Anders Lowe, Inc.

Trademark Trial and Appeal Board

May 20, 1998

No. 74672694 (T.T.A.B. May. 20, 1998)

Paper No. 9
GDH/AKP
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MAY 20, 1998
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Anders Lowe, Inc.
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Serial No. 74/672,694
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David Weiser of Lilling & Cohen LLP for Anders Lowe, Inc.
Christine Baker, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
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Before Hohein, Hairston and Walters, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Anders Lowe, Inc. has filed an application to register
the term "LIPSTIX" for "lipstick".1 Applicant concedes that such
term is the phonetic equivalent of the generic word "lipsticks"
as evidenced by its voluntary disclaimer of the word "lipsticks".
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis
that, when used in connection with applicant’s goods, the term
"LIPSTIX" is merely descriptive of them. Specifically, the
Examining Attorney maintains that the sound created by the letter

1 Ser. No. 74/672,694, filed on May 11, 1995, which alleges dates of
first use of February 1992.
Ser. No. 74/672,694
2
"’x’ is so frequently substituted for [the combinations] ’ck’ and
’cks’ that the commercial impression, connotation and meaning of
’LIPSTIX’ cannot be interpreted as something other than the
generic name for applicant’s goods and[,] thus, would be
perceived as descriptive of the [applicant’s] goods."
In support of her position that there is nothing novel
or unique about applicant’s use of the letter "X" as the phonetic
equivalent of the letter combinations "CK" and "CKS," the
Examining Attorney relies upon copies of 15 third-party
registrations of marks containing the term "STIX" for goods
identified as various kinds of sticks or sold in stick form and
for which such term in either disclaimed or the mark is
registered on the Supplemental Register. The Examining Attorney
also supports her position by citing a dictionary definition,
which we judicially notice,2 of the word "lipstick" from
Webster's II New College Dictionary (2d ed. 1995) at 639 in which
such term is listed as a noun meaning a "small stick of waxy or
pastelike lip coloring usually enclosed in a cylindrical case."
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
As stated by the Board in In re State Chemical
Manufacturing Co., 225 USPQ 687, 689 (TTAB 1985):

