Ashley O'Rourke

Trademark Trial and Appeal Board

Dec 2, 2009

No. 77093617 (T.T.A.B. Dec. 2, 2009)

Mailed: December 2, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ashley O’Rourke1
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Serial No. 77093617
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Roberta Jacobs-Meadway of Eckert Seamans Cherin & Mellot for
Ashley O’Rourke.

Jennifer J. Vasquez, Trademark Examining Attorney, Law
Office 113 (Odette Bonnet, Managing Attorney).
____________

Before Quinn, Walters and Mermelstein, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Ashley O’Rourke is the applicant in an application to
register on the Principal Register the standard character
mark VINTAGE PINK for “jewelry, namely, bracelets, ankle
bracelets, necklaces, earrings, rings and pins,” in
International Class 14, and “women’s clothing, namely,
dresses, shirts, pants, jeans, jackets, coats, vests,

1 The application was filed originally by ADG, LLC and subsequently
assigned to Ashley O’Rourke.

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 77093617
2
sweaters, knit tops, skirts, blouses, socks, stockings, t-
shirts, sweat shirts and lingerie,” in International Class
25.2
The examining attorney has issued a final refusal to
register, 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.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We reverse the
refusal to register.
While admitting that some of her identified goods will
be pink in color and will follow a “retro style,” applicant
contends that neither the color pink nor the “retro style”
of some of her goods is a significant attribute of those
goods. In support of her position that color is not a
significant feature of clothing or jewelry, applicant
submitted nine third-party registrations for various
clothing marks that include a color, although without a
disclaimer.3
Applicant argues that “pink” connotes femininity and
that “vintage” is incongruous in her mark because, while the

2 Serial No. 77093617, filed January 29, 2007, based on an allegation of
a bona fide intention to use the mark in commerce in connection with the
goods identified in each International Class. Applicant amended its
application in its response of October 16, 2007, to enter a disclaimer
of “vintage” as previously required by the examining attorney. However,
applicant withdrew the disclaimer in its response of March 18, 2009.

Serial No. 77093617
3
term suggests clothing originating in a previous era,
applicant’s goods are new products of her own design.
Applicant argues that the two terms together are “in stark
contrast to each other” because “‛vintage’ connot[es] an
enduring quality and ‘pink’ connot[es] something fresh, new,
pure, and innocent.” (Brief, p. 10.) Finally, applicant
concludes that VINTAGE PINK is a unitary term that merely
“suggests an emotion or feeling in the relevant purchasing
public, namely a classic and enduring quality combined with
a fresh feminine style.” (Id., p. 13.)
Applicant submitted the following evidence, in addition
to that noted above, in support of her position:
• Photos of a white blouse and a pink blouse that
applicant intends to sell;
• Excerpt from www.inthepinkonline.com showing some pink
clothing items for sale, but the vast majority of
clothing items listed are not pink in color;
• Three third-party clothing registrations and one third-
party footwear registration for marks including the
word “pink” without a disclaimer, although Registration
No. 3245586 for the mark PINK PONY includes a Section
2(f) claim;

3 The third-party registered clothing marks include CASCADE BLUE, CORAL
BLUE, RACING GREEN, TOO BLUE, GREEN, STEEL BLUE.]
Serial No. 77093617
4
• Definition of “vintage clothing” from www.wikipedia.com
as “… new or secondhand garments originating from a
previous era” and excerpts from www.wikipedia.com
listing colors, none of which include “vintage pink”;
• Google search results for “vintage clothing” indicating
over 3.4 million “hits”;
• Two similar definitions of “vintage” – we note the
definition from www.merriamwebsteronline.com of
“vintage” as “noun, 3. a. period of origin or
manufacture b. length of existence: age” … adjective
2. of old, recognized, and enduring interest,
importance, or quality: classic 3. a. dating from the
past …”;
• Nine third-party registrations4 for marks including the
term “vintage” without a disclaimer thereof for
clothing and other goods;
• Excerpts from two websites indicating the symbolic
nature of the color “pink – in particular,
www.designmeltdown.com, which states “the color pink
primarily symbolizes love and beauty … [i]t can also be
very stylish and is currently a very trendy color.”
The examining attorney contends that “vintage pink” is
a recognized pale pink color used in connection with at

