Bargoose Home Textiles Inc.

Trademark Trial and Appeal Board

May 27, 2009

No. 77255007 (T.T.A.B. May. 27, 2009)

Mailed:
May 27, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Bargoose Home Textiles Inc.
________

Serial No. 77255007
_______

Julie B. Seyler of Abelman Frayne & Schwab for Bargoose
Home Textiles Inc.

Warren L. Olandria, Trademark Examining Attorney, Law
Office 112 (Angela Wilson, Managing Attorney).
_______

Before Seeherman, Rogers and Cataldo, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Bargoose Home Textiles Inc. has appealed from the
final refusal of the trademark examining attorney to
register “AllergyGreen” in standard character format, as a
trademark for “protective bedding, namely zippered and
fitted covers for mattresses, comforters; bed sheets and
waterproof mattress pads; reusable bed pads.”1 Registration
has been refused pursuant to Section 2(e)(1) of the

1 Application Serial No. 77255007, filed August 14, 2007, based
on Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77255007
2
Trademark Act, 15 U.S.C. § 1052(e)(1), on the basis that
applicant’s mark is merely descriptive of its identified
goods.
Applicant and the examining attorney have filed appeal
briefs.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act if it forthwith conveys an immediate idea of
an ingredient, quality, characteristic, feature, function,
purpose or use of the goods or services. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). A term need not immediately convey an idea of each
and every specific feature of the applicant’s goods or
services in order to be considered to be merely
descriptive; rather, it is sufficient that the term
describes one significant attribute, function or property
of the goods or services. In re H.U.D.D.L.E., 216 USPQ 358
(TTAB 1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973).
Whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods or services for
which registration is sought, the context in which it is
being used on or in connection with the goods or services,
and the possible significance that the term would have to
the average purchaser of the goods or services because of
Ser No. 77255007
3
the manner of its use; that a term may have other meanings
in different contexts is not controlling. In re Bright-
Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). Moreover, if
the mark is descriptive of any of the goods or services for
which registration is sought, it is proper to refuse
registration as to the entire class. In re Analog Devices
Inc., 6 USPQ2d 1808 (TTAB 1988), aff’d without pub. op.,
871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989).
In support of his position that the mark is merely
descriptive, the examining attorney has submitted
definitions for “allergy” and “green,” the most relevant of
which are:
Allergy: An abnormally high
sensitivity to certain substances, such
as pollens, foods, or microorganisms.
Common indications of allergy may
include sneezing, itching, and skin
rashes.

Green: adj. Beneficial to the
environment: green recycling policies.
Favoring or supporting
environmentalism: green legislators who
strengthened pollution controls.
n. A supporter of a social and
political movement that espouses global
environmental protection,
bioregionalism, social responsibility,
and nonviolence.2

2 The definitions are taken from The American Heritage
Dictionary of the English Language, 4th ed., © 2000.
Ser No. 77255007
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In addition, the examining attorney made of record
webpages taken from various Internet websites and the
Lexis/Nexis data base showing that “allergy bedding” and
“green bedding” or “allergy” and “green” have been used to
describe bedding products. See, for example, the
following:
The website for Allergy Solutions, Inc.
which uses “Allergy Mattress and Pillow
Covers” as a category descriptor, and
includes such text as “Providing only
Certified allergy covers for over a
decade” and “ALL FABRICS ARE CERTIFIED
ALLERGY COVERS WITH LIFETIME WARRANTY.”
The products featured are mattress and
pillow covers/encasings.

The website for Allergy Control
Products states “Our High Quality
Allergy Bedding is Designed for Your
Healthiest, Most Comfortable Night’s
Sleep” and uses “Allergy Bedding” as a
product category, in which, inter alia,
sheets and mattress pads are listed.
The text states, “For allergy sufferers
or persons looking for a healthier home
and healthy night’s sleep, our allergy
bedding selection offers hypo-
allergenic bedding….”

The Sylvane website uses “Allergy
Bedding” as a product category title,
referencing such items as mattresses,
sheets, mattress pads and bedding
enclosures.

The website for The Allergy Relief
Center lists “Pristine Allergy Bedding”
and “Taskmaster Allergy Poly/Cotton
Bedding” for mattress and pillow
encasements.

