Mailed:
February 19, 2003
Paper No. 16
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Signs Plus, New Ideas-New Technology, Inc.
________
Serial No. 76225929
_______
Mark D. Schneider and Ernest I. Gifford of Gifford Krass
Groh Sprinkle Anderson & Citkowski for Signs Plus, New
Ideas-New Technology, Inc.
Brian Neville, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______
Before Simms, Quinn and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Signs Plus, New Ideas-New Technology, Inc. seeks
registration on the Principal Register of the mark shown
below:
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 76225929
- 2 -
as a trademark allegedly used in connection with “non-
luminous signs, non-mechanical metal signs, metal numbers
and letters with means for temporarily affixing to the
signs,” in International Class 6.1
The Trademark Examining Attorney has refused
registration of applicant’s marks based upon the ground
that this matter does not function as a trademark for
applicant’s identified goods under Sections 1, 2 and 45 of
the Trademark Act, 15 U.S.C. §§1051, 1052 and 1127, and
that applicant has failed to submit acceptable specimens
demonstrating good trademark usage.2
Applicant argues there is no support in the record or
in the cited case law for this refusal. Moreover, while
applicant’s responses throughout the prosecution reference
neither the concept of acquired distinctiveness nor the
application of Section 2(f) of the Act, applicant argues
that it has demonstrated on this record that members of the
1 Application Serial No. 76225929 was filed on March 16,
2001, based upon applicant’s allegation of first use anywhere at
least as early as July 1, 1993 and use in commerce at least as
early as November 10, 1993. The mark is lined for the colors red
and green.
2 In issuing his final refusal, the Trademark Examining
Attorney continued to charge that the specimens of record fail to
show use of the mark in connection with applicant’s signs.
However, rather than viewing this as a separate requirement or
basis for refusal to register, we deem this to be part and parcel
of the refusal under Sections 1, 2 and 45 of the Act, as
discussed throughout this decision.
Serial No. 76225929
- 3 -
relevant public view the claimed mark as a source indicator
for its signs.
Applicant and the Trademark Examining Attorney have
fully briefed this case, but applicant did not request an
oral hearing before the Board.
We affirm the refusal of registration.
Based upon this entire record, it is clear that
applicant is involved in manufacturing and selling outdoor
signs directed to not-for-profit organizations – especially
targeting schools and churches. These signs have allegedly
been available in the marketplace since 1993.
The refusal to register herein is grounded in the
basic statutory definition of a “trademark.” The function
of a trademark, after all, includes a device used by a
person “to identify and distinguish his or her goods … from
those manufactured or sold by others and to indicate the
source of the goods … .” A mark is deemed to be in use on
goods “when … it is placed in any manner on the goods or
their containers or the displays associated therewith or on
the tags or labels affixed thereto… .” As argued by the
Trademark Examining Attorney, the manner of use on the
specimens must be such that potential purchasers would
readily perceive the subject matter as identifying and
distinguishing the applicant’s goods and indicating their
Serial No. 76225929
- 4 -
source, even if that source is unknown. See Section 45 of
the Trademark Act, 15 U.S.C. §1127.
In support of his refusal to register this design
under Sections 1, 2 and 45 of the Act, the Trademark
Examining Attorney argues as follows:
If a proposed mark is part of a larger thought or
is not distinguishable from other matter in the
specimens, then that word or phrase fails to
function as the source identifier of the goods,
and thus fails as a mark. [citations omitted] In
this case, the apple and the A+ design represent
decorative features which tie in with the
educational services suggested by the overall
theme of the sign.
It is common practice for an entity to employ a
design on its signage suggesting the services
provided by the entity ….
In this case, the public would simply view the
proposed mark as suggesting the educational
services referenced in the sign. There is no
apparent reason for purchasers to view the
proposed mark as a source of the sign itself,
rather than as a decorative feature of the sign ….
