Apparatus LLC

Trademark Trial and Appeal Board

Sep 28, 2017

No. 86443209 (T.T.A.B. Sep. 28, 2017)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Oral Hearing: Mailed:
September 12, 2017 September 28, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Apparatus LLC
_____

Serial No. 86443209
_____

Marc P. Misthal, Jonathan A. Malki, Donna L. Mirman, of Gottlieb Rackman &
Reisman PC for Apparatus LLC.

Karen K. Bush, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Kuhlke, Cataldo and Wolfson, Administrative Trademark Judges.
Opinion by Wolfson, Administrative Trademark Judge:
Apparatus LLC (“Applicant”) seeks registration of the proposed mark
(stylized) for the goods and services set forth below:1
Desk lamps; Electric lamps; Electric lighting fixtures;
Electric lighting fixtures, namely, sconces; Fixtures for

1 Application Serial No. 86443209 was filed on November 3, 2014 under Trademark Act
Section 1(b), 15 U.S.C. § 1051(b), based on Applicant’s asserted bona fide intention to use the
mark in commerce. Applicant originally sought registration for additional goods in classes 24
and 27. Following a request to divide the application, the class 24 and 27 goods were placed
in child application Serial No. 86980885, which registered under No. 5179487 on April 11,
2017. Applicant claims acquired distinctiveness of the mark in classes 11, 21, 37 and 42 under
Trademark Act Section 2(f), 15 U.S.C. § 1052(f).
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incandescent light bulbs; Floor lamps; Incandescent lamps
and their fittings; Lamp bases; Lamp shades; Lamps; LED
(light emitting diode) lighting fixtures; LED (light emitting
diodes) lighting fixtures for use in display, commercial,
industrial, residential, and architectural accent lighting
applications; Lighting fixtures for sports arenas; Lighting
fixtures for theatres, clubs and discotheques; Lighting
fixtures, namely, lighting installations; Lighting fixtures;
Sconce lighting fixtures; Stands for electric lighting
fixtures; Wall lamps, in International Class 11;
Candle holders; Candle holders not of precious metal;
Votive candle holders, in International Class 21;
Electrical repairs, maintenance, and installation of
electrical wiring, and light fixtures; Repair or maintenance
of electric lighting fixtures; Technical consultation in the
field of installation of lighting designs, lighting
instruments and lighting systems; Wallpaper hanging;
Wallpaper removal services; Wallpapering services, in
International Class 37; and
Lighting design and technology specification services
pertaining to permanent or temporary architectural,
theatrical, entertainment, commercial and/or residential
applications, in International Class 42.
The Trademark Examining Attorney refused registration under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. §1052(e)(1), on the ground that Applicant’s mark is
merely descriptive in connection with its goods and services. Applicant argued
against the refusal and, in the alternative, filed an amendment alleging that its mark
has acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C.
§1052(f).2 Finding Applicant’s evidence of acquired distinctiveness insufficient, the
Examining Attorney continued the refusal to register on the ground of mere

