Bedgear LLC

Trademark Trial and Appeal Board

May 25, 2017

No. 86670817 (T.T.A.B. May. 25, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: May 25, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Bedgear LLC
_____

Serial Nos. 86670815 and 866708171
_____

Leo G. Lenna of Sorell Lenna & Schmidt LLP,
for Bedgear LLC.
Kathleen M. Vanston, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Mermelstein, Greenbaum and Heasley,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Bedgear LLC (“Applicant”) seeks registration on the Principal Register of the
mark PERFORMANCE POWER PACK (in standard characters, PACK disclaimed)
for
Mattresses, mattress foundations, mattress toppers,
pillows, back-rest pillows, sleeping bags in International
Class 20, and

1 Because the cases share common questions of law and fact, and the relevant portions of the
records largely are identical, the appeals are hereby consolidated. See, e.g., In re Anderson,
101 USPQ2d 1912, 1915 (TTAB 2012) (sua sponte consolidation). All TTABVUE and TSDR
citations herein refer to the file for Serial No. 86670815 unless otherwise noted.
Serial Nos. 86670815 and 86670817
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Bed sheets, bed blankets, comforters, duvets, mattress
covers, mattress pads, mattress protector covers, pillow
protector covers, pillowcases and pillow covers, crib
mattress covers, crib mattress pads, diaper changing pads
not of paper, crib mattress protector covers and crib sheets
in International Class 24.2
In each application, the Trademark Examining Attorney has refused registration
of Applicant’s mark under Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a),
based on Applicant’s failure to comply with the requirement to disclaim
PERFORMANCE because it is merely descriptive of Applicant’s goods within the
meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), and thus an
unregistrable component of the mark. In particular, the Examining Attorney
submitted evidence that the term “performance” describes fabric with functional
qualities such as thermo-regulation or anti-microbial properties, and Applicant’s
goods incorporate or comprise this type of fabric.
When the refusals were made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeals were resumed. We affirm both refusals to register absent
a disclaimer.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
In the text of its appeal brief, Applicant submitted for the first time a list of

2 Application Serial Nos. 86670817 (Class 20) and 86670815 (Class 24) were filed on June 23,
2015, based on Applicant’s claim of first use anywhere and use in commerce since at least as
early as July 20, 2013.
Serial Nos. 86670815 and 86670817
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PERFORMANCE-inclusive registrations owned by third-parties,3 and information
concerning Applicant’s annual advertising expenditures, “a substantial portion of
[which] is apportioned to the products under the PERFORMANCE marks.”4 The
Examining Attorney has objected to both items on grounds of timeliness.
Trademark Rule 2.142(d), 37 CFR § 2.142(d) provides that the record in the
application should be complete prior to the filing of an appeal. The Board ordinarily
will not consider additional evidence submitted by an applicant or examining
attorney after the appeal is filed. Thus, exhibits attached to a brief that were not
made of record during examination are untimely, and generally will not be
considered. See, e.g., In re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d
1593, 1596 (TTAB 2014) (examining attorney’s objection to applicant’s submission of
registrations with appeal brief sustained); In re MC MC S.r.l., 88 USPQ2d 1378, 1379
n.3 (TTAB 2008) (previously unsubmitted materials attached to applicant’s brief not
considered); In re Tea and Sympathy Inc., 88 USPQ2d 1062, 1063 n.2 (TTAB 2008)
(exhibits submitted for first time with applicant’s appeal brief and declaration
attached to reply brief not considered). On the same point, evidentiary references