The commercial impression that the applicant
wishes to impart for its mark must be readily
apparent from the use of that mark. The A+ and
apple design blends in so well with the
educational matter shown on the sign that it would
be difficult to discern that the design was
supposed to constitute a trademark for [signs]…
(Trademark Examining Attorney’s appeal brief, pp. 3 – 4)
By contrast, applicant states its case as follows:
The undisputed testimony of record indicates that
the relevant public views the mark as an indicator
of source and not as simply a “tie in” with an
educational service. According to the Examining
Serial No. 76225929
- 5 -
Attorney, the testimony of record “does not
address the issue of whether the design is a
trademark and a source indicator for the goods
themselves”. See Office Action of March 14, 2003
at 2 (emphasis in original). How the Examining
Attorney reached that conclusion is unknown. Many
of the letters from purchasers of the goods
clearly make mention of: 1) the mark; 2) the
goods; and 3) Applicant. For example: “When I
see a sign with the A+ insignia, I know it is from
Signs Plus” (Raceland Lower); “I am able to
recognize signs by Signs Plus by the A+ logo that
appears on their signs.” (Ryder Elementary).
Based upon this undisputed testimony that the mark
does function as an indicator of source, Applicant
respectfully submits that the Examining Attorney’s
decision be reversed.
The Examiner’s reliance on In re Morganroth is
also not well taken. In Morganroth, the proposed
service mark was a slogan that occupied a
subordinate position in the advertising specimen.
In fact, mark was so obfuscated by the whole
advertising scene that it was “hardly likely to
make any impact, much less a significant
impression on the individual encountering the
advertisement.” Morganroth, 208 USPQ at 288. In
this case, the facts are completely different. It
is the testimony of numerous purchasers of the
goods that the mark can be seen and, in fact,
“stands out”. One reason for this is that the
mark is positioned well apart from other elements
on the sign so that mark is itself readily
distinguishable. Clearly, the mark is not part of
some imaginary “larger thought”. Accordingly,
Applicant requests that the decision of Examining
Attorney be reversed.
(Applicant’s appeal brief, p. 5)
The sole manner of use demonstrated on this record is
as a graphic design or pictorial on outdoor school signs.
Applicant’s specimens of record, along with screen prints
of several webpages from applicant’s website that were
Serial No. 76225929
- 6 -
placed into the record by the Trademark Examining Attorney,
play a critical role in our determination of registrability
herein, and so we begin our analysis with a complete review
of the ways in which applicant has used this alleged
trademark.
The specimen of record is a photograph showing an
outdoor, aluminum school sign from applicant’s “Books
Series.” According to applicant’s website, the school that
purchases a sign from this series is encouraged to utilize
the school’s own mascot or logo in a circle place holder,
or to utilize applicant’s so-called “traditional A+ apple
logo,” as shown below on applicant’s specimen of record:
Moreover, we see from applicant’s website the various
choices – i.e., other than the A+ apple design – that
schools have made for this embellishment, including
Rockvale (Tennessee) Elementary School’s rocket logo and
Serial No. 76225929
- 7 -
the Hinesville (South Carolina) Middle School’s tiger
mascot:
In the face of this showing by the Trademark Examining
Attorney, applicant argues strenuously that its targeted
customers would perceive this symbol as a source indicator
for the identified goods, namely signs.
We do not question but that applicant expected that
this design feature would distinguish its signs from
similar signs manufactured and sold by others. On the
other hand, having chosen a suggestive, informative
pictorial, and then having employed it in a context totally
consistent with its ordinary usage, applicant accepted the
risk that this prosaic design may not function as a source
indicator for its goods. See In re The Standard Oil
Company, 275 F.2d 945, 125 USPQ 227 (CCPA 1960) [GUARANTEED
STARTING for winterizing automobile engines].
Serial No. 76225929
- 8 -
The Trademark Examining Attorney’s refusal to register
herein is clearly premised on the statutory language “to
identify and distinguish his or her goods … from those
manufactured or sold by others ….” If the involved design
does not identify and distinguish applicant’s goods, then
as a matter of statutory construction, it is simply not
functioning herein as a trademark.
