Think, LLC

Trademark Trial and Appeal BoardNov 3, 2011

No. 77774652re (T.T.A.B. Nov. 3, 2011)

Mailed: November 3, 2011 Bucher UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Think, LLC ________ Serial No. 77774652 _______ Request for Reconsideration _______ Gregory C. Smith of Garvey Smith Nehrbass & North, LLC. Vivian Micznik First, Trademark Examining Attorney, Law Office 114 (K. Margaret Le, Managing Attorney). _______ Before Bucher, Mermelstein and Shaw, Administrative Trademark Judges. Opinion by Bucher, Administrative Trademark Judge: The Board, in a final decision dated September 23, 2011, affirmed the refusal to register applicant’s mark, TheMenuMag, under Section 2(e)(1) of the Trademark Act. Applicant filed a timely request for reconsideration (see Trademark Rule 2.144, 37 C.F.R. § 2.144), based upon applicant’s assertion that the Board improperly dissected the mark into its individual components in determining that the mark as a whole is merely descriptive. The premise underlying a request for reconsideration is that, based upon the evidence of record and the applicable legal authorities, the Board erred in reaching the decision THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77774652 - 2 - it issued. It is not appropriate for applicant to reargue the various points made during prosecution of the application and presented in applicant’s appeal brief on the case. Furthermore, to the extent that applicant’s request for reconsideration in this case (e.g., unnumbered pages 4– 7) places great weight on an argument of acquired distinctiveness, we note that an allegation under Section 2(f) of the Trademark Act was never made during the prosecution of this application. We earlier found that the individual terms “The,” “Menu” and “Mag” have descriptive significance as used in connection with the identified magazines. We found that no hesitation or thought was needed in appreciating the meaning of these three terms. Next, we determined that the combination of these descriptive terms failed to evoke a new and unique commercial impression. Rather, inasmuch as each component retained its merely descriptive significance in relation to the goods, then the resulting combination was also merely descriptive. See In re Tower Tech, Inc., 64 USPQ2d 1314 (TTAB 2002) (SMARTTOWER held merely descriptive of commercial and industrial cooling towers). While it is true that we must consider the mark in its entirety, it “is perfectly acceptable to separate a compound mark and discuss the implications of each part thereof … provided that the ultimate determination is made on the Serial No. 77774652 - 3 - basis of the mark in its entirety.” In re Hester Industries, Inc., 230 USPQ 797, 798 n.5 (TTAB 1986). In this case, we found that the record establishes that the designation as a whole, TheMenuMag, is descriptive of the identified magazines. When this mark is viewed in connection with the listed goods, there is nothing in the mark which is incongruous, nor is there anything which would require the gathering of further information, in order for the merely descriptive significance thereof to be readily apparent to prospective purchasers of the goods. See In re Abcor Development Corp., Inc., 588 F.2d 811, 200 USPQ 215 (CCPA 1978) (Rich, J., concurring) (GASBADGE described as a shortening of the name “gas monitoring badge”); and Cummins Engine Co., Inc. v. Continental Motors Corp., 359 F.2d 892, 149 USPQ 559 (CCPA 1966) (TUBODIESEL held generically descriptive of engines having exhaust driven turbine superchargers). That is, the combination of the terms “The,” “Menu” and “Mag” fails to create a new and distinct commercial impression. Indeed, as shown by evidence in the record, the combination “Menu Magazine” is a quite logical designation used by various online publishers to denote a periodic magazine having menus of local restaurants. Our earlier decision stated as follows: Serial No. 77774652 - 4 - We find that when these words are combined, they are not incongruous, and applicant has failed to suggest any non-descriptive meaning that prospective consumers might ascribe to the proposed mark other than their common dictionary meanings. In short, prospective diners (in the panhandle of Florida or elsewhere) will understand immediately – without cogitation, study or a sense of incongruity – that TheMenuMag conveys information about a magazine having restaurant menus. Finally, to the extent applicant argues that TheMenuMag conveys a different impression than the sum of its constituent parts (“the menu mag”) because applicant has removed the spaces between the words, we disagree. “It is almost too well established to cite cases for the proposition that an otherwise merely descriptive term is not made any less so by merely omitting spaces between the words ….” Minn. Mining & Mfg. Co. v. Addressograph- Multigraph Corp., 155 USPQ 470, 472 (TTAB 1967) (citations omitted). The separate words comprising applicant’s mark are clearly recognizable and retain their individual meanings – a point emphasized in this case by applicant’s use of initial upper-case letters for each of the components. Decision: Accordingly, the final decision dated September 23, 2011, stands. Applicant’s request for reconsideration is hereby denied.