Also, the
marks in issue in the cited cases involve words which are
Ser. No. 75/079106
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more fanciful, obscure or general than the term now before
the Board.
The cited case of In re The Realistic Company, 440
F.2d 1393, 169 USPQ 610 (CCPA 1971), involved a misspelling
of the word CURVE, and the Court found (Judge Skelton
dissenting) that CURV is not merely descriptive of
permanent wave curling solutions because the word “curve”
is as suggestive of any article of manufacture that
involves a curved shape as it is of permanent wave curling
solutions and their intended uses. The case currently
before the Board does not involve a misspelling of the word
“uncurl”3; and the word “curl” with relation to hair care is
not a general or ambiguous word as was the word “curve” in
relation to hair care products.
The case of In re C. J. Webb, Inc., 182 USPQ 63 (TTAB
1974), involved the Examining Attorney’s requirement for a
disclaimer of the term BRAKLEEN in applicant’s mark CRC
BRAKLEEN and design for a chemical composition for cleaning
and degreasing automotive brake parts. The Board reversed
the requirement for a disclaimer stating the term is not an
“unregistrable component” of the composite mark as it is

3 Applicant’s inclusion of the hyphen does not change the
purchasing public’s perception or understanding of the term
“uncurl”.
Ser. No. 75/079106
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suggestive of a desired result of the use of applicant’s
product. In the case now before the Board the word
“uncurl” with regard to a hair care product to straighten
the hair is directly descriptive of the function of the
product, which is a preparation to straighten or “uncurl”
the hair.
Finally, in the case of In re Universal Water Systems,
Inc., 209 USPQ 165 (TTAB 1980), the Board reversed the
refusal to register the mark PURITY as merely descriptive
of water filtering units, water filter cartridges and water
softening units holding that the term PURITY, as defined in
the dictionary (“the quality or state of being pure”) was a
“rather abstract concept”, and did not describe the goods
or the purpose of the goods, but rather was suggestive of
the desired result of the use of the goods. In the present
case, the word “uncurl” is straight-forward, not abstract.
The term UN-CURL relates to hair and the purpose of the
goods when used on hair, and would be so understood by the
purchasing public.
Ser. No. 75/079106
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Decision: The refusal to register under Section
2(e)(1) is affirmed.
P. T. Hairston
B. A. Chapman
H. R. Wendel
Administrative Trademark Judges,
Trademark Trial and Appeal Board