Accordingly, the overall thrust of the refusal to
register is that the claimed matter, in the context of
these signs, is not inherently distinctive as a source
indicator for signs. This is a question of fact determined
by looking into whether the design is a common basic
design, whether it is unusual in a particular field, and
whether it is a mere refinement of a commonly-adopted and
well-known form of ornamentation for a particular class of
goods. See Wiley v. American Greetings Corporation et al.,
226 USPQ 101 (1st Cir. 1985) [red heart affixed to left
breast of teddy bear, like ordinary geometric shape,
carries no distinctive message of origin to consumers and
hence does not serve to distinguish it from hearts on other
stuffed animals, such characteristics being commonly
adopted and well known form of ornamentation], citing to
Seabrook Foods, Inc. v. Bar-Well Foods, Ltd., 568 F.2d
1342, 1344, 196 USPQ 289, 290-291 (CCPA 1977).
Serial No. 76225929
- 9 -
Where, as here, an alleged mark serves as part of the
aesthetic ornamentation of goods, the size, location,
dominance, and significance of the alleged mark as applied
to the goods, are all factors that figure prominently in
our determination of whether the involved matter also
serves as an indication of origin. In re Astro-Gods Inc.,
223 USPQ 621 (TTAB 1984) [“ASTRO GODS design” would not be
perceived as anything other than part of the thematic whole
of the ornamentation of applicant’s T-shirts]. In order to
be protected as a valid mark, a designation must create “a
separate and distinct commercial impression, which …
performs the trademark function of identifying the source
of the goods to the customers.” In re Chemical Dynamics,
Inc., 839 F.2d 1569, 5 USPQ2d 1828 (Fed. Cir. 1988). As
argued by the Trademark Examining Attorney, a design does
not function as a trademark unless it is used in a manner
that projects to purchasers a single source of the goods.
In re Morganroth, 208 USPQ 284 (TTAB 1980).3
3 While applicant is correct that the facts in the instant
case (e.g., large, prominent design claimed as a trademark) are
quite different from the facts of Morganroth (e.g., a subordinate
slogan claimed as a service mark), the Trademark Examining
Attorney is correct in applying the teaching of Morganroth
herein, namely that the matter does not function as a mark unless
it is used in a manner that projects to purchasers a single
source of the goods.
Serial No. 76225929
- 10 -
Inasmuch as our determination herein is a question of
fact, it is critical to our analysis that the involved
goods in this application are outdoor signs. We are
constrained to establish the ordinary significance of this
design and evaluate it in the context of usage by applicant
and other sign makers. Given the simplicity, legibility
and recognition of pictures, it is undeniable that people
relate to simple images easier and faster than to words.
Hence, in the process of designing a sign to be read from
automobiles speeding by on a highway, for example, there is
no better way to attract the viewer’s attention than to add
graphic designs or pictorials. All the signs shown
graphically on applicant’s website have at least one
graphic image.
It is not unusual for outdoor signs to include
decorative imagery suggesting what the establishment is all
about. The more directly the imagery relates to the nature
of the business4, however, the less likely it is that the
imagery can function as a source indicator for the sign
itself. In order for such imagery to function as a
trademark for the sign itself, it must be readily apparent
4 For example, the design of a steer for a steak house, the
design of a hammer or wrench for a hardware store, the design of
a fish for a seafood restaurant, etc.
Serial No. 76225929
- 11 -
to a viewer that the design identifies the manufacturer of
the sign. While we are unaware of any cases dealing with
the precise issue of such informative graphics on outdoor
signs, this is analogous to reported decisions where other
ornamental matter does not inherently serve a source-
indicating function for the involved goods. See In re
David Crystal, Inc., 296 F.2d 771, 132 USPQ 1 (CCPA 1961)
[red and blue colored bands on men’s white, ribbed socks
cannot support exclusive right to use such bands]; In re
Petersen Manufacturing Co., 2 USPQ2d 2032 (TTAB 1987)
[designs on the rear panel of container for hand tool are
not distinctive]; and In re The Original Red Plate Co., 223
USPQ 836 (TTAB 1984) [While the phrase “You Are Special
Today” was used ornamentally by applicant on 500,000
ceramic plates, applicant failed to meet its burden of
showing that the phrase would be regarded by the purchasing
public as an indication of source].