Ser No. 77255007
5
Struggling with allergies? Head to
this store. Stanfield’s Vacuum and
Allergy Relief Center in Greenwood is
more than just a vacuum cleaner fix-it
shop. It carries vacuum cleaners
alongside allergy-relief products. In
stock: allergy bedding, air purifiers,
….
“The Indianapolis Star,” January 7,
2008

Make the child’s room a haven of clean
air—no pets, no dust, no smoke and low
humidity. Use allergy bedding and wash
it once a week in hot water.
“The Commercial Appeal” (Memphis, TN),
May 1, 2007

An article at the Our 365 website
entitled “Baby’s Green Bedding: From
naptime to nighttime” discusses for
products such as linens, “the greening”
and “the greenest,” and brands that are
chemical free, and specifically
mentions products for allergy
sufferers.

The website for BNET has an article
from the April 8, 2008 Business Wire
entitled “Green Bedding Leader
Vivetique Unveils the Eco-Lux Mattress
in Time for Earth Day, April 22.”

The website for SPRIG, from June 4,
2008, with the slogan “Sassy People are
Into Green,” lists items “by Type of
Green” (e.g., waste-reducing,
sustainable, organic, recycled)
including a wide variety of “bed” items
including bed linens.

The Green Home Environment Store
website lists “products for going
green” and offers organic blankets and
comforters and duvet and comforter
covers made of “chemically untreated
cotton.”
Ser No. 77255007
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An article from the ECOMALL website
entitled “Going Green in Your Bedroom”
discusses the advantages of a green
bedroom and how to achieve one. “The
next step in creating a green bedroom
is chemical-free bedding. …look for
bedding produced without bleaching and
wool that has not been chemically
treated. Sheets from organic cotton,
cultivated without polluting pesticides
or synthetic fertilizers, not only
benefit the environment, but also your
health.”

In response to the green movement,
Fabricut is introducing green bedding
“using Milliken recycled polyester
greige goods that are transfer printed
in this country,” he related.
“Home Textiles Today,” May 5, 2008

Bamboo Sheets for Greener Globe
(headline)
Her Spring/Summer 2008 KN Luxury Home
Collection includes sumptuous bamboo
and cotton sheet sets, featuring a
silky-feeling, 60 percent bamboo, 40
percent cotton blend. … Commissioned to
create the ultimate sleep sanctuary at
a four-star, boutique hotel in the
Windy City, Neuberger featured the new
“green” bedding in the KN Tranquility
Suite…. Neuberger’s sheet sets,
available in four serene colors
inspired by nature…. KN Luxury Home
products are available in department
and specialty stores and online….
“Hartford Courant,” April 18, 2008

In addition, the examining attorney has submitted
evidence indicating that green bedding products are
attractive to people who have allergies:
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A February 2007 article on the Bed
Times website states that “the American
bedding industry is sprouting its own
green products,” and that some
consumers “with chemical sensitivities
or allergies seek alternatives to
traditional mattresses. … Natura World,
a manufacturer based in Cambridge,
Ontario, Canada, has been a player in
the green bedding game since the
company was founded in 1994.”

The website, www.best-in-bedding.com,
in its section “Welcome to the allergy
info section at best-in-bedding.com,”
discusses how for people with
allergies, certain types of bedding can
make them miserable, and that “Making
the right choices in bedding can make
the difference between sleepless,
stuffy nights and miserable mornings or
restful sleep.” … “Allergy sufferers
should choose 100% cotton bed linens or
other 100% natural fiber bedding.”

