Ampersand Avenue LLCDownload PDFTrademark Trial and Appeal BoardApr 17, 2019EX (T.T.A.B. Apr. 17, 2019) Copy Citation Mailed: April 17, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ——— In re Ampersand Avenue LLC ——— Serial No. 87318360 ——— Nicholas D. Wells, Legends Law Group PLLC, for Ampersand Avenue LLC. Natalie Polzer, Trademark Examining Attorney, Law Office 108, Steven R. Berk, Managing Attorney. ——— Before Cataldo, Mermelstein, and Ritchie, Administrative Trademark Judges. Opinion by Mermelstein, Administrative Trademark Judge: Ampersand Avenue LLC filed an application to register1 DOUBLEHOOD (in standard characters) on the Principal Register for “tops; sweatshirts; shirts,” in In- ternational Class 25 and “online retail store services featuring clothing,” in Interna- tional Class 35. The Examining Attorney issued a final refusal to register on the 1 Filed January 30, 2017, based on an allegation of first use and use in commerce on Novem- ber 1, 2013. The drawing in the application depicts the applied-for mark as DoubleHood, although we will follow our usual convention of depicting standard-character marks in capital letters. In re Calphalon Corp., 122 USPQ2d 1153, 1154 n.1 (TTAB 2017) (“Our presentation of the mark in all uppercase letters reflects the fact that a term registered as a mark in ‘standard character’ form is not limited to any particular font style, size, or color.”). This Opinion is not a Precedent of the TTAB Serial No. 87318360 - 2 - ground that the mark is merely descriptive of Applicant’s goods and services pursuant to Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1). The Examining Attorney also made final a requirement for acceptable specimens of use with respect to Appli- cant’s Class 35 services pursuant to Trademark Act Sections 1 and 45, 15 U.S.C. §§ 1051, 1127; 37 C.F.R. §§ 2.34(a)(1)(iv), 2.56(a), 2.63(b). Applicant appealed. We affirm the refusal to register in International Class 25 and dismiss the appeal as to International Class 35, with the result that the specimen requirement remains, and thus the application is abandoned as to that class. I. Specimen Requirement — Class 35 Services Upon initial examination, the Examining Attorney found that “the specimen does not show the applied-for mark in use in commerce in connection with any of the ser- vices specified in International Class 035,” and required the submission of an accepta- ble specimen of use. Ofc. Action (Apr. 28, 2017). Applicant submitted a substitute specimen with its response, Resp. to Ofc. Action (Dec. 28, 2017), but the Examining Attorney found the substitute specimen wanting and made the requirement final, Final Ofc. Action (Feb. 8, 2018). Applicant filed a notice of appeal, seeking review of the refusal to register with respect to both classes of goods and services in its application. 1 TTABVUE 1 (Aug. 8, 2018). But Applicant’s opening brief does not mention, let alone argue, the final requirement for a substitute specimen. Applicant’s description of the case suggests its understanding that the only issue before us is the § 2(e)(1) refusal: On or about April 28, 2017, the Office conducted its initial review of the subject application. Within that context, the Office refused registration of the mark under Section 2(e) Serial No. 87318360 - 3 - of the Act based on the mark being “merely descriptive.” On December 28, 2017, Applicant filed a brief seeking to overcome the refusal under Section 2(e). On February 8, 2018, the Office issued a Final Office Action under Section 2(e). On August 8, 2018, Applicant filed this ex parte ap- peal. App. Br., 4 TTABVUE 5 (Sept. 5, 2018). In her brief, the Examining Attorney noted Applicant’s failure to raise the specimen issue. Ex. Att. Br., 6 TTABVUE 3 n.1, 12 (Oct. 24, 2018). Applicant did not file a reply brief. Although Applicant’s “filing of a notice of appeal has the effect of appealing all refusals or requirements made final,” In re Harley, 119 USPQ2d 1755, 1757 (TTAB 2016) (citing In re Citibank, N.A., 225 USPQ 612, 613 (TTAB 1985)), its failure to argue, or even mention, in its brief the outstanding final requirement for an accepta- ble Class 35 specimen constitutes a waiver of the issue. See id. We do not consider the merits of the Examining Attorney’s requirement (or the argument in her brief on appeal) because Applicant has not given us any basis on which to do so, leaving un- challenged the final requirement for acceptable specimens. Cf. Trademark Rule 2.142(b)(1) (“If the brief is not filed within the time allowed, the appeal may be dis- missed.”). We accordingly dismiss the appeal with respect to International