In this regard, we note that on the “Books Series”
signs, the A+ apple design, like the images of the spines
of a “Math,” “Writing” and “Reading” book, suggests a
school or other educational activities.
The current Trademark Examining Attorney cites to
cases decided by this Board and our primary reviewing Court
where slogans – often due to the nature of the wording or
Serial No. 76225929
- 12 -
the specific manner in which the words are used – were
found not to be service marks. As was the case in each of
these decisions, it is most appropriate herein, given the
circumstances of the instant case, to raise the question of
whether there is any source-indicating association or nexus
between the involved mark and applicant’s signs.
In the slogan cases cited by the Trademark Examining
Attorney, the real issue is whether or not the slogan or
other designation would be perceived as a mark when
encountered by consumers on a regular basis. On occasion,
the outcome turns on whether the matter has the requisite
degree of cleverness or ingenuity that might cause
prospective consumers to see the involved slogan or design
as having source-indicating significance.
In this context, we conclude that apples and the A+
designation are not uncommon as symbols for educational
services. The Trademark Examining Attorney included
several third-party registrations to show that the apple
design (e.g., “an apple for the teacher”) is associated
with educational services:
Serial No. 76225929
- 13 -
5 6
As to the immediate connotation for the designation
“A+” on a school sign, we take judicial notice of the fact
that “A+” tends to reflect the highest grade a student can
earn in school.7 With a national focus on academic
excellence, this designation would appear to be an
important component of the way primary and secondary
schools would like to portray their educational services.
See In re J. Kinderman & Sons Inc., 46 USPQ2d 1253 (TTAB
1998) [configuration of container for Christmas decorations
that resembles wrapped Christmas gift are not inherently
distinctive and hence, prospective purchasers would not
regard these designs as trademarks for applicant’s goods,
5 Reg. No. 1302543 issued on October 30, 1984, Section 8
affidavit accepted.
6 Reg. No. 1808041 issued on November 30, 1993, Section 8
affidavit accepted, Section 15 affidavit acknowledged; renewed.
7 a: … 5a. a grade assigned by a teacher or examiner rating
a student’s work as excellent, best, first or superior in quality
… Webster’s Third New
International Dictionary of the English Language Unabridged,
1993.
plus: … 3a. falling high in the range (as of quality or
size) specified – usu. used postpositively
… Webster’s Third New International Dictionary of the
English Language Unabridged, 1993.
Serial No. 76225929
- 14 -
despite the fact there is no evidence in the record that
anyone is using identical designs]; In re Tilcon Warren,
Inc., 221 USPQ 86 (TTAB 1984) [WATCH THAT CHILD on bumper
stickers on large construction vehicles does not function
as a trademark for construction materials hauled in the
vehicles]; and In re Schwauss, 217 USPQ 361 (TTAB 1983)
[the word “Fragile” shown in special form and used on
labels and bumper stickers is a message or information
statement and does not function as a trademark].
While the Trademark Examining Attorney has not
produced examples of where this exact combination is
employed by others as a visual design for school signs,
neither does it strike us as anything more than merely a
possible refinement of ornamental symbols that would be
employed on school signs. See Goodyear Tire and Rubber Co.
v. Interco Tire Corp., 49 USPQ2d 1705, 1719-21 (TTAB 1998)
[applicant did not show that the difference in appearance
of its tire tread design is source-indicating, tire tread
design being a mere refinement of common basic designs;
purchasers of applicant’s goods would regard pictures of
the goods in ads as nothing more than illustrations of the
product being offered for sale].
We agree that, as argued by the Trademark Examining
Attorney, the A+ apple design is not used on the specimens
Serial No. 76225929
- 15 -
in a manner calculated to project to prospective purchasers
of school signs an indication of the source or origin of
such goods. Instead, due to its manner of use on the
signs, the A+ apple design merely informs potential
purchasers the establishment is a school, given the common
practice, to which the purchasing public is accustomed, of
seeing pictorial images on outdoor signs. Consequently, as
used on the specimens, the A+ apple design does not
function as a trademark for applicant's goods.
