Bar NND Ranches, LLC

Trademark Trial and Appeal Board

Jul 28, 2015

No. 77928601 (T.T.A.B. Jul. 28, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: July 28, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Bar NND Ranches, LLC
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Serial No. 77928601
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Justin R. Jackson of Peacock Myers, P.C.,
for Bar NND Ranches, LLC
Maureen Dall Lott, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
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Before Richey, Deputy Chief Administrative Trademark Judge, and Ritchie and
Hightower, Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Bar NND Ranches, LLC (“Applicant”) seeks registration on the Principal
Register of the mark shown at right for “Coffee;
coffee based beverages; roasted coffee beans” in
International Class 30.1 The mark includes the
following description:

1 Application Serial No. 77928601 was filed on February 4, 2010, based on Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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The mark consists of a two dimensional fanciful deer
design; the deer is holding a coffee mug which has the
words “UNGULATTE”; the matter shown by the dashed
lines in the drawing show placement of the mark; the
matter shown by the dashed lines in the drawing is a
“non-claimed” feature of the mark and serves to show the
position of the mark.
On August 15, 2012, Applicant submitted a specimen of use consisting of
printouts of three pages from the website ungulatte.com, as follows:2

2 White space has been cropped from each page of the specimen in this decision.
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Serial No. 77928601
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The Trademark Examining Attorney has refused registration of Applicant’s
mark on four related grounds:
1. The application seeks registration of more than one mark – that is, the
antlers formed in the drawing by dashed lines represent a changeable or
“phantom” element – in violation of Trademark Act Sections 1 and 45, 15
U.S.C. §§ 1051 and 1127;
2. Applicant’s drawing is unacceptable pursuant to Section 1(a)(1) of the Act;
3. The description of the mark is unacceptable pursuant to Trademark Rule
2.37, 37 C.F.R. § 2.37; and
4. The mark on the specimen of use does not match and show use of the
mark in the drawing, as required by Trademark Act Sections 1 and 45.
When the latter three refusals were made final, Applicant appealed and
requested reconsideration. After the Examining Attorney denied the request, the
appeal was resumed and Applicant filed an appeal brief. The case then was
remanded at the request of the Examining Attorney, who issued and made final the
phantom mark refusal. The appeal subsequently resumed, and briefing is
complete.3
We affirm the refusal to register.
I. Refusals under Trademark Act Sections 1 and 45
We begin by summarizing the system Applicant employs to designate its
different coffee products, topping its deer design with sets of antlers of differing
sizes and composition. The introductory paragraphs on the first page of Applicant’s
specimen explain the classification:

3 Applicant filed a supplemental brief (“Amended Appeal Brief”) and a reply brief. The
Examining Attorney also filed a brief.
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What is the deal with some of the deer with horns being
in felt and some deer have [sic] more horns than others?
Nelson and Nancy thought the deer in felt and the deer
with the differing amounts of horns would be the best way
to express the individual coffee products offered by
Ungulatte®. For example, all of the deer in felt reflect all
of the decaffeinated products. Also, the number of horns
on a particular deer reflects the strength of the particular
product.
As Applicant further explains in its appeal brief:
Applicant’s mark consists of a two dimensional fanciful
deer design; the deer is holding a coffee mug which has
the words UNGULATTE. Applicant places different
antler configurations above the deer to describe particular
qualities for each particular coffee product sold. For
example, Applicant applies antlers having more tips (i.e.
“points”) above the deer for bolder coffee. For
decaffeinated coffee, Applicant applies antlers having
velvet thereon above the deer.4
The Examining Attorney contends that applicant impermissibly seeks
registration of more than one mark because the antlers shown in broken lines in
Applicant’s drawing constitute a changeable, phantom element of the mark.5
A “phantom” trademark “is one in which an integral portion of the mark is
generally represented by a blank or dashed line acting as a placeholder for a generic
term or symbol that changes, depending on the use of the mark.” In re Int’l Flavors
& Fragrances Inc., 183 F.3d 1361, 51 USPQ2d 1513, 1515 n.1 (Fed. Cir. 1999).
Under the Trademark Act, however, “a trademark application may only seek to
register a single mark.” Id. at 1516. A mark that contains a changeable or

4 Amended Appeal Brief at 2-3, 7 TTABVUE 3-4.
5 Examining Attorney’s brief at 1, 15 TTABVUE 2.
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“phantom” element is considered to be more than one mark. In re Primo Water
Corp., 87 USPQ2d 1376, 1378 (TTAB 2008).
In order to determine whether Applicant is seeking to register a phantom mark,
we must decide whether antlers are integral to Applicant’s mark. Applicant argues
that antlers are not integral to or claimed as part of its mark, as indicated by the
representation of the small antlers on its drawing in broken lines pursuant to
Trademark Rule 2.52(b)(4), 37 C.F.R. § 2.52(b)(4)6:
In fact, the point of this appeal is to show that the antlers
do not constitute a phantom element because . . . the
antlers are separable from the rest of the mark and the
antlers do not constitute an “integral portion” of the mark
as would be required in order to support a claim that the
antlers are a “phantom element” of the mark.7
Applicant characterizes the antlers as “different antler drawings above its logo”
and analogizes them to the words “bold roast” above the logo.8 Applicant argues
that although the rest of its applied-for mark serves as a trademark for its goods,
the antlers merely describe a characteristic or quality of those goods: “Applicant’s
dashed antler portion, along with the language in the specimen of record, which
describes the commercial meaning of the different antler configurations, the more