Class 35. The application record will be updated to indicate the abandonment of that class. II. Descriptiveness — Class 9 Although the Examining Attorney’s refusal to register on the ground of mere de- scriptiveness applied to both classes, we need not consider that refusal with respect to Applicant’s Class 35 services, which we deem to have been abandoned. In re DTI Serial No. 87318360 - 4 - P’ship LLP, 67 USPQ2d 1699, 1702 (TTAB 2003) (appeal of § 2(e)(1) refusal rendered moot by Applicant’s failure to address outstanding Trademark Rule 2.61(b) infor- mation requirement). We therefore consider only whether DOUBLEHOOD is merely descriptive of Applicant’s goods, namely, “tops; sweatshirts; shirts.” A. Applicable Law A term that is merely descriptive of the identified goods may not be registered on the Principal Register without a showing of acquired distinctiveness.2 Trademark Act Sections 2(e)(1), –(f), 15 U.S.C. §§ 1052(e)(1), –(f). “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 AG, 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 or services 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). In other words, the question is whether some- one who knows what the goods are will understand the mark to convey information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re Tower Tech, Inc., 64 USPQ2d 1314, 2 Applicant does not claim that DOUBLEHOOD has acquired distinctiveness and we do not consider that issue. Serial No. 87318360 - 5 - 1316–17 (TTAB 2002); In re Patent & Trademark Servs. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998). “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 charac- teristics the term indicates, the term is suggestive rather than merely descriptive.” In re Tennis in the Round, Inc., 199 USPQ 496, 497 (TTAB 1978). B. Evidence In support of her contention that DOUBLEHOOD is merely descriptive of Appli- cant’s identified clothing, the Examining Attorney submitted dictionary definitions of the words “double” and “hood.” We find the following definitions relevant: dou•ble . . . adj. 1. Twice as much in size, strength, number, or amount: a double dose. 2. Composed of two like parts: double doors. THE AMERICAN HERITAGE DICTIONARY, double (5th ed. Apr. 25, 2017), www.ahdiction- ary.com/ (First Ofc. Action (Apr. 28, 2017)). hood . . . n. 1. A loose pliable covering for the head and neck, often at- tached to a robe or jacket. Id., hood. The Examining Attorney also made of record eight third-party registrations of marks comprising the terms “double” or “hood” for various items of clothing, in which those words are disclaimed or registered subject to a claim of acquired distinctiveness, Serial No. 87318360 - 6 - or on the Supplemental Register. First Ofc. Action (Apr. 28, 2017). “Third party reg- istrations show the sense in which the word is used in ordinary parlance and may show that a particular term has descriptive significance as applied to certain goods or services.” In re Morinaga Nyugyo K.K., 120 USPQ2d 1738, 1745 (TTAB 2016) (quot- ing Institut National Des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992)). The Examining Attorney’s third-party registrations include Registration. No. 4959689, HOOD READY for goods including “hooded sweatshirts” (HOOD dis- claimed); and Registration No. 3991313, DOBLE (indicating that DOBLE means “double” in English) for goods including “shirts,” on the Supplemental Register. (The latter registration is somewhat less probative because as will be seen, we focus pri- marily on sweatshirts.) These registrations support the Examining Attorney’s asser- tion that “double” and “hood” are descriptive of Applicant’s clothing. Although the Examining Attorney’s remaining registrations suggest that “double” and “hood” are generally descriptive of clothing, their probative value is somewhat diminished be- cause they do not identify any of the specific goods included in the subject application. The question before us is more specifically whether DOUBLEHOOD is descriptive of tops, sweatshirts, or shirts. While the registration evidence suggesting that “double” or “hood” may be descriptive of other items of clothing is consistent with the Examin- ing Attorney’s position that those terms (and their combination) are descriptive of Applicant’s goods, it does not directly support that proposition. And finally, the Examining Attorney submitted images of eleven retail websites Serial No. 87318360 - 7 - demonstrating third-party use of “double hood” and similar designations:3 • A webpage advertising a sweatshirt under the heading “DOUBLE HOOD SWEATSHIRT | QUILTED PEACH.” The product description includes