2 Applicant concurrently filed an amendment to allege use of its mark, claiming December
1, 2010 as the date of first use and first use in commerce.
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descriptiveness and, further, refused Applicant’s claim of acquired distinctiveness on
the ground that the mark is generic in connection with Applicant’s goods and services
and, thus, incapable of acquiring distinctiveness. The Examining Attorney also
refused registration to Applicant on the ground that the submitted specimen for
services in International Class 37 does not show use of the mark in relation to the
stated services under Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127.
When the Examining Attorney made the refusals final, Applicant filed a request
for reconsideration and appealed to this Board. The Examining Attorney denied
Applicant’s request for reconsideration and proceedings resumed. The case is fully
briefed.
I. Mere Descriptiveness
Because Applicant expressly made its claim of acquired distinctiveness pursuant
to Section 2(f) of the Trademark Act in the alternative, we first consider whether
APPARATUS is merely descriptive in connection with the identified goods and
services. Section 2(e)(1) prohibits the registration of a mark which, when used in
connection with the goods or services of the applicant, is merely descriptive of them.
A term is merely descriptive if it immediately conveys knowledge of a significant
quality, characteristic, function, feature or purpose of the goods or services it
identifies. See, e.g., In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009,
1009 (Fed. Cir. 1987). Determining the descriptiveness of a mark is done “not in the
abstract or on the basis of guesswork,” but in relation to an applicant’s identified
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goods and/or services, 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. In re Well Living Lab Inc., 122 USPQ2d 1777 (TTAB 2017)
(citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); see
also In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (citing In re Bayer
Aktiengesellschaft, 488 F.3d 960, 963-64, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)).
The question is whether someone who knows what the services or products are will
understand the mark immediately to convey information about them. In re MBNA
Am. Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003); In re Am.
Greetings Corp., 226 USPQ 365, 366 (TTAB 1985) (“Whether consumers could guess
what the product is from consideration of the mark alone is not the test.”).
The term “apparatus” has several relevant meanings. Its definition, from Merriam
Webster, includes: “a set of materials or equipment designed for a particular use” and
“an instrument or appliance designed for a specific operation.”3
Along these same lines, the Free Dictionary by Farlex defines “apparatus” as an
“appliance or device for a particular purpose” and “an integrated group of materials
or devices used for a particular purpose.”4 While Vocabulary.com5 suggests that the
term may refer to a single item (“a breathing apparatus”) or a group of items (“sports

3 At http://www.merriam-webster.com/dictionary/apparatus, attached to February 18, 2015
Office Action, TSDR 3.
4 September 28, 2015 Office Action, TSDR 2.
5 Id., TSDR 3.
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apparatus”), the common thread throughout the definitions is that the term refers to
an item or a collection of items forming a unified whole to accomplish a single purpose.
Applicant’s identification of goods includes different types of lamps, such as desk
lamps, electric lamps, sconces and wall lamps, as well as lamp bases and stands. Each
of these items has been designed for the specific purpose of providing light. In
addition, the identification includes:
lighting fixtures for use in display, commercial, industrial,
residential, and architectural accent lighting applications;
Lighting fixtures for sports arenas; Lighting fixtures for
theatres, clubs and discotheques; Lighting fixtures,
namely, lighting installations.
These goods are groups of items, namely lighting fixtures, designed for specific
purposes. The term “lighting” itself is defined as “the apparatus for supplying
artificial light effects to a stage, film or television set.”6 The proposed mark
APPARATUS describes the nature and function of Applicant’s lamps, lamp stands
and lighting fixtures. The term is merely descriptive for Applicant’s class 11 goods.
See In re Analog Devices Inc., 6 USPQ2d 1808, 1810 (TTAB 1988), aff'd without pub.
op., 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989) (“[R]egistration is properly
refused if the subject matter for registration is descriptive of any of the goods [or
services] for which registration is sought.”).
Applicant’s goods in class 21 include candle holders; these are devices for a
particular purpose, namely they are designed to hold candles. Thus, the proposed
mark is merely descriptive of the purpose or function of the goods. Futher, the broad