The Trademark Examining Attorney has also correctly
raised the specter of competitive harm to others growing
out of the Office’s blithely issuing such a registration:
…[A]pplicant’s registration of the A+ and
apple design would harm others in the
educational field who might wish to employ
this common apple and A+ design to suggest
their educational services on their signs….
(Trademark Examining Attorney’s appeal brief, pp. 4 – 5).
To the extent that the symbol of an apple suggests schools
and the A+ designation suggests academic excellence,
issuing such a registration could well create a chilling
effect on the use of such informative images on outdoor
signs for schools nationwide.
That apples are logically connected to schools is
supported by applicant’s own webpages. Specifically,
applicant uses the generic picture of an apple in a circle
Serial No. 76225929
- 16 -
to represent its line of school signs – much as it uses the
cross in a circle to represent its line of church signs:
Moreover, the position taken by the Trademark
Examining Attorney in analyzing the involved A+ apple
design is directly supported by the analogous way in which
applicant markets its church signs. Applicant argues in
its reply brief that the Trademark Examining Attorney’s
raising of other school images (e.g., schools’ mascots or
other logos) and various religious symbols is irrelevant
herein. However, we agree with the Trademark Examining
Attorney that applicant’s use of the graphic of a cross for
church signs helps to clarify the context in which both of
these symbols or pictorials are used. Given the exact
parallel usage by applicant on its website, this is most
relevant to the impressions of consumers exposed to these
signs. The embellishing designs for churches actually
portrayed by applicant include a cross against the sun logo
of the Immanuel Baptist Church, the well-known flames of
the Holy Spirit with the cross logo of the United Methodist
Church, and the dove of the New Life Church:
Serial No. 76225929
- 17 -
We find that it would seem most preposterous to argue that
a cross or a Star of David, when used on a sign for a house
of worship, would function as a source indicator for the
sign-maker.
While applicant argues strenuously that its targeted
customers would perceive the involved symbol as a source
indicator for its signs, we disagree. Nowhere does the
appearance of this image strike us as a trademark for
signs. The Trademark Examining Attorney has made the
argument most forcefully that this record reflects a total
absence of either a direct or an indirect association or
nexus between the alleged mark and applicant’s signs – any
more than could a school’s mascot or a religious symbol be
a trademark for the signs themselves.
In short, we conclude, on this record, that applicant
fully intended for this A+ apple image to function as its
Serial No. 76225929
- 18 -
trademark for school signs. However, we also agree with
the Trademark Examining Attorney that use of this
particular symbol on applicant’s signs, in and of itself,
is insufficient to demonstrate that this design would be
perceived as a trademark to identify applicant’s signs and
distinguish them from the outdoor signs of others.
Instead, we believe purchasers would view this familiar and
readily understood symbol, in all the uses illustrated in
the record, as no more than a graphic embellishment on
outdoor school signs, and possibly as an indication of the
school’s academic excellence. Given the absence in this
record of any nexus between the A+ apple design and
applicant’s signs, we affirm the refusal of the Trademark
Examining Attorney to registration of this mark for
applicant’s signs.
Apart from the specimens of record, we see nothing in
applicant’s webpages that would support a finding that
consumers would view this design as applicant’s trademark.
Rather, the photographs of the design on the school signs
would likely be perceived as nothing more than a photograph
of applicant’s goods.8
8 Obviously, a manufacturer or merchant may have multiple
marks for the same goods or services. However, it is instructive
to note how applicant uses its primary source indicator
throughout its website. A quick review shows that applicant uses
another prominent designation in the manner of a service mark and
Serial No. 76225929
- 19 -
As noted earlier in this opinion, applicant does not
admit non-distinctiveness for this matter, and never
purports to make an explicit showing of acquired
distinctiveness. Nonetheless, whether one looks to the
explicit terms of Section 2(f) of the Lanham Act, or to a
similar showing of acquired distinctiveness in a parallel
fashion,9 in the event that it was applicant’s intention to
submit the evidence that it did in order to show acquired
distinctiveness, we turn to a discussion of applicant’s
showing of consumer recognition of its A+ apple design as
an indicator of a single source for these signs. See In re
Owens-Corning Fiberglas Corporation, 774 F.2d 1116, 227
USPQ 417 (Fed. Cir. 1985).