6 Rule 2.52(b)(4) states: “Broken lines to show placement. If necessary to adequately depict
the commercial impression of the mark, the applicant may be required to submit a drawing
that shows the placement of the mark by surrounding the mark with a proportionately
accurate broken-line representation of the particular goods, packaging, or advertising on
which the mark appears. The applicant must also use broken lines to show any other
matter not claimed as part of the mark. . . .”
7 Reply Brief at 1-2, 16 TTABVUE at 2-3.
8 Amended Appeal Brief at 9-10, 13 TTABVUE 10-11.
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points, the bolder the coffee, creates a separate commercial impression from the rest
of the deer image.”9 Applicant concludes:
Antlers, both in real life and on applicant’s highly stylized
deer image, are separable from the rest of the deer.
Antlers are deciduous and from year to year, the same
deer will have a different antler configuration. Further,
the antlers in Applicant’s specimen convey a separate and
distinct commercial impression from the rest of the deer
image. Because of this, the antlers and the rest of the deer
do not meet the requirements of a unitary mark under
[Trademark Manual of Examining Procedure] § 1213.05.
Because the antlers and the rest of the deer are not a
unitary mark, and because the antlers are a non-claimed
element, the use of dashed lines for the antlers is proper
and does not constitute a phantom element. (internal
citation omitted).10
The question before us is not whether actual deer are deciduous, annually
growing antlers that are separable “in real life,” but whether the antlers are
separable from Applicant’s mark, which would reside on the Register in fixed two-
dimensional form. Below are Applicant’s drawing and an enlarged image of the
label on a bag of Applicant’s coffee submitted as part of its specimen of use:

9 Id. at 9, 13 TTABVUE 10.
10 Id. at 15, 13 TTABVUE 16.
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In both the drawing and the specimen, the antlers are not pictured “above” the
stylized deer’s head, as Applicant asserts, but attached to it. We find that the
antlers are integrated into the image of a deer holding a steaming mug of coffee.
Applicant’s stylized deer, with antlers of either size, constitutes a unitary composite
mark conveying a single commercial impression that does not vary with the size of
the antlers or the strength of Applicant’s coffee.
We note that we are not addressing a coffee classification system employing the
freestanding antler images shown in the legend below, enlarged from the first and
second pages of Applicant’s specimen:

In both Applicant’s drawing and specimen label, the antlers are attached to the
head of the stylized deer, not separate from it (for example, on a different part of the
label).
Nor has Applicant indicated that any antler configuration it may use will be
within a range limited by size, shape, or number of points. Indeed, the antlers in the
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mark on Applicant’s specimen label, which incorporate sweeping curves rather than
sharp angles, are different from any of the examples in the explanatory paragraphs
from Applicant’s website (shown immediately above); so are the antlers represented
in Applicant’s drawing, which are smaller than any of the specimen exemplars. The
case before us therefore is distinguishable from In re Dial-A-Mattress Operating
Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1813 (Fed. Cir. 2001), in which the
phantom element in the mark was “an area code, the
possibilities of which are limited by the offerings of the telephone companies.”
Applicant does not contend that the potential configurations of the antlers integral
to its mark are similarly circumscribed.11
For all of these reasons, we agree with the Examining Attorney that the dashed
lines in Applicant’s mark represent a phantom element in the form of changeable
antlers that may be depicted as felt or horn, in multiple shapes, with an unspecified
and variable number of points. We therefore affirm the refusal on the ground that
Applicant seeks to register more than one mark in violation of Trademark Act
Sections 1 and 45.
For the same reasons, we find that the specimen, which depicts the unitary
image of a stylized deer sporting very large, prominent antlers, does not show the

11 Applicant’s mark also is readily distinguishable from the two registrations discussed at
pages 13-14 of the Amended Appeal Brief, 13 TTABVUE 14-15, which are for product
configuration and packaging trade dress, respectively. We emphasize that we must decide
each case on its own facts. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564,
1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics similar to
[Applicant’s] application, the PTO’s allowance of such prior registrations does not bind the
Board or this court.”).
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applied-for mark in the drawing in use in commerce. We therefore affirm the refusal
on the ground that Applicant’s specimen of use does not match and show use of the
mark in the drawing, as required by Trademark Act Sections 1 and 45.
II. Refusals for Unacceptable Drawing and Description of the Mark
Finally, we address the refusals on the grounds that Applicant’s drawing is
unacceptable pursuant to Section 1(a)(1) of the Act and its description of the mark
is unacceptable pursuant to Trademark Rule 2.37, 37 C.F.R. § 2.37. These two
refusals flow from the substantive issue that Applicant is seeking to register more
than one mark in a single application. For that reason, based on our conclusion with
regard to the latter, both the drawing and description of the mark are unacceptable,
and we affirm the refusals on both grounds.
Decision: The refusal to register Applicant’s mark is affirmed.