6 Id., COLLINS ENGLISH DICTIONARY, TSDR 4.
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nature of the identification as written includes candle holder assemblies, that is,
those made of several parts (such as in a chandelier) unified for the particular purpose
of holding candles. It is not necessary that a term describe all of the properties of the
goods in order for it to be considered merely descriptive thereof; rather, it is sufficient
if the term describes a significant attribute or feature about them. In re Am.
Greetings, 226 USPQ at 366 (APRICOT identifies significant feature of scent of toy
dolls). Here, a main feature of the goods is described by APPARATUS. The proposed
mark is descriptive of Applicant’s class 21 goods.
Applicant’s class 37 services include “repairs, maintenance, and installation” of
light fixtures and “technical consultation in the field of installation of lighting
designs, lighting instruments and lighting systems.” In class 42, Applicant’s services
are “lighting design and technology specification services pertaining to permanent or
temporary architectural, theatrical, entertainment, commercial and/or residential
applications.” A mark that consists of a term that is descriptive for a product is
considered merely descriptive of the services providing such product. See In re Dial-
A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807 (Fed. Cir. 2001)
(proposed mark “1-888-M-A-T-R-E-S-S” is merely descriptive of applicant’s telephone
shop-at-home mattress retail services); In re Pencils, Inc., 9 USPQ2d 1410 (TTAB
1988) (term “pencils,” when applied to applicant’s retail stationery and office supply
services, is merely descriptive). Because the term APPARATUS describes a feature
of the lighting fixtures and systems that Applicant provides, the term is also merely
descriptive of Applicant’s services pertaining to the design, installation and upkeep
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of such lighting fixtures, systems, and applications, as well as Applicant’s consulting
services in connection with these goods.
Applicant argues that the Office has registered three marks containing the term
APPARATUS without requiring the term to be disclaimed, and one mark for the term
APPARATUS alone, thus showing that it is only suggestive of the goods and services
herein involved.7 None of the registrations, however, are for goods or services related
to Applicant’s goods or services and one (Reg. No. 1355291) is registered under
Section 2(f) based on a showing of acquired distinctiveness. Accordingly they are of
little probative value in showing whether the term is merely descriptive of the
involved goods and services.
In considering whether Applicant’s applied-for mark is merely descriptive, we
have taken into account the fact that the mark is applied for as a stylized mark. “[A]
display of descriptive, generic or otherwise unregistrable matter is not registrable on
the Principal Register unless the stylization of the words or the accompanying design
features of the asserted mark create an impression on purchasers separate and apart
from the impression made by the words themselves, or unless it can be shown by
evidence that the particular display which applicant uses has acquired

7 The registrations are: Reg. No. 5052709 for the mark THE RED JUMPSUIT APPARATUS
for clothing; Reg. No. 4509123 for the mark G APPARATUS SEMPER VOLVENTES and
design for advertising and graphic design services; Reg. No. 3150768 for the mark
APPARATUS for computer consultation; Reg. No. 1355291 for the mark ELECTRICAL
APPARATUS for magazine[s]. Attached to November 3, 2016 Response, Exhibits D-F, TSDR
20-27. In addition, Applicant submitted a copy of a pending application for the mark
APPARATUS for “public policy consultancy services.” Id., Exhibit G, TSDR 28-9. Aside from
these being far different services than those of Applicant, third-party applications are
evidence only of the fact that they have been filed. Interpayment Services Ltd. v. Docters &
Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003).
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distinctiveness.” In re Am. Acad. of Facial Plastic and Reconstructive Surgery, 64
USPQ2d 1748, 1753 (TTAB 2002). Here, the stylization is so minimal that it does not
create a separate and inherently distinctive commercial impression apart from the
word APPARATUS, such that the mark as a whole is not merely descriptive.8 See,
e.g., In re Guilford Mills Inc., 33 USPQ2d 1042 (TTAB 1994); In re Pollio Dairy
Products Corp., 8 USPQ2d 2012, 2014 (TTAB 1988); In re Grande Cheese Co., 2
USPQ2d 1447, 1449 (TTAB 1986); In re Couriaire Express Int'l, Inc., 222 USPQ 365,
366 (TTAB 1984).
III. Genericness
In view of our finding that the applied-for mark APPARTUS is merely descriptive
in connection with the identified goods and services, we now consider, further,
whether it is a generic name for such goods and services. A mark is a generic name if
it refers to the class, genus, or category of goods or services on or in connection with
which it is used. In re La. Fish Fry, 116 USPQ2d at 1267 (citing In re Merrill Lynch,
Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987));
see also In re Dial-A-Mattress Operating Corp., 57 USPQ2d at 1810 (Fed. Cir.
2001); H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ
528 (Fed. Cir. 1986).
The critical issue in genericness cases is whether members
of the relevant public primarily use or understand the term
sought to be protected to refer to the genus of goods or
services in question. (internal citations omitted).
Determining whether a mark is generic therefore involves
a two-step inquiry: First, what is the genus of goods or