Analogizing to the possible registrability of merely
descriptive terms which may nevertheless acquire
trademark repeatedly and prominently, i.e., its SIGNS PLUS name,
alone and in conjunction with its corporate logo:
On these webpages, this designation will immediately be perceived
as the sole indicator of origin for applicant’s goods and
services. Moreover, applying all the criteria discussed above
(e.g., the size, location, dominance and significance of the
matter as applied to the goods), it contrasts nicely with the
design that is the subject of this application. This latter
design, especially if placed in a discrete manner somewhere on
the school signs, suffers from none of the infirmities discussed
above, but rather, inherently projects to purchasers a single
source of the goods.
9 See, e.g., discussion of secondary source for ornamental
matter used on collateral goods, In re Paramount Pictures
Corporation, 213 USPQ 1111, 1114 (TTAB 1982) viz., footnote 8 and
surrounding text.
Serial No. 76225929
- 20 -
distinctiveness, we note that the lesser the degree of
inherent distinctiveness, the heavier the burden to prove it
has acquired distinctiveness. Cf. Yamaha International
Corp. v. Hoshino Gakki Co. Ltd., 6 USPQ2d 1008. See also In
re Bongrain International (American) Corp., 894 F.2d 1316,
13 USPQ2d 1727, 1728 (Fed. Cir. 1990) at n. 4. In this
regard, the practices in the trade may be relevant in
assessing applicant’s burden of proving that its mark has
become distinctive. Typically, more evidence is required
if the proposed mark is a type of ornamental matter
frequently used in that industry so that consumers may be
less apt to perceive source-indicating significance from
these uses. In view of the fairly ordinary nature of this
graphic device used by applicant, we believe that a
commensurately greater amount of evidence would be required
to establish that this particular design has acquired
distinctiveness for applicant’s signs. See In re
Anton/Bauer Inc., 7 USPQ2d 1380, 1383 (TTAB 1988) [The
Board found no evidence of promotion of a parallelogram
used as a background design in a way that would set it
apart from the word mark for which it served as a
background].
In its request for reconsideration dated January 30,
2003, applicant submitted a declaration of applicant’s
Serial No. 76225929
- 21 -
president, Robert W. Klinger, attesting to the
distinctiveness of the A+ apple design.
However, the major deficiency in applicant’s responses
to the refusal to register, including Mr. Klinger’s
declaration, lies in the absence of any evidence of
applicant’s promotion of the design as a trademark for its
signs. Significantly, the declaration from Mr. Klinger
contains no evidence of any advertising activity at all,
much less advertising activity that shows how the applicant
promotes or advertises the A+ apple design apart from the
other ornamental or decorative features on the sign. The
record is otherwise devoid of any supporting examples of
how applicant advertises and promotes its A+ apple design
as a trademark for its signs.10
Furthermore, there is no evidence in Mr. Klinger’s
declaration as to the extent of applicant’s sales of goods
under the alleged mark, either in terms of dollars or
units.