the promise that “double hoods keep your noggin warm.” First Ofc. Action (Apr. 28, 2017) (www.simplyreese.com/products/double-hood-sweatshirt-quilted- peach).4 • A webpage advertising a sweatshirt under the heading “DOUBLE HOODED CHARCOAL HERRINGBONE SWEATSHIRT.” The sweatshirt is described as “[f]eaturing a functional double hood with a side zipper and thumb holes.” First Ofc. Action (Apr. 28, 2017) (simpleaddiction.com/products/double-hooded-char- coal-herringbone-sweatshirt). • A webpage advertising a “Double Hooded Drawstring Hoodie with Front Pocket — Blackish Green.” First Ofc. Action (Apr. 28, 2017) (www.rose- gal.com/sweatshirts-hoodies/double-hooded-drawstring-hoodie-with- 852090.html). • A webpage advertising a “DOUBLE LAYER HOOD SWEATSHIRT,” described as a “double hooded sweatshirt[ ].” First Ofc. Action (Apr. 28, 2017) (www.jaceylane.com/products/double-hooded-sweatshirt). • A webpage advertising a “Double Hood Fleece Sweatshirt.” Final Ofc. Action (Feb. 8, 2018) (shop.nordstrom.com/s/superdry-double-hood-fleece-sweatshirt/ 3138626). 3 Images have been cropped and resized. Full-sized originals appear in the application file. 4 Applicant argues that this website contained blatant and willful copyright infringements of fashion photographs owned by Applicant. Such photographs were subse- quently removed from the . . . website based on a takedown no- tice submitted under the Digital Millennium Copyright Act. This may serve as some indication of the true nature of the use of “DOUBLE HOOD” by Simply Reese, i.e., to appropriate the goodwill created by Applicant via its DOUBLEHOOD trade- mark and associated goods. App. Br., 4 TTABVUE 13. Assuming for the sake of argument that Simply Reese infringed Applicant’s copyright in fashion photographs, it does not follow that it also infringed Applicant’s DOUBLEHOOD trademark. In any event, the question before us is not whether Applicant’s mark has been infringed, but whether it is descriptive, i.e., whether it a trademark at all. Serial No. 87318360 - 8 - • A webpage advertising a “70s TAILSWEEP DOUBLE HOODED SWEAT- SHIRT.” Final Ofc. Action (Feb. 8, 2018) (www.cavaliersteamshop.com/cavs- 70s-tailsweep-double-double-hood). • A webpage advertising a “plus size double hooded pullover tunic sweatshirt with floral sleeves.” The product is advertised as having a “double hood with adjustable tie.” Final Ofc. Action (Feb. 8, 2018) (www.maurices.com/prod- uct/plus-size-double-hooded-pullover-tunic-sweatshirt-with-floral-sleeves/ 10992). • A webpage advertising a “Winter Wonderland Double Hood Sweatshirt.” Ac- cording to the webpage, “[t]his is [their] favorite Holiday themed double hood sweatshirt.” Final Ofc. Action (Feb. 8, 2018) (dandelionsboutiq.com/products/ winter-wonderland-double-hood-sweatshirt). • A webpage advertising a “Vemper Women’s Funnel Neck Raglan Sleeve Double Hooded Sweatshirt Pullover With Pockets.” Final Ofc. Action (Feb. 8, 2018) (www.amazon.com/Vemper-Womens-Sweatshirt-Pullover-Pockets/dp/). • A webpage advertising a “Plus Size Double Hood Sweatshirt.” Final Ofc. Action (Feb. 8, 2018) (www.aliexpress.com/item/Plus-Size-Double-Hood-Sweatshirt- Women-2017-Autumn-Winter-Cropped-Hoodie-Femme-5-Colors-Basic-Hood- ies/). • A webpage advertising a “Champion & UP Double Hoodie Sweatshirt,” which is described as having “an adjustable drawstring [and] double-hood.” Final Ofc. Action (Feb. 8, 2018) (www.urbanoutfitters.com/shop/champion-uo-double- hoodie-sweatshirt). Applicant submitted no evidence in response to the § 2(e)(1) refusal to register. C. Analysis The Examining Attorney’s dictionary definition of double includes “[t]wice as much in . . . number,” and “[c]omposed of two like parts.” So in contrast to a sweat- shirt having a single hood, the description of a sweatshirt as having a double hood would indicate that it has two hoods. Although the dictionary excerpt does not specif- ically indicate that this definition applies to clothing, there is no argument or evi- dence indicating that “double” would have any different meaning in the context of Serial No. 87318360 - 9 - clothing, or Applicant’s goods in particular. The Examining Attorney’s third-party website evidence establishes that sweatshirts with two hoods are in fact an estab- lished product known to the purchasing public and generally available to them, and that the word “double” is used to describe such goods. The Examining Attorney’s definition of hood does specifically apply to clothing, and again, there is no argument or evidence suggesting that it would not apply to Applicant’s clothing. The evidence of record establishes that use of the term “hood” in