The above material shows that the terms “allergy” and
“green” are used to describe bedding such as the items
identified in applicant’s identification of goods, and
that, in fact, “allergy bedding” and “green bedding” are
used as category descriptors of such goods. As a result,
each of these terms directly conveys information about a
significant characteristic of bedding. We are not
persuaded by applicant’s argument that because the
definition of “allergy” refers to a condition, “allergy”
cannot be viewed as merely descriptive of protective
bedding; the evidence clearly shows that “allergy” is used
Ser No. 77255007
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as an adjective to describe such bedding. As for the
meaning of the word “green,” again the evidence shows that
this word is used as a descriptive term for bedding.
Applicant argues that “green,” in the context of bedding,
may have various interpretations, and therefore “if a clear
and concise definition of green cannot be found within the
bedding industry, the word cannot, inherently, be merely
descriptive….” Brief, p. 5. We are not persuaded by this
argument either. As the examining attorney points out,
although “green” bedding may have various meanings, all of
these meanings describe a characteristic of the products as
being environmentally friendly, whether the products are
organic, or are made from renewable resources, or are
recyclable. See In re Entenmann's Inc., 15 USPQ2d 1750,
1751 (TTAB 1990), in which the Board found OATNUT merely
descriptive for bread, despite the fact that the mark did
not inform purchasers what type of nut was used in the
bread. “While it is true that in order to be held merely
descriptive, a term must describe with some particularity a
quality or ingredient of the product in question, it need
not describe it exactly.” See also, In re Analog Devices,
supra, 6 USPQ2d at 1810:
Applicant argues that the term is too
nebulous and vague to be commercially
useful for competitors of applicant to
Ser No. 77255007
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use to describe any products. However,
while we readily concede that the
category of products which the term
“analog devices” names encompasses a
wide range of products in a variety of
fields, we do not believe this fact
enables such a term to be exclusively
appropriated by an entity for products,
some of which fall within that category
of goods. For example, while terms
such as “digital devices,” “computer
hardware,” “computer software” and
“electronic devices,” just to name a
few, may be broad and even nebulous
terms, nevertheless, these terms may
not be exclusively appropriated but
must be left for all to use in their
ordinary generic sense.

Accordingly, the question that we must decide is
whether, when these two descriptive terms, “allergy” and
“green,” are combined as the term “AllergyGreen,” the
descriptive nature of the terms remains, or whether the
combined term is, as applicant asserts, an incongruous
expression.
First, although applicant has not argued to the
contrary, we point out that consumers will view the mark as
a combination of the two words, ALLERGY and GREEN. The
omission of the space between the words does not give the
mark a different impression. Applicant depicts its
standard character mark with a capital “A” and a capital
“G,” so that the two words are readily apparent.
Ser No. 77255007
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Applicant claims that “AllergyGreen” is incongruous
and therefore suggestive because a noun, ALLERGY, precedes
an adjective, GREEN. However, as the evidence shows, in
the bedding industry “allergy” is used as an adjective for
bedding products, and would be understood as such in
applicant’s mark.
Applicant relies on the cases Ex parte Barker, 92 USPQ
218 (Com’r Pats. 1952) (CHERRY-BERRY-BING for fruit and
berry preserve) and In re Colonial Stores Inc., 394 F.2d
549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE for bakery
products). However, in those cases the marks convey a
double entendre: in addition to the descriptive meaning of
the marks, each also has a non-descriptive meaning of, in
the first case, a song title, and in the second, a phrase
from a well-known nursery rhyme. Applicant has not
indicated what the non-descriptive meaning for
“AllergyGreen” would be, and one is not apparent to us. To
be found a double entendre, the non-descriptive meaning
must be readily recognizable. See In re The Place Inc., 76
USPQ2d 1467, 1470 (TTAB 2005) (“The multiple
interpretations that make an expression a ‘double entendre’
must be associations that the public would make fairly
readily,” quoting TMEP § 1213.05(c)).
Ser No. 77255007
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Nor do we find In re Shutts, 217 USPQ 363 (TTAB 1983),
another case cited by applicant, to be on point. In that
case, the Board held that SNO-RAKE was not merely
descriptive of a snow removal hand tool because people do
not rake snow, and therefore the term “rake” in the mark
was incongruous. However, in the present situation, the
evidence shows that both of the terms in applicant’s mark,
ALLERGY and GREEN, are used by competitors and writers to
describe products of the type identified in applicant’s
application.
We will not burden this opinion with a discussion of
each of the many cases cited by applicant. Suffice it to
say that in this particular case, given the evidence that
“allergy” and “green” are recognized descriptive terms for
bedding products, when these terms are combined in the mark
“AllergyGreen” and this mark is applied to protective
bedding, consumers will immediately understand that
“AllergyGreen” describes bedding that has both an anti-
allergy feature and is environmentally friendly.
Decision: The refusal of registration is affirmed.