Aero Industries, Inc.

Trademark Trial and Appeal Board

May 9, 2007

No. 78374039 (T.T.A.B. May. 9, 2007)

Mailed:
May 9, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re Aero Industries, Inc.
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Serial No. 78374039
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Michael D. Beck of Maginot, Moore & Beck LLP for Aero
Industries, Inc.

Allison P. Schrody, Trademark Examining Attorney, Law
Office 115 (Tomas V. Vlcek, Managing Attorney).
_______

Before Grendel, Bergsman and Wellington, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Aero Industries, Inc. filed an application for the
mark THE LID, in standard character format, for what has
been ultimately identified as “mechanically-operated
unfitted flexible covers and tarping systems, namely, flip
tarp systems, primarily comprised of flexible covers,
tarpaulins and drive mechanisms for cargo and refuse
trailers and semi-trailers.”1 Registration was refused on

1 Application Serial No. 78374039, filed February 25, 2004.
Applicant claimed September 15, 2003 as its dates of first use
anywhere and first use in commerce.
THIS OPINION IS NOT
A PRECEDENT OF THE T.T.A.B.
Serial No. 78374039
2
the ground that THE LID used in connection with “flexible
covers and tarping systems” is merely descriptive. Section
2(e)(1) of the Lanham Act, 15 U.S.C. §1052(e)(1). When the
refusal was made final, applicant appealed. Both applicant
and the examining attorney filed briefs. We affirm the
refusal.
The examining attorney contends that THE LID “merely
describes the primary use or function of the goods, i.e.,
that they are hinged lids for truck trailers.” (Brief, p.
3). In support of the refusal, the examining attorney
relied on the following evidence:
1. Applicant’s brochure submitted as the original
specimen featuring a photograph of applicant’s
product and the phrase “Put a lid on it!”
(Emphasis in the original). The photograph is
shown below.

2. The definition of “lid” which means “a removable
or hinged cover for a hollow receptacle or box.
American Heritage Dictionary of the English
Language (3rd ed. 1992); and,

3. Excerpts from websites with references to the
word “lid” used in connection with truck covers.
Representative examples of the websites include
the following:
Serial No. 78374039
3
A. Gaylord’s Truck Bed Lids (gaylordslids.com)
advertising covers for pickup trucks;

B. An article in the “People” section of
www.latinola.com regarding a new invention:
“Local Latino develops revolutionary truck
lid cover.” The article provides the
following information:

La Shade is the first hard truck
lid cover that is dual-hinged,
first on the front edge of the
truck bed and then approximately
25” back, behind the front hinge
and cab. This allows the truck
lid to open in a vertical motion,
leaving the opened truck lid cover
in a horizontal position,
approximately 25” above the top of
the truck bed.

C. Tony’s Custom Truckware (custompickup.com)
with the following discussion regarding
“Hard Bed Covers”:

Truck Lids are a hard version of
the traditional soft tonneau
cover, offering better security
and easier access to the truck
bed. A truck lid features greater
visibility, is easily removed, and
keeps prying eyes out of your
truck bed.

D. Frequently asked questions about the
Sidewinder automatic transfer trailer
covering system (Donovan-ent.com):

Does it cover peaked loads?

Yes! Because the Sidewinder tarp
is pivoting at side mounted
hinges, the tarp is being laid
down rather than being rolled on
or drug across the load. The one
piece lid design allows Sidewinder
Serial No. 78374039
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to cover peaked loads without
steel framing getting in the way.

E. An article regarding 4-wheel drive vehicles
in about.com:

Cover It Up
Truck Bed Covers and Lids

* * *

Truck bed covers (often referred
to as tonneaus, tonnos and lids)
are attachments to a pickup
truck’s bed that provide
protection from weather and
security from theft allowing you
to store items in the bed and keep
them out of sight and out of the
weather.

F. A discussion in the AutoAnything website
(autoanything.com) regarding tonneau covers.

What’s in a Name?

* * *

Other more descriptive names refer to
the same part: bed cover, bed lid,
truck bed lid and more.

G. An article regarding “Truck Tents” in the
Industry Articles website (wordpress.com)
provides the following information:

Tonneau covers (also known as
truck bed covers, bed lids or
truck lids) have evolved from a
number of versions designed for a
variety of uses.