8 We discuss infra Applicant’s contention that its mark has acquired distinctiveness.
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services at issue? Second, is the term sought to be
registered or retained on the register understood by the
relevant public primarily to refer to that genus of goods or
services?
Marvin Ginn, 228 USPQ at 530.
The test for determining whether a mark is generic is its primary significance to
the relevant public. In re Emergency Alert Sols. Grp., LLC, 122 USPQ2d 1088, 1089
(TTAB 2017); In re Am. Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir.
1999). “A registration is properly refused if the word is the generic name of any of the
goods or services for which registration is sought.” In re Cordua Rests., Inc., 823 F.3d
594, 118 USPQ2d 1632, 1638 (Fed. Cir. 2016) (quoting 2 MCCARTHY ON TRADEMARKS
AND UNFAIR COMPETITION § 12:57). The Examining Attorney has the burden of
establishing by clear evidence that a proposed mark is generic. In re Emergency Alert,
122 USPQ2d at 1090.
A. What is the Genus of Goods and Services?
Our first task is to determine the proper genus of goods and services. Applicant’s
goods are essentially lamps, lighting fixtures and candle holders. Its services include
repair and maintenance of lighting fixtures and lighting design and technical
consultation. In defining the genus, we commonly look to the identification of goods
and services as they appear in the application. See Magic Wand, Inc. v. RDB, Inc.,
940 F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991) (“[A] proper genericness inquiry
focuses on the description of [goods or] services set forth in the [application or]
certificate of registration.”) (citing Octocom Sys., Inc. v. Houston Computers Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)); In re Reed Elsevier Prop.,
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Inc., 77 USPQ2d 1649, 1654 (TTAB 2005) (“we consider applicant’s identification as
largely defining the genus of services involved in this case”), aff'd 482 F.3d 1376, 82
USPQ2d 1378 (Fed. Cir. 2007). We find that the genus of goods and services at issue
here is adequately described by the amended identification of goods and services in
the application.
B. Does Applicant’s Mark Primarily Refer to the Genus?

We next consider whether APPARATUS would be understood by the relevant public
to refer to lamps and lighting fixtures, candle holders, and services related to the
design, repair, maintenance and installation of lighting fixtures and technical
consultation in connection therewith. The Examining Attorney contends that the
relevant public comprises “general consumers.”9 Applicant has not argued against
this characterization. In addition to the relevant dictionary definitions that are of
record, the Examining Attorney has made of record a copy of a page from the USPTO’s
U.S. Acceptable Identification of Goods and Services Manual (the “ID Manual”)
showing usage of the term “apparatus” in connection with “lighting apparatus”10 as
well as copies of several patents in which a device for a particular purpose such as
providing light or holding a candle is referred to as an “apparatus.”11

9 Examining Attorney’s brief, 13 TTABVUE 9.
10 December 9, 2016 Final Office Action, TSDR 2.
11 For example, Patent No. 6,022,122 relates to a decorative lamp apparatus that allows a
back-lit image to be displayed; Patent No. 8,506,289 B2 is for a candle holder apparatus that
contains a heat shield for deflecting heat generated by the electric candle; and several patents
relate to “lighting apparatus,” such as Patent No. 8,714,787 B2 for a “low bay lighting
apparatus” that is designed to be detachable from its installation mounting. December 9,
2016 Final Office Action, TSDR 8-9, 10-12, and 19-21.
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The ID Manual does not independently list “apparatus” as an acceptable entry.
An applicant seeking to register a mark for an apparatus must qualify that term by
a modifier, such as “lighting” or “lighting control [apparatus],” inasmuch as the term
“apparatus” is considered indefinite. However, the general public is unaware of the
USPTO’s official categories for identifying goods and services in trademark and
service mark applications. Likewise, the public is unaware of terminology used to
describe inventions in patent applications. The fact that “apparatus” is widely used
to describe different types of lights, light fixtures, or candle holders in a patent
application does not, without more, prove that the public uses the term “apparatus”
to refer to these goods.
The record is devoid of such indicia of consumer awareness as news items or third-
party web pages from the internet, from which we might deduce that APPARATUS
is commonly understood to refer to a type of lighting fixture or candle holder, or a
category of design, repair, maintenance, installation or technical consultation
services. In short, there is insufficient evidence from which to determine whether
relevant purchasers would view the applied-for mark APPARATUS as the name of
the class of services to which Applicant’s services belong, or that it would similarly
name the class of goods which are the subject of Applicant’s services. Therefore, we
must conclude that the Examining Attorney has fallen far short of meeting the
difficult burden of establishing genericness herein.12