connection with sweatshirts is common, and would not be unexpected or unusual to the relevant purchasers. The evidence further indicates that the terms “double” and “hood” (or “hooded”) are used together to describe sweatshirts with two hoods. And as noted, the ’689 Registration (HOOD READY with a disclaimer of HOOD, registered for goods including hooded sweatshirts), and the ’313 Registration (DOBLE — mean- ing “double” — for goods including shirts on the Supplemental Register) further sup- port the Examining Attorney’s definitions of “double” and “hood” in the context of the identified goods. Applicant does not dispute that double and hood are descriptive in the sense shown by the Examining Attorney’s evidence or that the “sweatshirts” identified in its application encompass sweatshirts with two hoods. Instead, Applicant heavily re- lies on the fact that it uses the mark not as DOUBLE HOOD but as DOUBLEHOOD, without a space. This minor but important difference separates Applicant’s mark from all of the cited third party registrations containing the word DOUBLE or the word HOOD — none use the word DOUBLE or the word HOOD in combination with another Serial No. 87318360 - 10 - term as a single word without a space. App. Br., 4 TTABVUE 12. Further, Applicant argues that the words “double” and “hood” “are not typically used together; doing so creates a coined term and a unitary mark,” App. Br., 4 TTABVUE 12, and that its “DOUBLEHOOD mark is not a term which is in the public domain. The mark’s spelling and total appearance are unique.” App. Br., 4 TTABVUE 13. Further, noting that the Examining Attorney’s evidence of third-party use all showed use of the terms “double” and “hood” (or hooded) as separate words, Applicant concludes that “none of these companies used Applicant’s mark to ‘describe’ their products.” App. Br., 4 TTABVUE 12. Applicant’s arguments largely rest on the fact that — although it includes the words “double” and “hood” — its mark is a compound formed by joining those two words by eliminating the usual space between them.5 There is no indication that the word DOUBLEHOOD appears in any dictionary,6 but that is of little consequence. It 5 We agree that DOUBLEHOOD is unitary because the words comprising it are physically connected. As such, Applicant could not be required to disclaim DOUBLE or HOOD apart from the mark as a whole. See In re EBS Data Processing, Inc., 212 USPQ 964, 966 (TTAB 1981). However, the issue before us is not a disclaimer requirement, but whether Applicant’s mark is merely descriptive in its entirety. As to that question, whether the mark is unitary is irrelevant. See Minn. Mining & Mfg. Co. v. Addressograph-Multigraph Corp., 155 USPQ 470, 472 (TTAB 1967) (“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 be- tween the words. . . .”). 6 Applicant maintains that DOUBLEHOOD is a “coined” mark. App. Br., 4 TTABVUE 12. A coined mark is one that is fanciful, having no meaning other than as an indication of source. J.T. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:5 (5th ed. Mar. 2019 Update) (examples include EXXON, CLOROX, and VIAGARA). Unlike McCarthy’s examples, Applicant’s purchasers would readily understand the applied-for mark to be descriptive. Serial No. 87318360 - 11 - has long been held that a descriptive compound term (such as “double hood”) does not lose its descriptiveness when spaces are removed if purchasers would understand the resulting compound to be descriptive. For instance, the term SCREENWIPE was held generic despite the lack of a dictionary definition for the mark as a whole: “[T]he PTO has satisfied its evidentiary burden if, as it did in this case, it produces evidence in- cluding dictionary definitions that the separate words joined to form a compound have a meaning identical to the meaning common usage would ascribe to those words as a compound.” In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111–12 (Fed. Cir. 1987). Likewise, GASBADGE was found descriptive of a gas monitoring badge. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978). See also, In re Petroglyph Games Inc., 91 USPQ2d 1332, 1341 (TTAB 2009) (“Because there is sufficient . . . evidence on which to conclude that BATTLE and CAM both would be viewed as descriptive terms when considered in conjunction with applicant’s goods, and because the combination of the terms does not result in a composite that alters the meaning of either of the elements, refusal [to register BATTLECAM] on the ground of descriptiveness is appropriate.”); In re Carlson, 91 USPQ2d 1198, 1200 (TTAB 2009) (“[T]he compression of the words URBAN HOUSING into a single term, URBANHOUZING, still conveys the commercial impression of two words. In other words, consumers would recognize the mark as consisting of the separate elements URBAN and HOUZING.”); In re Cox Enters. Inc., 82 USPQ2d 1040 (TTAB 2007) (“Ap- plicant’s mark THEATL is simply a compressed version of the descriptive term THE Serial No. 87318360 - 12 - ATL without a space between the two words. Without the space, THEATL is equiva- lent in sound, meaning and impression to THE ATL and is equally descriptive of ap- plicant’s goods.”). Applicant argues that the words “double” and “hood” “are not typically used to- gether; doing so creates a . . . mark that carries meaning as a source identifier inde- pendent of the individual meaning of the two words.” App. Br., 4 TTABVUE 12. We disagree. The Examining Attorney’s evidence clearly shows that “double” and “hood” are indeed used together to describe sweatshirts. Applicant has offered no evidence suggesting that the combination of those words is not “typical,” and it does not follow that an atypical combination of words would render an otherwise descriptive com- pound distinctive. Applicant also argues — without evidentiary support — that its goods “are com- monly called sweatshirts, hooded sweatshirts, or hoodies. Likely prospective custom- ers of such goods would commonly refer to the goods using these terms.” App. Br., 4 TTABVUE 11–12. To the contrary, if DOUBLEHOOD is descriptive of Applicant’s goods, it is irrelevant that there are also other words that are descriptive of them, or that what Applicant seeks to register is not the most commonly used descriptive term. There are usually many words which are merely descriptive of a particular good or service, but the Trademark Act prohibits registration of them all. The fact that other descriptive terms are available or more commonly used by consumers or competitors to describe Applicant’s goods is irrelevant. Philip Morris Inc. v. Liggett & Myers To- bacco Co., 139 USPQ 240, 244 (TTAB 1963). Serial No. 87318360 - 13 - We agree that if, as Applicant claims, the combination of the descriptive terms “double” and “hood” into DOUBLEHOOD imbued the result with a nondescriptive meaning independent from that of its parts, it would be strong, maybe conclusive, evidence that the mark as a whole is not descriptive. See Real Foods Pty Ltd. v. Frito- Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018) (individual elements of a mark may be considered, but the ultimate conclusion must rest on the impression of the mark as a whole). But we are at a loss to apply the principle in this case because — although Applicant argues that its mark has a meaning “independent of the . . . meaning of the two words,” App. Br., 4 TTABVUE 12 — Applicant does not indicate what that meaning might be, and none is obvious to us. To the extent it could be argued that purchasers might not recognize that Appli- cant’s mark is comprised of those two separate words because of the lack of a space between them, that likelihood is minimized, if not eliminated, by Applicant’s ability to display its standard-character mark in a variety of ways that emphasize the indi- vidual words “double” and “hood.” Even if it could be argued that Applicant’s mark would not be perceived as descriptive in some permissible depictions, it is unregistra- ble if it would be perceived as descriptive in any. Applicant cites a number of cases in support of its argument that its mark is not descriptive. E.g., In re Colonial Stores, Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE not merely descriptive of bakery products); Tennis in the Round, 199 USPQ 496 (TENNIS IN THE ROUND not merely descriptive of tennis facilities); In re Pennwalt Corp. 173 USPQ 317 (TTAB 1972) (DRI-FOOT not merely descriptive Serial No. 87318360 - 14 - of foot deodorant). But Applicant does not explain how the principles discussed in the cited cases would be applied to the facts of this case. Applicant does not argue, for instance, that the terms “double” and “hood,” when combined to form its mark, result in a reference to something else entirely, as was the case in Colonial Stores, 157 USPQ at 384 (holding SUGAR & SPICE to refer to the line “ ‘sugar and spice and everything nice’ from the well known nursery rhyme”); that DOUBLEHOOD is in- congruous as applied to Applicant’s goods, as was the mark TENNIS IN THE ROUND, Tennis in the Round, 199 USPQ at 497–98 (mark suggested a tennis facility similar to a theater-in-the-round, which is inconsistent with the game of tennis); or that its mark is “obviously not the usual or normal manner in which the” features of a