3 Applicant’s Brief, pp. 2-5. Applicant did not make the registrations of record during
prosecution of the applications (see In re Jump Designs LLC, 80 USPQ2d 1370, 1372-73
(TTAB 2006)), and the Board generally does not take judicial notice of registrations residing
in the USPTO. See In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925 n.3 (TTAB 2002). The
registrations therefore are not of record. We add that even if we had considered the list, it
would have had little, if any, probative value because the registrations are for goods that are
different from those identified in the applications. See In re 1st USA Realty Prof’ls Inc., 84
USPQ2d 1581, 1583 (TTAB 2007).
4 Applicant’s Brief, p. 8. While evidence concerning advertising expenditures may be used to
demonstrate that a proposed mark has acquired distinctiveness (see Trademark Rule
2.41(a)(3)), Applicant did not amend either application to seek registration under Section 2(f)
of the Trademark Act, 15 U.S.C. § 1052(f).
Serial Nos. 86670815 and 86670817
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made in briefs but not supported by timely submissions may not be considered. See
In re Procter & Gamble Co., 105 USPQ2d 1119, 1120 (TTAB 2012).
Accordingly, the objection is sustained, and we have not considered the list of third
party registrations or the information pertaining to Applicant’s advertising
expenditures.
On the other hand, we have considered Applicant’s list of its own
PERFORMANCE-inclusive registrations, which Applicant submitted in the text of
its Request for Reconsideration and repeated in the text of its brief, because the
Examining Attorney did not object to the list; rather, she responded to the list on its
merits. Accordingly, we treat the list as having been stipulated into the record, and
have considered the specific data that Applicant has provided.5 See 1st USA Realty
Prof’ls, 84 USPQ2d at 1583.
II. Applicable Law
The Director of the USPTO “may require the applicant to disclaim an
unregistrable component of a mark otherwise registrable.” Trademark Act Section
6(a), 15 C.F.R. § 1056(a). Merely descriptive terms are unregistrable under
Trademark Act Section 2(e)(1), and, therefore, are subject to disclaimer if the mark
is otherwise registrable. Failure to comply with a disclaimer requirement is a ground
for refusal of registration. See In re Slokevage, 441 F.3d 957, 78 USPQ2d 1395 (Fed.
Cir. 2006); In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087 (Fed. Cir. 2005); In

5 To clarify, what we consider to be of record is the list of registrations that Applicant
submitted with its request for reconsideration, see 4 TTABVUE 3–5, rather than the listed
registrations themselves. In re Houston, 101 USPQ2d 1534, 1536 (TTAB 2012).
Serial Nos. 86670815 and 86670817
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re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re
Richardson Ink Co., 511 F.2d 559, 185 USPQ 46 (CCPA 1975); In re Nat’l Presto
Indus., Inc., 197 USPQ 188 (TTAB 1977); and In re Pendleton Tool Indus., Inc., 157
USPQ 114 (TTAB 1968).
A term is merely descriptive of goods or services within the meaning of Section
2(e)(1) “if it immediately conveys knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is used.” In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)
(quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed.
Cir. 2007)). See also In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370,
1371 (Fed. Cir. 2004) (quoting Estate of P.D. Beckwith, Inc. v. Comm’r, 252 U.S. 538,
543 (1920) (“A mark is merely descriptive if it ‘consist[s] merely of words descriptive
of the qualities, ingredients or characteristics of’ the goods or services related to the
mark.”)), cited with approval in In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574,
1575 (Fed. Cir. 2015).
The determination of whether a mark is merely descriptive must be made “in
relation to the particular goods for which registration is sought, the context in which
it is being used, and the possible significance that the term would have to the average
purchaser of the goods because of the manner of its use or intended use.” Bayer
Aktiengesellschaft, 82 USPQ2d at 1831 (citing In re Abcor Dev. Corp., 588 F.2d 811,
200 USPQ 215 (CCPA 1978)). In other words, the question is not whether someone
presented only with the mark could guess the goods listed in the identification of
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goods. Rather, the question is whether someone who knows what the goods are will
understand the mark to convey information about them. DuoProSS Meditech Corp.
v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012);
Abcor, 200 USPQ at 218. In addition, it is not necessary, in order to find a mark
merely descriptive, that the mark describe each feature of the goods, only that it
describe a single, significant ingredient, quality, characteristic, function, feature,
purpose or use of the goods. Chamber of Commerce of the U.S., 102 USPQ2d at 1219
(quoting In re Stereotaxis, 77 USPQ2d at 1089); In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987).
III. Analysis
The Examining Attorney asserts that the term PERFORMANCE, as used in
Applicant’s mark and in the context of the identified goods, immediately informs
consumers of a significant feature or characteristic of such goods, namely, that they
utilize or incorporate performance fabrics.
As evidentiary support, the Examining Attorney submitted dictionaries and
glossaries in the textile and fabric industries, defining “performance” fabrics as
“fabrics made for a variety of end-use applications, which provide functional qualities,
such as moisture management, UV protection, anti-microbial, thermo-regulation,
and wind/water resistance.”6 She also submitted a number of printouts from
commercial websites, news articles, and blogs, demonstrating that performance

