4YourParty.com, LLC

Trademark Trial and Appeal Board

Mar 15, 2002

No. 75932704 (T.T.A.B. Mar. 15, 2002)

3/15/02 Paper No. 12
BAC

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re 4YourParty.com, LLC
________

Serial No. 75/932,704
_______

Neal E. Friedman of Davis & Bujold, P.L.L.C. for
4YourParty.com, LLC.

Gene V.J. Maciol, Trademark Examining Attorney, Law Office
109 (Ronald Sussman, Managing Attorney).
_______

Before Chapman, Holtzman and Rogers, Administrative
Trademark Judges.

Opinion by Chapman, Administrative Trademark Judge:
On March 1, 2000, 4YourParty.com, LLC (a New Hampshire
limited liability company) filed an application to register
on the Principal Register the mark 4YOURPARTY.COM for
“distributorship services in the field of party and
catering supplies” in International Class 35. The
application is based on applicant’s claimed date of first
use and first use in commerce of September 24, 1999.
Citing Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), the Examining Attorney refused registration on
the ground that when applicant’s asserted mark is used in
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/932704
2
connection with the identified services, it is merely
descriptive thereof.
When the refusal was made final, applicant appealed,
and both applicant and the Examining Attorney have filed
briefs. Applicant did not request an oral hearing.
The Examining Attorney’s position essentially is that
applicant’s proposed mark 4YOURPARTY.COM is the phonetic
equivalent of FOR YOUR PARTY.COM; that the purchasing
public is frequently exposed to the number “4” used in
place of the preposition “for” and would so perceive the
number in this case; that the proposed mark is merely
descriptive of the purpose and use of applicant’s
distributorship services because it immediately informs
consumers that applicant offers an on-line marketplace for
all their party supplies; and that the mark is
unregistrable on the Principal Register absent a showing of
acquired distinctiveness. The Examining Attorney points
out that “.com” is a generic designation identifying a top
level domain (TLD) location information.
Applicant acknowledges that “.com” is a domain name
identifier and is without any inherent trademark
significance. (Brief, p. 3, footnote 4.) However,
applicant contends that it takes a multi-stage reasoning
process to interpret the mark, in its entirety, as merely
Ser. No. 75/932704
3
descriptive of a feature or purpose of applicant’s
services; that the number “4” and the words “YourParty”
will be separately comprehended by consumers; that the
first interpretation by consumers of the element “4” should
necessarily be that of the number “four” and even if
consumers transpose the number to mean “for,” it
nonetheless remains first and foremost a number not a word;
that even if “For Your Party” arguably describes party
goods, applicant seeks to register the mark only for
services; and that applicant’s mark has non-descriptive
meanings such as a list of items including “Item No.
4...YOUR PARTY,” and the word “your” points suggestively to
the consumer. Applicant also specifically contends that
the Nexis and Internet evidence made of record by the
Examining Attorney consists of extremely small samples from
the extraordinarily large numbers of search results; and
that the evidence is not specifically directed to or
relevant to applicant’s distributorship services.
The test for determining whether a term or phrase is
merely descriptive under Section 2(e)(1) of the Trademark
Act is whether the term immediately conveys information
concerning a significant quality, characteristic, function,
ingredient, attribute or feature of the product or service
in connection with which it is used. See In re Abcor
Ser. No. 75/932704
4
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978);
In re Eden Foods Inc., 24 USPQ2d 1757 (TTAB 1992); and In
re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). The
determination of mere descriptiveness must be made, not in
the abstract, but rather 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 impact that it is
likely to make on the average purchaser of such goods or
services. See In re Consolidated Cigar Co., 35 USPQ2d 1290
(TTAB 1995); and In re Pennzoil Products Co., 20 USPQ2d
1753 (TTAB 1991). That is, the question is not whether
someone presented with only the term or phrase 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 term or phrase to convey information
about them. See In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990); and In re American
Greetings Corp., 226 USPQ 365 (TTAB 1985).
The Examining Attorney submitted photocopies of
excerpts of stories retrieved from the Nexis database, as
well as search results from the Internet to show that the
number “4” is commonly used to mean “for” and the public is
aware of the same. Both applicant and the Examining
Ser. No. 75/932704
5
Attorney submitted photocopies of third-party registrations
to show, respectively, either that the element “4” carried
the mark or that “4 __” or “for your __” was disclaimed in
the mark.
We agree with the Examining Attorney that
4YOURPARTY.COM immediately and directly conveys information