12 We note, however, that in reaching our decision we did not find persuasive Applicant’s
argument regarding the vagueness of the involved term. See In re Analog Devices, 6 USPQ2d
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III. Has Applicant’s Mark Acquired Distinctiveness?
Having determined that the mark is merely descriptive in connection with the
identified goods and services, but that genericness has not been established on this
record, we now consider Applicant’s claim of acquired distinctiveness under Section
2(f) of the Trademark Act. The burden is on Applicant to show that APPARATUS has
acquired distinctiveness as a trademark for the goods listed in Applicant’s
application. In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264
(Fed. Cir. 2015); Yamaha International Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d
1572, 6 USPQ2d 1001, 1004 (Fed. Cir. 1988). The type and amount of evidence that
is required to show acquired distinctiveness varies with the nature of the mark. In
some cases a declaration that the mark has been in substantially exclusive and
continuous use as a mark for the five years before the claim of distinctiveness is made
is sufficient. See Section 2(f). However, “[t]he greater the descriptiveness or non-
distinctiveness of the proposed mark, the greater the burden is on an applicant to
demonstrate acquired distinctiveness.” In re Lorillard Licensing Co., 99 USPQ2d
1312, 1316 (TTAB 2011); see also Yamaha, 6 USPQ2d at 1008 (“the greater the degree
of descriptiveness the term has, the heavier the burden to prove it has attained
secondary meaning”). “[C]opying, advertising expenditures, sales success, length and
exclusivity of use, unsolicited media coverage, consumer studies (linking the name to

at 1810 (“even nebulous terms … may not be exclusively appropriated but must be left for all
to use in their ordinary generic sense”).
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a source)” may be relevant. In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420,
1424 (Fed. Cir. 2005).
Applicant’s evidence of acquired distinctiveness consists of a declaration under
Section 2(f), submitted on November 3, 2016, that “the mark has become distinctive
of the goods/services through the applicant’s substantially exclusive and continuous
use of the mark in commerce that the U.S. Congress may lawfully regulate for at least
the five years immediately before the date of this statement.” In addition, Applicant
submitted a copy of the results of a Google search, purportedly showing that
Applicant is the only entity using the proposed mark to indicate the source of lighting
design or candle holders, and pages from its website showing how its mark is used.
Applicant argues with respect to the Google search:
Applicant conducted an Internet search showing the
results of searching apparatus and lighting designs. See
evidence submitted as Exhibits B - C. Upon looking at the
search results, one can see that the first nine (9) search
listings identify Applicant as the source of lighting designs
being manufactured, marketed and sold under the name
APPARATUS. This evidence serves to support that
Applicant’s Mark is not generic but rather, has acquired
distinctiveness as used on and in connection with
Applicant’s Goods and Services.13
Contrary to Applicant’s contention, the Google search results do not clearly point
to Applicant or demonstrate that the proposed mark has acquired distinctiveness. In
the first place, they are merely excerpts, and not complete web pages. The search
inquiry used to obtain the results is not provided; thus we do not know whether the

