Vendor Development Group, Inc.

Trademark Trial and Appeal BoardJun 15, 2012

No. 77902174 (T.T.A.B. Jun. 15, 2012)

Mailed: June 15, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Vendor Development Group, Inc. ________ Serial No. 77902174 _______ Conrad A. Hansen of Moore, Hansen & Sumner for Vendor Development Group, Inc. Linda Orndorff, Trademark Examining Attorney, Law Office 111 (Robert L. Lorenzo, Managing Attorney). _______ Before Quinn, Holtzman, and Wolfson, Administrative Trademark Judges. Opinion by Wolfson, Administrative Trademark Judge: Vendor Development Group, Inc. filed, on December 29, 2009, an application to register the mark BACKYARD CLASSIC (in standard character format) for “furniture, namely, patio furniture” in International Class 20, based on applicant’s bona fide intent to use the mark in commerce. Applicant has disclaimed “CLASSIC” apart from the mark as shown. The trademark examining attorney refused registration under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that applicant’s mark, when used THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77902174 - 2 - in connection with applicant’s goods, is merely descriptive thereof. When the refusal was made final, applicant appealed. The appeal has been fully briefed. We affirm. I. Discussion A mark is deemed to be merely descriptive of goods or services, within the meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828 (Fed. Cir. 2007); and In re Abcor Development, 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). A mark need not immediately convey an idea of each and every specific feature of the applicant’s goods or services in order to be considered merely descriptive; rather, it is sufficient that the mark describes one significant attribute, function or property of the goods or services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a mark is merely descriptive is determined not in the abstract, but in relation to the goods or services for which registration is sought, the context in which it is being used on or in connection with the goods or services, and the possible significance that the mark would have to the Serial No. 77902174 - 3 - average purchaser of the goods or services because of the manner of its use. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is settled that “[t]he question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them.” In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002). The trademark examining attorney asserts that applicant’s mark is merely descriptive of a feature of applicant’s goods, “namely, that the furniture is classically styled backyard furniture.”1 The record includes a dictionary definition of the term CLASSIC as “formal, refined, and restrained in style,”2 and provides the following as an example of its usage: “She prefers classic furniture designs.”3 Applicant does not dispute the trademark examining attorney’s contention that the term CLASSIC is descriptive of the goods, and has submitted a disclaimer of “CLASSIC” that has been entered in the record. On the other hand, applicant does dispute the trademark examining attorney’s contention that the term BACKYARD is 1 Office action dated March 30, 2010, p. 2 (unnumbered). 2 Cited at http://education.yahoo.com/reference/dictionary/entry/classic, attached as an exhibit to Office action dated March 30, 2010. 3 Cited at www.merriam-webster.com, attached as an exhibit to final Office action dated October 28, 2010. Serial No. 77902174 - 4 - descriptive of patio furniture, and argues that therefore, the mark is not merely descriptive as a whole. The trademark examining attorney relies on a dictionary definition of the term “backyard” as meaning “an area at the rear of a house.”4 Applicant points out a second meaning for the term, namely, “a nearby area : NEIGHBORHOOD” referenced at the same dictionary citation, and argues that neither of these definitions conveys information about the goods, because “[a]ny number of different products acquired by an average purchaser can have various levels of association with a ‘backyard’ or with ‘a nearby area.’”5 However, the fact that other goods can be associated with a backyard does not lessen the immediate understanding that the mark BACKYARD CLASSIC conveys when used in connection with patio furniture, i.e., classically styled patio furniture that can be set up in a backyard.6 We note the trademark examining attorney has submitted a definition from an online dictionary that defines “patio” as: “a flat area 4 Cited at www.merriam-webster.com, attached as an exhibit to Office action dated March 30, 2010. 5 Applicant’s Brief, p. 4. 