2 The Board may properly take judicial notice of dictionary
definitions. See, e.g., Hancock v. American Steel & Wire Co. of New
Jersey, 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953) and University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ
594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser. No. 74/672,694
3
It is hornbook law that the use of a
slight misspelling of a descriptive term
which would be perceived by purchasers as the
equivalent of the descriptive term is subject
to the same proscription of Section 2(e)(1)
as the descriptive term itself. E.g.,
Standard Paint Co. v. Trinidad Asphalt Co.,
220 U.S. 446, 455 (1911) [RUBEROID,
misspelling of "rubberoid" for roofing
material]; Miller Brewing Co. v. Joseph
Schlitz Brewing Co., 605 F.2d 990, 203 USPQ
642, 643 (7th Cir. 1979) [LITE, misspelling
of "light" for low calorie beer]; Fleetwood
Co. v. Sylvia Mende, 298 F.2d 797, 132 USPQ
458 (CCPA 1962) [TINTZ, misspelling of
"tints" for hair coloring formula]; American
Druggists’ Syndicate v. United States
Industrial Alcohol Co., 2 F.2d 942, 55 App.
D.C. 140 (1924) [ALKOL, misspelling of
"alcohol" for rubbing alcohol]; A&H Transp.
Inc. v. Save Way Stations, Inc., 214 Md. 325,
115 USPQ 251 (1957) [SAVON GAS, equivalent of
"save on gas" for gasoline filling station
services]; 1 McCarthy, TRADEMARKS AND UNFAIR
COMPETITION, §11:12 (2d ed. 1984).
Applicant, while acknowledging in its brief that
"admittedly the term lipstick is a generic word" for its goods,
argues that "it does not necessarily follow that a phonetic
variation can not be registered." In particular, relying
principally upon In re Grand Metropolitan Foodservice Inc., 30
USPQ2d 1974 (TTAB 1994), in which the stylized mark "MufFuns" for
"baked mini muffins sold frozen or fresh" was held to project a
dual meaning or suggestiveness of muffins which are also fun to
eat, applicant contends that the term "LIPSTIX" similarly has a
different commercial impression or connotation from that conveyed
by a misspelled generic or descriptive term alone.
In this regard, applicant argues that it "has not
submitted a mere misspelling of a phonetic equivalent." Instead,
applicant asserts--for the first time in its brief and notably
Ser. No. 74/672,694
4
without any evidentiary support in the record—-that, due to the
manner in which it uses the term "LIPSTIX":3
Applicant is telling its customers that its
product "sticks" on for a very long time.
Had the Applicant simply submitted its mark
without directing its customers to the
characteristics and qualities of its goods,
then [the] refusal to register may have been
proper. This case is included within the
principles as described [in] In Re Grand
Metropolitan Foodservice Inc., (supra).
Applicant’s customers are directly focused to
the significance of the characteristics and
qualities of its goods. That is, Applicant’s
lipstick really stays on for very long time.
As described on the Applicant’s packaging,
"This amazing orange-in-the-tube-
lipstick changes color to enhance your
natural skin tone and keeps lips from
drying and chapping, it really stays on!
It’s the only lipstick you’ll ever
need."
"To reorder call 1-800-Lipstix"
The Applicant in the case at bar is
alerting its consumers to the quality and
characteristic of the long lasting sticking
ability of Applicant’s lipstick, just as
Grand Metropolitan alerted its customers that
their muffins are fun. See In Re Grand
Metropolitan Foodservice inc., (supra).
(Registration allowed for the phonetic
misspelling [of] muffin as "muffuns"). Just
as in Grand Metropolitan, Applicant herein is
using its mark for the purpose of directly
focusing consumers to the qualities and
characteristics of its goods, to wit, that
the product sticks on a person’s lips for a
very long time.

3 The specimens of record show only the following use of the term
"LIPSTIX":
Ser. No. 74/672,694
5
We agree with the Examining Attorney, however, that the
purchasing public "is unlikely to attribute any meaning to the
proposed mark other than the dictionary definition of a generic
word," namely: lipsticks. Unlike the readily apparent double
entendre projected by the mark "MufFuns" in In re Grand
Metropolitan Foodservice Inc., supra at 1975, there is nothing in
the record which suggests, nor does common experience indicate,
that buyers of lipsticks attach any importance or significance to
how well such a product "sticks" to their lips. To be sure, some
purchasers may care whether a lipstick is long-lasting, in the
sense that it tends not to wear off, but wearers of lipstick
simply do not regard such a characteristic in terms of how well
the product "sticks on a persons lips".
Instead, as demonstrated by the evidence relied upon by
the Examining Attorney and applicant’s disclaimer of the word
"lipsticks," the term "LIPSTIX" is merely a slight misspelling,
and the phonetic equivalent, of the generic term "lipsticks,"
which are the goods in connection with which applicant uses the
term it seeks to register. Accordingly, and in light of the
policy considerations expressed in In re State Chemical
Manufacturing Co., supra at 689-90, for prohibiting registration
of such a term in the absence of a possible showing of acquired
distinctiveness pursuant to Section 2(f) of the Trademark Act, 15
U.S.C. †1052(f), the term "LIPSTIX" is at least merely
descriptive of "lipstick". See, e.g., Sebastian International
Inc. v. Hask Toiletries Inc., 12 USPQ2d 2008, 2011 (TTAB 1989)
[term "SHPRITZ" held phonetic equivalent of the generic term
Ser. No. 74/672,694
6
"SPRITZ" and hence unregistrable on the Principal Register for
"hair spray"].
Decision: The refusal under Section 2(e)(1) is
affirmed.
G. D. Hohein
P. T. Hairston
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board