4 Examples of the registered marks include VINTAGE IMPERIAL with design,
VINTAGE FAITH, and VINTAGE VAQUERO with design.
Serial No. 77093617
5
least some of the identified goods in both classes; and that
each word in the mark is also individually merely
descriptive, noting that the identified goods could be pink
in color and that applicant has admitted that she sells
vintage clothing and jewelry. In support of her position,
the examining attorney has submitted the following evidence:
• 18 active third-party clothing registrations for marks
including the disclaimed term “vintage”;
• Excerpts from ten Internet websites, each showing an
item for sale and using the words “vintage” and “pink,”
submitted with the September 18, 2008 office action
including, for example, the following:
www.emitations.com – “Belen’s Vintage Pink Flower
Cuff Bracelet – “Craving some vintage charm? The
… bracelet … shines with bursts of iridescent pink
rhinestones.”

www.fashionjewelryforeveryone.com – “vintage pink
crystals jewelry adorned lite and dark fuchsia
pink crystals…”

www.etsy.com – “small vintage pink depression
glass cherry blossom plate – this is a really nice
piece of pink depression glass from the 1930’s.”

• Six additional excerpts from Internet websites
submitted with the denial of the request for
reconsideration including, for example, the following:
www.etsy.com – “vintage looking hat in vintage
pink color …”

Serial No. 77093617
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www.caboodle.com – “retro 1950’s style pinup nylon
panties in rose with black lace panels on the
sides. Color is a true vintage-pink color.”

www.flickr.com – photo description – “The room is
painted in a soft, vintage pink color that is
peeling …”
The examining attorney admits that, as argued by
applicant, “pink” may be used in the jewelry and clothing
fields to signify femininity. However, the examining
attorney notes that “pink” is also widely used as a color of
such goods. The examining attorney discounts applicant’s
evidence of third-party registrations for clothing that
includes in the mark either “pink” or “vintage” without
disclaimer by arguing that the whole term “vintage pink” is
merely descriptive of a particular color.
Applicant notes that the vast majority of the Internet
website excerpts submitted by the examining attorney use the
word “vintage” to refer to the item offered for sale, not in
connection with “pink” to connote a specific color.
Applicant admits that six website excerpts submitted by the
examining attorney do use the term “vintage pink” to
describe the color of the product; but applicant argues that
this evidence is not “significant enough to demonstrate that
‘vintage pink’ is used to refer to a specific shade of pink
or is a common commercial color.” (Id., p. 12.) In
particular, applicant notes that “the examining attorney has
not provided any evidence from a major publication or source
for the fashion industry, such as Vogue or Elle magazines, …
Serial No. 77093617
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and has not provided any objective evidence such as color
charts or definitions … that ‘vintage pink’ is a specific
color.” (Reply Brief, p. 3.)
The test for determining whether a mark is merely
descriptive is whether it immediately conveys information
concerning a quality, characteristic, function, ingredient,
attribute or feature of the product or service in connection
with which it is used, or intended to be used. In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed.
Cir. 2007); In re Engineering Systems Corp., 2 USPQ2d 1075
(TTAB 1986); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB
1979). On the other hand, a term which is suggestive is
registrable. A suggestive term is one which suggests,
rather than describes, such that imagination, thought or
perception is required to reach a conclusion as to the
nature of the goods. See, In re Gyulay, 820 F.2d 1215, 3
USPQ2d 1009 (Fed. Cir. 1987). There is but a thin line of
distinction between a suggestive and a merely descriptive
term, and it is often difficult to determine when a term
moves from the realm of suggestiveness into the sphere of
impermissible descriptiveness. See, In re Recovery, Inc.,
196 USPQ 830 (TTAB 1977).
The Office bears the burden of setting forth a prima
facie case in support of a descriptiveness refusal. See In
re Gyulay, supra, (when the Examining Attorney sets forth a
Serial No. 77093617
8
prima facie case, the applicant cannot simply criticize the
absence of additional evidence supporting the refusal and
must come forward with evidence supporting its argument for
registration).
Considering, first, the word “pink” in the mark, there
is nothing in the identification of goods that limits
applicant’s clothing and jewelry to pink items nor excludes
such items. Obviously, clothing may be made in many colors
and patterns. While the color of clothing and jewelry is
clearly significant from a style perspective, except in a
limited number of situations, from a trademark perspective
the use of a color word in a mark for clothing or jewelry is
unlikely to be perceived as descriptive of a significant
aspect of those goods. For example, without a showing that
all or most of applicant’s clothing is pink, in which case
one might be able to conclude that the color word in the
mark identifies a significant and “signature” aspect of
applicant’s clothing and jewelry, we find that the “pink”
portion of applicant’s mark is, at most, suggestive of one
color that could be used on clothing and jewelry. Further,
both applicant and the examining attorney agree that “pink”
is suggestive of femininity. The word “pink” in this mark
is more likely to suggest femininity, particularly in
connection with non-pink clothing and jewelry. The nine
clothing registrations submitted by applicant wherein the
Serial No. 77093617
9
color word in the mark is not disclaimed support this
finding, and the examining attorney has not rebutted this
evidence.
Considering, second, the word “vintage” in the mark,
the dictionary definition of the word “vintage” and the
various evidence submitted by both applicant and the
examining attorney about the word “vintage” in the context
of clothing and jewelry clearly refers to something old or
of old and/or classic style.5 There is nothing in the
identification of goods that either limits applicant’s
clothing and jewelry to vintage items or excludes vintage
items, and applicant has admitted that some of her clothing
and jewelry are “retro” in style. Applicant and the
examining attorney have submitted copies of third-party
registrations that either do or do not include a disclaimer
of the word “vintage” in the mark. Thus, we draw no
conclusions from this evidence other than that USPTO
disclaimer practice is inconsistent and/or that whether or
not a disclaimer is required is specific to the facts of
each case. Most of the Internet websites submitted by both