sweatshirt having a two hoods would be described, see Pennwalt Corp., 173 USPQ at 318 (the evidence indicates that “double hood” is used to describe sweatshirts; Ap- plicant has adduced no evidence to the contrary). Finally, we note Applicant’s reliance on the Federal Circuit’s decision in In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir. 2005). In that case, the Board had found STEELBUILDING.COM generic, and in the alternative, descriptive and without secondary meaning, as used in connection with the “sale of pre-engi- neered metal buildings and roofing systems.” The court of appeals vacated the Board’s genericness holding because “the Board did not correctly describe the genus of goods and services offered by the applicant.” Id., 75 USPQ2d at 1424. Nonetheless, the Court affirmed the Board’s findings that STEELBUILDING.COM was merely de- scriptive and had not acquired distinctiveness. Id. Applicant argues that Serial No. 87318360 - 15 - the Federal Circuit concluded that STEELBUILDING was not generic even if “steel building” was. The removal of the space was sufficient to move a mark from generic to “merely descriptive.” Applicant submits that removing a space is sufficient in this case to move the DOUBLEHOOD mark from “merely descriptive” to highly suggestive. App. Br., 4 TTABVUE 13. Contrary to Applicant’s argument, Steelbuilding.com supports the Examining At- torney’s position because it demonstrates that the combination of merely descriptive terms into a single compound word can result in a merely descriptive whole. The Court noted evidence from the applicant’s website: The applicant’s web site lists as its first feature: “Design your steel building with our advanced interactive system.” (Emphasis added). One of applicant’s advertisements in- cludes the following sentence: “E-Commerce website offers instant pricing and on-line sales of steel buildings, mini storage systems, building accessories, component parts and all-steel homes.” (Emphases added). Based on this evi- dence and more in the record, this court concurs in the statement of the Board: “[w]e, frankly, are at a loss to un- derstand that if the retail sale of steel buildings is not the primary feature of applicant’s services, what is. However, whether steel buildings are the ‘primary feature’ of appli- cant’s services is not determinative, because they are at least a significant feature of applicant’s services.” Steelbuilding.com, 75 USPQ2d at 1423. Like the Board, the Court of Appeals had no difficulty concluding that the mark — a compound comprised of the words “steel” and “building,” with the addition of the TLD .COM — was merely descriptive of the applicant’s services. Applicant’s mark, a compound comprised of the words “double” and “hood,” is comparable to STEEL- BUILDING.COM, and this record, like that in Steelbuilding.com, includes evidence that the terms in combination are descriptive of Applicant’s sweatshirts. While we Serial No. 87318360 - 16 - cannot place much weight on the particular result in a case involving different marks, different services, and a different record, we cannot see how Steelbuilding.com sup- ports Applicant’s case. III. Conclusion We have carefully considered all of the argument and evidence of record, including any we have not commented upon. Applicant’s proposed mark is DOUBLEHOOD for, among other things, “sweat- shirts.” The evidence shows that sweatshirts with two hoods are a product available to the public and are described or called “double hood” or “double hooded” sweatshirts. Applicant’s identified sweatshirts are not limited to any particular type of sweatshirt, and so include sweatshirts with two hoods. Applicant’s proposed mark is formed by the combination of the descriptive terms “double” and “hood” into one word. The re- sulting term, DOUBLEHOOD, does not bear any meaning or connotation different than the descriptive words “double hood,” which are easily recognized as the constit- uent parts of DOUBLEHOOD. As a result, prospective customers would immediately, and without conjecture, understand DOUBLEHOOD to be merely descriptive of a feature of Applicant’s sweatshirts, namely that they have two hoods. Decision: The refusal to register under Trademark Act § 2(e)(1) is affirmed with re- spect to Applicant’s Class 25 goods. Since the requirement to submit a new specimen for the Class 35 goods was not included in the substance of the appeal, the appeal as to Applicant’s Class 35 services is dismissed, and the application is abandoned as to that class. The application will not proceed to publication in either class. Copy with citationCopy as parenthetical citation