Applicant contends that THE LID is not merely
descriptive when used in connection with “flexible
Serial No. 78374039
5
tarpaulin cover systems for transfer trailers and the like”
for the following reasons:
1. The word “lid” is not typically used in the
industry;

2. When used to describe applicant’s products, the
word “lid” is incongruous; and

3. The article “the” adds a unique character to the
mark.

According to applicant, “the relevant purchasing
public includes owners or operators in the trucking or
transfer trailer industry, and particularly purchasers of
‘cargo and refuse trailers and semi-trailers.’” Because
the evidence submitted by the examining attorney references
the word “lid” used in connection with pickup trucks, the
evidence is not relevant to show how the word “lid” is
necessary to describe applicant’s “flexible tarpaulin cover
systems.” (Applicant’s Brief, pp. 6-7).
Applicant asserts that the word “lid” connotes a rigid
structure as evidenced by the websites submitted by the
examining attorney (e.g., Tony’s Custom Truckware website
stating that “Truck Lids are a hard version of the
traditional soft tonneau cover”). The word “lid” is,
therefore, incongruous when used in connection with
applicant’s flexible cover. (Applicant’s Brief, pp. 8-10).
Serial No. 78374039
6
Finally, applicant argues that the addition of the
definite article “the” to the mark engenders the commercial
impression that THE LID is unique: “THE, as a definite
article, implies that the item has some unique or defining
characteristics identifiable to the user. This character
of uniqueness is also suggestive to the consumer.”
(Applicant’s Brief, pp. 10-11).
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the goods with which it is
used. In re Gyulay, 820 F.2d 1216, 3 USPQ 1009 (Fed. Cir.
1987). Whether a particular term is merely descriptive is
determined in relation to the goods for which registration
is sought and the context in which the term is used, not in
the abstract or on the basis of guesswork. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978); In re Remacle, 66 USPQ 1222, 1224 (TTAB 2002). In
other words, the issue is whether someone who knows what
the goods are will understand the mark to convey
information about them. In re Tower Tech, Inc., 64 USPQ
1314, 1316-1317 (TTAB 2002); In re Patent & Trademark
Services Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In re Home
Builders Association of Greenville, 18 USPQ2d 1313, 1317
Serial No. 78374039
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(TTAB 1990); In re American Greetings Corp., 226 UPSQ 365,
366 (TTAB 1985).
“On the other hand, if one must exercise mature
thought or follow a multi-stage reasoning process in order
to determine what product or service characteristics the
term indicates, the term is suggestive rather than merely
descriptive.” In re Tennis in the Round, Inc., 199 USPQ
496, 497 (TTAB 1978). See also, In re Shutts, 217 USPQ
363, 364-365 (TTAB 1983); In re Universal Water Systems,
Inc., 209 USPQ 165, 166 (TTAB 1980).
Thus, we start our analysis by inquiring whether
applicant’s mark - - THE LID - - describes “flexible
tarpaulin cover systems for transfer trailers and the
like,” not whether we can guess what the product is by
looking at the mark. Because applicant’s product is, in
essence, a cover, and because a “lid” is a cover, the mark
THE LID directly conveys to potential consumers the nature
of the product without the need for any thought, logic, or
multi-stage reasoning. In this regard, we note that
applicant itself describes its product as a lid. See
applicant’s brochure with the photograph of the product and
the legend “Put a lid on it!” referenced above.
The other third-party materials provide evidence that
the word “lid” is descriptive when used in connection with
Serial No. 78374039
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pickup truck bed liners. While pickup trucks are different
than “cargo and refuse trailers and semi-trailers,” the
reference to “lids” in connection with pickup trucks
demonstrates the broad use of the term “lid” and a common
understanding of that word when it is used to describe
various covers.
The fact that applicant may be the first and possibly
the only user of this designation does not alter the
significance of THE LID and bestow upon applicant any
proprietary rights. In re Pharmaceutical Innovations,
Inc., 217 USPQ 365, 367 (TTAB 1983); In re Cosmetic
Factory, Inc., 208 USPQ 443, 447 (TTAB 1980).
The only remaining consideration is whether the use of
the definite article “the” converts the descriptive word
“lid” into a registrable trademark. We have repeatedly
rejected arguments that the use of the definite article
“the” as a prefix in a mark is sufficient to convert a
descriptive term into a suggestive term. The addition of
the word “the” to a descriptive word does not add any
source-indicating significance to the term sought to be
registered. See In re Weather Channel, Inc., 229 USPQ 854,
856 (TTAB 1985)(THE WEATHER CHANNEL for television
programming services describes the class of users to which
the services are directed); In re Computer Store, Inc., 211
Serial No. 78374039
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USPQ 72, 74-75 (TTAB 1981)(THE COMPUTER STORE is the common
descriptive name of a retail outlet that sells computers);
In re G. D. Searle & Co., 143 USPQ 220, 222-223 (TTAB
1964), aff’d, 149 USPQ 619 (CCPA 1966)(THE PILL for
pharmaceutical preparations in tablet form is merely
descriptive). The reasoning behind these cases provides
that the registration of THE LID would deprive others from
referring to their products by the designation “the lid” to
indicate that their covers are trailer lids.
In view of the foregoing, we find that when used in
connection with “mechanically-operated unfitted flexible
covers and tarping systems, namely, flip tarp systems,
primarily comprised of flexible covers, tarpaulins and
drive mechanisms for cargo and refuse trailers and semi-
trailers,” relevant consumers will immediately understand
the significance or meaning of the term “THE LID” without
having to resort to thought, logic, or a multi-stage
reasoning process, and that therefore the mark is merely
descriptive.
Decision: The refusal to register is affirmed and
registration to applicant is refused.