13 November 3, 2016 Response, TSDR 5.
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search specifically asked for “apparatus studio” or combined “apparatus” with
another term. While about six excerpts appear to refer to Applicant, none contain
reliable identifying information and most bear different web addresses, vague
references to lights or furniture; one relates to “extinguishing apparatus.”14 As the
results do not provide us with sufficient information upon which to make a clear
finding, they have very little probative value. See Frito-Lay N. Am., Inc. v. Princeton
Vanguard, LLC, ___ USPQ2d___ (TTAB 2017) (citing In re Bayer Aktiengesellschaft,
488 F.2d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (“Search engine results —
which provide little context to discern how a term is actually used on the web page
that can be accessed through the search link — may be insufficient to determine the
nature of the use of a term or the relevance of the search results to registration
considerations.”); see also Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107
USPQ2d 1750, 1759 (TTAB 2013) (results from search engine introduced by
testimony admissible but of limited probative value because they lacked sufficient
context), aff'd, 565 F. App’x 900 (Fed. Cir. 2014) (mem.).
Because Applicant’s proposed mark is highly descriptive of the goods and services
named in the application, five years’ use alone is insufficient to establish acquired
distinctiveness. See In re La. Fish Fry, 116 USPQ2d at 1265 (holding that the Board
acted within its discretion when it chose not to find applicant’s allegation of five years’
use sufficient, given the highly descriptive nature of the mark). In this case, the
declaration of use and the Google search results are inconclusive, and Applicant has

14 November 3, 2016 Response, Exhibits B-C, TSDR 14-9.
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not demonstrated acquired distinctiveness by means of other evidence. While
Applicant argues that it has used its mark since 2010,15 Applicant has not submitted
any evidence corroborating this assertion or demonstrating the extent of that use. We
find that Applicant has failed to meet its burden of proving acquired distinctiveness
of the applied-for mark.
IV. Specimen Refusal
Registration was refused in class 37 on the additional ground that the specimen
submitted in connection with Applicant’s amendment to allege use does not show the
applied-for mark in use in commerce in connection with any of the services specified
in the class.
An application initially based on Trademark Act Section 1(b) must, upon the filing
of an allegation of use under Section 1(c) or a statement of use under Section 1(d),
include one specimen showing the applied-for mark in use in commerce, on or in
connection with those goods or services identified in the application, for each
international class identified in the allegation or statement of use. Trademark Act
Sections 1(c) and 1(d)(1), 15 U.S.C. §§ 1051(c) and 1051(d)(1); see also Trademark
Rules 2.76(b)(2) and 2.88(b)(2), 37 CFR §§ 2.76(b)(2) and 2.88(b)(2). In the case of a
service mark application, the specimen of use “must show the mark as used in the
sale or advertising of the services.” Trademark Rule 2.56(b)(2), 37 CFR § 2.56(b)(2).
In addition, the specimen must show a direct association between the mark and the

15 Appeal Brief, 11 TTABVUE 25.
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services. See Trademark Manual of Examining Procedure (TMEP) § 1301.04(f)(ii)
(April 2017) and cases cited therein.
Here, Applicant submitted two specimens purporting to show use of its mark in
association with class 37 services. The first was described by Applicant as a “page
downloaded from social media.”16 The page does not display the mark. The second
specimen was described as “page[s] downloaded from applicant’s website
www.apparatusstudio.com.”17 There are three pages; each bears the mark. The first
is titled “FAQS” and includes two questions with answers. The other two do not relate
to any services. The questions on the first page are: “How do I place an order for
lighting?” and “How do I buy replacement light bulbs?” The answers discuss how to
obtain lighting fixtures and replacement bulbs but do not contain sufficient
information from which we may infer that Applicant provides any of the services
recited in class 37. Accordingly, the specimens do not support Applicant’s amendment
to allege use and registration of APPARATUS in class 37.
V. Summary
Applicant’s mark, while not generic, is highly descriptive of the goods and services
for which application has been made. The showing of acquired distinctiveness is far
below that which would be required to show that the applied-for mark should be
registered under Section 2(f) of the Act. In addition, Applicant’s specimens purporting

16 Submitted March 28, 2016, Amendment to Allege Use.
17 Submitted November 3, 2016, Response to Office Action.
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to show use of its mark do not show the mark being used in association with any class
37 services.
Decision:
The refusal to register Applicant’s proposed mark on the ground that the mark is
generic is reversed.
Applicant’s evidence of acquired distinctiveness is insufficient to support a finding
that the mark should be registered under Section 2(f) of the Act. Accordingly, the
refusal based on the ground that the mark is merely descriptive is affirmed.
The refusal to register the mark in class 37 based on inadequate specimens is
affirmed.