6 startupfashion.com/fabric-dictionary, www.textileglossary.com/terms/performance-fabrics,
and www.fabriclink.com/dictionaries/performanceglossary, attached to October 1, 2015
Office Action, TSDR pp. 2-6.
Serial Nos. 86670815 and 86670817
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fabrics have been (and continue to be) used in athletic wear, that over the past few
years, the market for products that include or comprise performance fabrics has
expanded to bedding products such as those identified in the applications, including
mattresses, pillows, sheets, pillowcases, and other textiles commonly associated with
beds, and that others in the bedding industry use the term “performance” to refer to
such products. A June 8, 2015 article titled “The Lefton Report: Performance goes to
bed,” published in STREET & SMITHS SPORTS BUSINESS DAILY GLOBAL JOURNAL,
explains:
You drive a performance car, while wearing a performance watch and
sunglasses, and after jamming the brakes with a performance athletic
shoe, your sweat is wicked away by the performance fabrics in your
socks and shirt.

Everywhere, but especially at the intersection of sports and commerce,
we’re living in a high-performance world. You can now purchase
everything from “performance eye drops” to “luxury performance
underwear,” much of it aimed at athletes or athlete wannabes.

However, until recently we were unaware of the existence or need for
performance sheets. …

Call it the Under Armour of bed linens. … Derma Therapy Sport has
launched a line of performance bedding, aimed at athletes and the
“athletic leisure lifestyle” market. … These are nylon/polyester blend,
USA-made, moisture-wicking sheets with a litany of claims, ranging
from the ability to eliminate night sweats ….7

Similarly, according to the “Our Story Why We Created Deepsport” webpage on
the Deepsport website, one of the company’s co-founders
had a good understanding of performance fabrics, so he set out to find
a solution [for his sister’s night sweats] targeted at wicking moisture

7 www.sportsbusinessdaily.com, April 14, 2016 Final Office Action, TSDR 29-30. Emphasis
added in all examples.
Serial Nos. 86670815 and 86670817
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and regulating body temperature. After hearing from many athletes
that they slept hot and women who were experiencing hot flashes at
night, a light bulb went off: if performance fabric wicks moisture and
regulates body temperature while you’re working out, why shouldn’t
there be performance fabric for bed sheets?8

An April 25, 2014 post by Chelsea Duckham on the Pillows.com blog entitled
“Bedding We Love – Performance Bedding” announces that “Pillows.com has
recently added performance bedding to our line! … These products are designed
to wick away moisture and keep your body at a regulated temperature.” Ms. Duckham
lists several products, including “SHEEX Bedding … SHEEX was inspired by the
performance fabrics worn by athletes and consumers alike to help wick away
moisture and keep athletes feeling cool. The idea of bringing this type of fabric into
the bedroom was developed by SHEEX for better sleep.”9
Other references to Sheex include:
• A September 16, 2011 article titled “Ex-basketball star aims to score with
stretchy bedsheets,” posted on the philly.com website, leads with a
photograph of bedding above the caption “Michelle Marciniak, former
basketball pro, saw the potential of microfiber performance material as
cozy bedding.” The article explains, “Marciniak is hoping to score with
Sheex, a new kind of high-tech bedsheets made of performance fabric
instead of cotton.”10