5 The examining attorney objects to the Wikipedia evidence submitted by
applicant on the ground that it is unverifiable because entries may be
constantly edited by anyone. It is unnecessary for us to consider the
Wikipedia definition of “vintage” as there is ample other evidence of
its meaning in this record. Moreover, in the context of
descriptiveness, we consider the Wikipedia evidence regarding whether
the Wikipedia color list includes “vintage pink” as a color, not for the
truth of whether “vintage pink” is a recognized color, but merely as one
indication that the public viewing and editing this Wikipedia entry
would not see “vintage pink” listed.

Serial No. 77093617
10
applicant and the examining attorney suggest that “vintage”
connotes the age, style and/or feeling of clothing or
jewelry, as well as other items. This falls short of
establishing that “vintage” is merely descriptive of a
significant aspect of clothing or jewelry.
Considering, finally, the mark in its entirety, we find
that, in the face of all of the contrary or ambiguous uses
of the phrase “vintage pink” submitted by applicant and the
examining attorney, the examining attorney has not met her
burden of establishing that a significant number of the
relevant public would readily view “vintage pink” as a
specific color or, even if this had been established, that,
for the same reasons discussed above in connection with the
individual words comprising the mark, the relevant public
would view this color as merely descriptive of a significant
aspect of the identified goods. Moreover, we agree with
applicant’s contention that the juxtaposition of the two
words, which may have slightly contradictory connotations,
adds something more to the mark than just the meanings of
the individual words.
When we consider the record and the relevant
descriptiveness factors, and all of applicant's and the
examining attorney’s arguments relating thereto, including
those arguments not specifically addressed herein, we
conclude the examining attorney has not established that the
Serial No. 77093617
11
term VINTAGE PINK immediately describes, without conjecture
or speculation, a significant feature or function of
applicant’s identified clothing and jewelry. We readily
admit that our determination on this issue is not free from
doubt. However, where there is doubt on the question of
mere descriptiveness, that doubt is to be resolved in
applicant’s behalf and the mark should be published for
opposition. See, In re Rank Organization Ltd., 222 USPQ
324, 326 (TTAB 1984) and cases cited therein.
Decision: The refusal under Section 2(e)(1) of the Act
is reversed.