Mr. Klinger’s declaration states that in response to
the Office’s refusal to register this mark, applicant
10 As noted earlier, the only evidence in the record
demonstrating the manner of applicant’s use of the designation is
limited to the photograph submitted with the application and the
pictures on applicant’s webpages. However, we conclude that
these photographs are likely to be perceived by purchasers merely
as informational depictions of the ornamental and/or functional
Serial No. 76225929
- 22 -
“solicited comments from past customers concerning the
distinctive nature of the mark.” Applicant attached copies
of letters written to applicant from nine different
elementary schools that had in the past purchased one of
applicant’s school signs. Applicant received these nine
letters during a six-week period, between September 30 and
November 12, 2002. These terse letters contained the
following excerpted statements:
… [W]e recognize the “A+” signs as coming
from Signs Plus… . (Lake County, MT)
… [W]e are very pleased with the trademark
A+ on the sign and the unique design called
Books II. It is very impressive and when we
see it11 on other signs we recognize the fact
that Signs Plus has sold another sign in our
community. (Colorado Springs, CO)
… Each time the students and staff at
Kieberger Elementary see the red apple with
the A+ we will think of Signs Plus and you
[Rita]. (Aransas Pass, TX)
… When I see a sign with the A+ insignia, I
know it is from Sign (sic) Plus! (Raceland,
LO)
… The A+ design is unique to Signs Plus; we
certainly recognize signs in our area with
the A+ design as a “Signs Plus” product.
(Post Falls, ID)
features of applicant’s signs, of which the A+ apple design is
one ornamental component.
11 We note that this customer expressly combined the
“trademark A+ on the sign” with “the unique design called Books
II” and proceeds to discuss both as comprising a single, source-
indicating feature.
Serial No. 76225929
- 23 -
The A+ symbol on the Sign (sic) Plus Signs
stands our as a symbol to identify the Sign
(sic) Plus Signs Company. It is truely
(sic) a trademark for the sign. (Ezel, KY)
… The A+ logo on the sign is unique to Signs
Plus signs. I am able to recognize signs by
Signs Plus by the A+ logo that appears on
their signs. (Miami, FL)
It is obvious that when we see the A+ logo
on a sign at other schools or advertisers,
we know that it is a Signs plus sign.
(Vidor, TX)
We find that these statements – totally conclusory in
nature – do not suffice to prove that applicant’s design
has acquired distinctiveness as a source-indicating
trademark. The existence of a relatively small number of
people who associate the alleged mark with applicant is
simply insufficient for us to find that the term functions
as a trademark for applicant’s goods. See In re Dimitri's
Inc., 9 USPQ2d 1666 (TTAB 1988). The probative value of
the statements is limited by the fact that they are
unsworn. See Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d
863, 31 USPQ2d 1481 (8th Cir. 1994); and In re Flex-O-Glass,
Inc., 194 USPQ 203 (TTAB 1977). Moreover, applicant has
not shared with us the circumstances under which the
letters were solicited (i.e., the exact wording of the
solicitation), thereby limiting the statements’ probative
value. Judging by the uniformity of the letters, we
Serial No. 76225929
- 24 -
suspect that purchasers’ recognition may well have been
guided as much by this very request as any earlier
association on the part of the purchasers between the
involved image and applicant. Clearly, there is nothing
else in the record to show how these purchasers would have
come to perceive this graphic design as a mark.
Finally, other than applicant’s solicitation of
letters related to the prosecution of this application, we
are not persuaded, based on this record, that applicant has
done anything that has resulted in consumer recognition of
this design as a source-indicating trademark. See In re
Kwik Lok Corp., 217 USPQ 1245 (TTAB 1983).
Hence, in view of the absence of evidence as to the
extent of applicant’s sales and advertising, the absence of
evidence showing that applicant has promoted the design,
per se, as a trademark, and the absence of evidence showing
that the relevant consumers generally would look to such
graphic images (i.e., images so readily associated with the
enterprises purchasing the sign) as source-indicators for
signs, the underlying factual basis for the conclusory
opinions set forth in the nine purchasers’ statements is
not apparent, and the probative value of these statements
is lessened accordingly.
Serial No. 76225929
- 25 -
Hence, we find that the evidence of record concerning
applicant’s use of the A+ apple design is insufficient to
establish that this pictorial has acquired distinctiveness,
and we reject applicant’s claim of entitlement to
registration on the Principal Register. Therefore, we
affirm the Trademark Examining Attorney’s refusal to
register on the ground of non-distinctiveness. See
Trademark Act Sections 1, 2, and 45.
Decision: The refusal to register is affirmed.