• A September 14, 2011 article in the NEW YORK TIMES titled “Lights Out,
Game On” highlights the reporter’s experience with SHEEX sheets: “Last
night I slept on athletic shorts. Or more accurately, I slept on the stuff
athletic shorts are made of: high-tech performance fabric, the sort of
super-Lycra that goes into the uniforms of, say, basketball players.” The
article also displays a picture of Sheex’s founders above the caption

8 www.deepsport.com, October 25, 2016 Denial of Request for Reconsideration, 6 TTABVUE
11-12.
9 www.blogs.pillow.com, April 14, 2016 Final Office Action, TSDR 26-28.
10 www.articles.philly.com, October 25, 2016 Denial of Request for Reconsideration, 6
TTABVUE 3-4.
Serial Nos. 86670815 and 86670817
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“Michelle Marciniak, left, and Susan Walvius, former women’s basketball
coaches, are now in business, making sheets out of the high-tech
performance fabric athletic uniforms are made from.”11

• A December 23, 2014 article by Tara Donaldson on SJ Sourcing Journal
titled “Bedding Takes on Activewear Properties” explains “Performance
properties are no longer solely for apparel – bedding now incorporates some
of the smart traits consumers seek from activewear. Former college
basketball coaches Michelle Marciniak and Susan Walvius, co-founders of
performance bedding and sleepwear company, Sheex, developed
patented smart bedding with optical thermal conditions. … Sheex has
grown from performance bed sheets to a full line of “top of the bed”
performance cotton, fleece and sleepwear … Marciniak said she expects
the performance bedding category to grow ….”12

• The landing page for the Sheex website touts “THE WORLD’S FIRST AND
ONLY PERFORMANCE BEDDING” and provides a link for customers
to “SHOP PERFORMANCE BEDDING.”13

Other examples of third-party use of the term “performance” to refer to specific
bedding products include:
• The aforementioned NEW YORK TIMES article: “[t]here are also odor-
blocking sheets, like Therapedic AlwaysFresh (ideal for college students
who do their laundry only on term breaks) and a host of mattresses
covered with CoolMax (the performance fabric that Sheex makers hope
to trump)… And Outlast sheets, made from yet another performance
fabric, ‘balance the microclimate under the covers.’”14

• The webpage from bedding retailer Dream Soft Bedware offers a
“Mattress Protector – DreamFit Degree 4 DreamCool Waterproof

11 www.nytimes.com, October 25, 2016 Denial of Request for Reconsideration, 9 TTABVUE
18-19, 8 TTABVUE 2.
12 www.sourcingjournalonline.com, October 25, 2016 Denial of Request for Reconsideration,
9 TTABVUE 12-13.
13 www.sheex.com, October 25, 2016 Denial of Request for Reconsideration, 9 TTABVUE 7.
14 www.nytimes.com October 25, 2016 Denial of Request for Reconsideration, 9 TTABVUE
21.
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Performance Fabric” featuring a “Patented moisture-wicking and
cooling fiber technology.”15

• The “Product Description” for a three-piece bedding set on the
BreatheableBaby website explains “[t]his sheet’s performance fabric is
moisture-wicking and keeps baby breathably cool and comfortable.”16

• The webpage from bed sheet retailer Peach Skin Sheets touts “20 Benefits
of The Original PeachSkinSheets Performance Sleep Fabric” including
“A 21st Century SMART Fabric…the Latest in High Performance Sleep
Technology Textiles,” “Body Temperature and Moisture Management
Properties,” “Perfect for Night Sweats … Athletic Grade Performance
Fabric Wicks Away Moisture Rather than Just Absorbing Like Cotton.”17

• The webpage for bedding retailer Natural Comfort offers a “Natural
Comfort Allergy-Shield Hypoallergenic Performance Anti-bacterial
Waterproof Fabric Barrier Mattress Protector” featuring
“Hypoallergenic performance fabric.”18