about the nature and purpose of applicant’s
“distributorship services in the field of party and
catering supplies.” First, the Examining Attorney’s
evidence is sufficient to establish that “4” is commonly
used to mean “for,” and would be so understood by the
purchasing public. In this regard, we do not agree with
applicant that the Examining Attorney was required to
submit a much larger sample and verify that it was a
representative sample. This is because the Examining
Attorney was offering the evidence not to establish that
the mark as a whole is merely descriptive, but for a more
limited purpose, namely, that the public understands the
number “4” is commonly used to mean the preposition “for.”
The Examining Attorney searched “4 your” on the
Internet and submitted the first 40 “hits” out of
6,910,000; and the Examining Attorney submitted 8 of 4239
stories retrieved from a search of “4 your” on Nexis.
Neither the Board (nor applicant) would want a true
Ser. No. 75/932704
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representative sample of almost 7 million hits on the
Internet or over 4200 stories from Nexis. Such a
voluminous amount of material would be unmanageable and
unnecessary for the purpose of determining the
registrability of marks in Board proceedings. Implicit in
applicant’s criticism of the record is the conclusion that
the references submitted by the Examining Attorney are the
only ones which support his position, and that the other
references would support applicant’s position. However, we
note that the Examining Attorney simply submitted the first
40 hits of the nearly 7 million Internet hits, rather than
culling only for hits that favor the Examining Attorney’s
position. In this context, the Board (and applicant) may
extrapolate the general meaning of a term from a minor
sample.
As noted, the determination of mere descriptiveness
must be made in relation to the identified services, and
the context in which the designation is being used. The
following wording appears on applicant’s specimen of
record: “The Premier On-Line Source For All Your
Catering/Party Needs” and “The Premier On-Line Marketplace
for all Catering, Party, and Wedding Reception Supplies.”
The designation “4YOURPARTY” would be readily understood by
the purchasing public as “FOR YOUR PARTY.” While “4” is a
Ser. No. 75/932704
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number, on this record (including applicant’s specimen), it
is clear that the designation “4” is used to mean the
preposition “for.”
A descriptive term or phrase does not have to provide
information regarding every aspect of an applicant’s goods
or services. See In re Opryland USA Inc., 1 USPQ2d 1409
(TTAB 1986); and In re The Weather Channel, Inc., 229 USPQ
854 (TTAB 1985). It is true that applicant has applied for
registration of a service mark, but it is also true that
applicant’s service is selling party supplies and
equipment. The specimen of record states: “Specializing
In: Upscale Dinnerware ... Dinnerware/Plates/Bowls ...
Drinkware ... Plastic Cutlery ... Chafing
Dishes/Pans/Canned Heat ... Tablecovers/Round/Oblong ...
Supplies/Equipment.” Moreover, “party (and catering)
supplies” appears in applicant’s identification of
services. There is simply no question that one of the
central features of applicant’s distributorship services is
the sale of all types of party supplies and equipment.
Hence, we conclude that the purchasing public would
recognize and attribute the meaning “for your party” to the
applied-for mark, when used in connection with applicant’s
services. That is, the designation 4YOURPARTY.COM, when
considered in its entirety, will readily be understood by
Ser. No. 75/932704
8
consumers to refer to applicant’s services of providing all
types of party supplies and equipment.
Applicant does not dispute that the “.com” portion of
applicant’s applied-for mark is merely part of a domain
address, and lacks trademark significance. See 555-
1212.com, Inc. v. Communication House International, Inc.,
157 F.Supp. 2d 1084, 59 USPQ2d 1453 (N.D.CA. 2001); In re
Page, 51 USPQ2d 1660 (TTAB 1999); and 1 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition, §7:17.1 (4th
ed. 2000).
In this application, we find that the designation,
4YOURPARTY.COM, in relation to applicant’s identified
services does not evoke a unique commercial impression, nor
does this combination of the elements give the applied-for
mark, considered as a whole, an incongruous meaning in
relation to applicant’s services such that the elements
lose their descriptive significance in the combined
expression. Rather, applicant’s mark as a whole, when used
in connection with applicant’s identified services,
immediately describes, without need for conjecture or
speculation, a significant feature of applicant’s services,
as discussed above. See In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987); In re Omaha National
Ser. No. 75/932704
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Corporation, 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987);
and In re Time Solutions, Inc., 33 USPQ2d 1156 (TTAB 1994).
Decision: The refusal to register the proposed mark
as merely descriptive under Section 2(e)(1) is affirmed.