6 We note applicant’s argument that “patio furniture” describes a style of furniture, rather than furniture that can be set up on a patio. There is nothing in the record to suggest either interpretation is correct, or that they are mutually exclusive. However, even if “patio furniture” refers to a style of furniture only, it does not follow that its utility would never include being located in one’s backyard. Thus, the mark would still describe one of the common locations for applicant’s furniture. Serial No. 77902174 - 5 - covered with stone, brick, etc. at the back of a house, where people can sit outside.”7 Thus, the term “backyard” aptly describes one of the possible locations for applicant’s furniture. The trademark examining attorney has also submitted several excerpts from the Internet that show patio furniture is often arranged in one’s backyard. For example: “Classic Patio Furniture dresses up any backyard patio, deck, garden, or other outdoor living spaces….”8 “Decorate your patio with patio furniture cushions and enjoy your backyard with fire pits and fire places.”9 “Make your backyard an enjoyable place to be with back porch furniture.”10 In addition, the trademark examining attorney submitted copies of three active, use-based, third-party registrations for marks containing the term “backyard” for patio furniture wherein the term “backyard” has been disclaimed: 7 www.macmillandictionary.com, accessed October 27, 2010. 8 www.backyardcity.com/patio-furniture/Classic-Wrought-Iron- Furniture.htm, accessed March 26, 2010. 9 www.cozydays.com. Snapshot of the page as it appeared on March 17, 2010 from “Google’s cache,” accessed March 26, 2010. 10 www.totalbackyard.com. Snapshot of the page as it appeared on October 19, 2010 from “Google’s cache,” accessed October 27, 2010. Applicant argues that the trademark examining attorney mistakenly asserts that applicant’s furniture is “backyard furniture” rather than “patio furniture” and mistakenly concludes “that patios are backyards.” Appeal Brief, p. 6. The record shows that it is not unlikely for a prospective consumer to conclude that patios are often located in one’s backyard and that applicant’s goods are for use in one’s backyard; thus, “backyard furniture” could be an apt description of the goods. Serial No. 77902174 - 6 - BACKYARD CREATIONS for “patio furniture”;11 BACKYARD ACCENTS for “patio furniture”;12 and BACKYARD EXPRESSIONS for “patio furniture sets, consisting of chairs, tables and gliders.”13 Although small in number, these third-party registrations are illustrative of the fact that the Office recognizes the term “backyard” as merely descriptive when used in connection with patio furniture. See In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006)(Third- party registrations that include disclaimers of a term can show that a term has been regarded as merely descriptive). The third-party registrations submitted by applicant of marks containing “backyard” where no disclaimer was required are not on point; they cover retail store services, where, in the context of the marks as a whole, the term “backyard” was arbitrary, or at worst suggestive. (e.g., Reg. No. 2949285 for AMERICAN BACKYARD for “retail store services featuring furniture and accessories.”).14 In light of this evidence, we find the primary significance of the term “backyard” to be merely descriptive when used in connection with patio furniture. 11 Reg. No. 3105129; issued June 13, 2006. 12 Reg. No. 3234667; issued April 24, 2007. 13 Reg. No. 3304202; issued October 2, 2007. 14 We have taken into account the one registration submitted by applicant that covers goods, Reg. No. 3061767 for the mark BACKYARD AND BEYOND… for “garden gifts and outdoor furniture.” Serial No. 77902174 - 7 - On the other hand, we hasten to point out that the mark is BACKYARD CLASSIC, and it is improper to dissect the mark into its constituent parts without considering its commercial impression as a whole. In this regard, applicant argues that the mark has “multiple possible alternative meanings:”15 [A] consumer may think that the term “BACKYARD CLASSIC” on a product label indicates simply that the product was made locally, … or that the product was made by home based craftsmen in their backyards or that the product was made by a business whose name includes the term “Backyard.”16 There is no evidence in the record to support any of these claimed associations. Moreover, that a term has multiple meanings is relevant only if at least one of those meanings is, when considered in relation to the goods, incongruous, non-descriptive or arbitrary. As shown, the information immediately conveyed by the mark, in relation to the identified goods, is that of patio furniture designed in a classic style for use in one’s backyard. Applicant cites to a dictionary definition of the word “particularity”17 to show that the term BACKYARD “does not convey any feature of patio furniture with a degree of 15 Applicant’s Brief, p. 4. 16 Id. 17 Merriam-Webster’s Collegiate Dictionary, Tenth Edition (2000), attached as an exhibit to Applicant’s Request for Reconsideration. Serial No. 77902174 - 8 - particularity.”18 The difficulty with this argument is that the mark is not “backyard” per se, but BACKYARD CLASSICS, which does describe the goods with sufficient particularity to enable a purchaser to immediately form an impression as to a feature of the goods. II. Conclusion We have carefully considered the entire record, including all arguments and the evidence submitted. We conclude that the term BACKYARD CLASSIC as a whole is merely descriptive of applicant’s goods, “furniture, namely, patio furniture.” Decision: The refusal to register under Trademark Act § 2(e)(1) is affirmed. 18 Appeal Brief, p. 5.