• Retailer Thriftcat sells “Breathe Performance Bedding Sheet Set …
[which] help[s] regulate the temperature of your body while you sleep by
delivering evenly balanced air circulation.”19

Applicant itself has used “performance” to describe its bedding in the same
sense―likening it to performance fabrics and performance athletic wear. For
example, in an article titled “Bedgear Unveils Exciting New Performance Bedding
Offerings,” Sleep Retailer magazine attributes the following quote to Eugene Aletto,
Applicant’s founder and CEO: “As pioneers in the performance bedding category,

15 www.dreamsoftbedware.com, October 25, 2016 Denial of Request for Reconsideration, 8
TTABVUE 8-9.
16 www.breathablebaby.com, October 25, 2016 Denial of Request for Reconsideration, 8
TTABVUE 11-13.
17 www.peachskinsheets.com, October 25, 2016 Denial of Request for Reconsideration, 8
TTABVUE 15-16.
18 www.naturalcomfortcompany.com, October 25, 2016 Denial of Request for
Reconsideration, 7 TTABVUE 13 – 6 TTABVUE 2.
19 www.thriftcat.org, October 25, 2016 Denial of Request for Reconsideration, 6 TTABVUE 8.
Serial Nos. 86670815 and 86670817
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we’re constantly developing innovative, new ways to provide consumers with only the
best in performance sleep and recovery.”20 Further, the “Company Philosophy”
section of Applicant’s website states that Applicant “is a leading manufacturer of
performance bedding essentials,” offering a “comprehensive selection of
performance pillows, pillow protectors, mattress protectors and mattress
encasements [that] harness similar cutting-edge technologies to those used in
performance athletic wear.”21 In addition, the “Performance Sheets and
Blankets” webpage on Applicant’s website lists “Performance Sheets Sets” along
with Pillowcase Separates” and “Blankets” as the three available product
categories,22 and the “Performance Mattress Protectors & Toppers” webpage on
Applicant’s website lists “Performance Pillow Protectors” and “Performance
Mattress Protectors” along with “Mattress Encasements” and “Mattress Toppers”
as the four available product categories.23 The record also includes screenshots from
Applicant’s website displaying some of Applicant’s bedding products, such as the “6.0
VER-TEX TEMPERATURE REGULATING PERFORMANCE MATTRESS
PROTECTOR,” the “5.0 DRI-TEC MOISTURE WICKING PERFORMANCE

20 www.bedroomretailers.com, October 25, 2016 Denial of Request for Reconsideration, 7
TTABVUE 8-9.
21 April 14, 2016 Final Office Action, TSDR 3.
22 April 14, 2016 Final Office Action, TSDR 5.
23 April 14, 2016 Final Office Action, TSDR 11.
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MATTRESS PROTECTOR,” the “MIST 0.0 PERFORMANCE PILLOW,” and “DRI-
TEC MOISTURE WICKING PERFORMANCE SHEETS.”24
This evidence demonstrates that Applicant and various third parties use the term
PERFORMANCE descriptively to identify bedding products incorporating fabrics
which have body temperature and moisture management properties.
Applicant points to its list of PERFORMANCE-inclusive registrations for bedding
products, all of which issued to Applicant in 2013 and 2014 and do not include a
disclaimer of the term PERFORMANCE, to support its position that the term is
suggestive, rather than descriptive of the identified bedding products. However, in
addition to the evidence outlined above, the Examining Attorney submitted several
use-based third-party registrations that issued between 2009 and 2015 for identical
and related goods in which the term PERFORMANCE has been disclaimed or
registered under Section 2(f) (e.g., Reg. No. 3632848 for SHEEX PERFORMANCE
SHEETS (PERFORMANCE SHEETS disclaimed) for inter alia pillow cases and
pillow covers; Reg. No. 4681703 for ADVANCED PERFORMANCE LINENS
(PERFORMANCE LINENS disclaimed) for, inter alia, bed sheets, bed blankets, and
bed covers; and Reg. No. 4029640 for NANOFIBRE PERFORMANCE TEXTILES and
Design (NANOFIBRE PERFORMANCE TEXTILES disclaimed) for, inter alia,
comforters, blankets, bed sheets, pillows, mattress covers)). Third-party registrations
featuring goods that are the same as or similar to an applicant’s goods are probative

