A&L Wholesale Company

Trademark Trial and Appeal Board

Sep 12, 2019

87636157 (T.T.A.B. Sep. 12, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 12, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re A&L Wholesale Company
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Serial No. 87636157
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Michael E. Robinson of Robinson IP Law PLLC, for A&L Wholesale Company.
Obieze Mmeje, Trademark Examining Attorney, Law Office 122, John Lincoski,
Managing Attorney.
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Before Mermelstein, Shaw and Dunn
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
A&L Wholesale Company (“Applicant”) seeks registration on the Principal
Register of the mark BUG BALL (in standard characters) for goods identified as “Fly
traps,” in International Class 21.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that

1 Application Serial No. 87636157 was filed on October 6, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
Serial No. 86754756
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Applicant’s mark is merely descriptive of the identified goods. When the refusal was
made final, Applicant appealed. We affirm the refusal to register.
Mere Descriptiveness under Section 2(e)(1)
“A term is merely descriptive if it immediately conveys knowledge of a quality,
feature, function, or characteristic of the goods or services with which it is used.” In
re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012) (quoting In re Bayer A.G., 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir.
2007)); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009-10 (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 Dev. Corp., 588 F.2d 811, 200 USPQ
215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002).
The Examining Attorney argues:
In this case, both the individual components and the
composite result are descriptive of Applicant’s goods and do
not create a unique, incongruous, or nondescriptive
meaning in relation to the goods. Specifically, the word
BUG in the applied-for mark merely describes the purpose
of Applicant’s fly traps, particularly, to trap bugs in the
nature of flies. Similarly, the word BALL in the applied-
for mark merely describes the spherical shape of
Applicant’s goods.”2
In support of the refusal, the Examining Attorney relies on the following
dictionary definitions regarding the proposed mark’s constituent terms:3

2 Examining Attorney’s Br., p. 6, 6 TTABVUE 6.
3 Office Actions of January 17, 2018 and August 21, 2018.
Serial No. 86754756
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• Bug—“A small insect”
• Ball—“A spherical object or mass of material”
• Fly—“A winged insect”
The Examining introduced an Amazon.com listing for Applicant’s product which
establishes that the BUG BALL fly trap is ball shaped:4

The advertisement states that the fly trap is comprised of an “18 inch PVC Ball.” The
Examining Attorney also introduced excerpts from several Internet websites showing

4 Office Action of January 17, 2018.
Serial No. 86754756
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various examples of “bug traps,” “mouse traps,” and “fly traps” sold by third parties.5
These excerpts establish that the name of the pest, e.g., “bug,” “mouse,” and “fly,”
commonly define the type of trap being used.
Applicant argues that its mark is not merely descriptive because “[w]hen the two
words BUG and BALL are joined together as a phase, the connotation of the phase is
a ball of bugs. Although Applicant’s product might be ball‐shaped, Applicant does not
sell a ball of bugs.”6 This argument is unpersuasive. The descriptiveness of a mark is
determined in relation to the identified goods, the context in which the mark is being
used, and the possible significance the mark would have to the average purchaser
because of the manner of its use or intended use. See In re Chamber of Commerce of
the U.S., 102 USPQ2d at 1219 (citing In re Bayer, 82 USPQ2d at 1831.
Descriptiveness of a mark is not considered in the abstract. In re Bayer, 82 USPQ2d
at 1831. When prospective consumers consider BUG BALL in relation to fly traps,
they would likely assume that the goods were ball-shaped fly traps, as in fact they
are as shown by the Amazon.com advertisement.
The evidence of record establishes that BUG BALL immediately and directly
conveys information about Applicant’s fly traps, namely that they are ball shaped and
that they are used for the purpose of trapping bugs. No degree of imagination, thought
or perception is needed to understand the nature of the goods described in the mark
BUG BALL. The fact that an applicant may be the first and only user of a merely

5 Office Action of January 17, 2018.
6 Applicant’s Br., p. 3, 4 TTABVUE 5.
Serial No. 86754756
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descriptive designation does not justify registration if the only significance conveyed
by the term is merely descriptive. See In re Fat Boys Water Sports LLC, 118 USPQ2d
1511, 1514 (TTAB 2016).
For the foregoing reasons, we conclude that when used on or in connection with
Applicant’s identified goods the proposed mark, BUG BALL, merely describes fly
traps.
Decision: The refusal to register Applicant’s mark BUG BALL under Section
2(e)(1) of the Trademark Act is affirmed.