24 April 14, 2016 Final Office Action TSDR 12-13; April 14, 2016 Final Office Action TSDR
15, 18 (Serial No. 86670817).
Serial Nos. 86670815 and 86670817
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evidence on the issue of descriptiveness of a word or term in the mark, where the
relevant word or term is disclaimed. See Inst. Nat’l des Appellations D’Origine v.
Vintners Int’l Co. Inc., 958 F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992); In re
Finisar Corp., 78 USPQ2d 1618, 1621 (TTAB 2006), aff’d per curiam, 223 Fed. App’x
984 (Fed. Cir. 2007). We also note Applicant’s recent registration for
PERFORMANCE PROTECTION for many of the same Class 24 bedding products
identified in the subject 86670815 Application, where Applicant claimed that the
entire mark had acquired distinctiveness under Section 2(f).25
Our primary reviewing court instructs that “[t]rademark rights are not static,”
and eligibility for registration must be determined on the basis of the facts and
evidence of record that exist at the time registration is sought. In re Chippendales
USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (citations omitted).
Given the evolution of performance fabrics from athletic wear to bedding products
over the past decade or so, as demonstrated above, it is not entirely surprising that
Applicant was able to register several PERFORMANCE-inclusive marks for bedding
products on the Principal Register in 2013 and 2014 without a disclaimer of the term
PERFORMANCE, even though at least a few registrations issued to Applicant’s
competitors, both before and after that time, with a disclaimer of the term. Thus, to
the extent PERFORMANCE might have been considered arbitrary or suggestive for
bedding products in 2013 and 2014, such that a disclaimer of that term was not
required, the entirety of the record supports a finding that PERFORMANCE has

25 Reg. No. 5020138 issued on August 16, 2016 with a disclaimer of PROTECTION.
Serial Nos. 86670815 and 86670817
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since lost its “distinguishing and origin denoting characteristics” with respect to
bedding products, and that “the relevant section of the purchasing public” now
considers PERFORMANCE “as nothing more than a descriptive designation
describing rather than identifying the [goods on] which it has been used.” In re Dig.
Research Inc., 4 USPQ2d 1242, 1243 (TTAB 1987) (quoting In re Int’l Spike, Inc., 190
USPQ 505, 507 (TTAB 1976) (citing DeWalt, Inc. v. Magna Power Tool Corp., 129
USPQ 275 (CCPA 1961)).
In sum, the record supports a finding that the word PERFORMANCE is merely
descriptive when used in connection with Applicant’s various bedding products in
both Class 20 and Class 24. The record demonstrates that the word PERFORMANCE
clearly and unambiguously describes a significant feature or characteristic of the
goods, namely, that they utilize or incorporate performance fabrics, and therefore
“provide functional qualities, such as moisture management, UV protection, anti-
microbial, thermo-regulation, and wind/water resistance” by which those fabrics are
defined. In view of this record, Applicant’s argument that a disclaimer should not be
required here because it was not required in several of Applicant’s prior registrations
that issued in 2013 and 2014, is unpersuasive.
Decision: The refusal to register Applicant’s mark PERFORMANCE based on
the requirement, made under Trademark Act § 6(a), for a disclaimer of
PERFORMANCE is affirmed in each application. However, this decision will be set
aside if Applicant submits the required disclaimer in each application to the Board
Serial Nos. 86670815 and 86670817
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within thirty days from the date of this decision.26 Trademark Rule 2.142(g), 37 CFR
§ 2.142(g).

26 In light of the existing disclaimer of PACK, the standardized printing format for the
required disclaimer text is as follows: “No claim is made to the exclusive right to use
PERFORMANCE or PACK apart from the mark as shown.” TMEP § 1213.08(a)(i) (Apr.
2017).