Bell Rock Growers, Inc.

Trademark Trial and Appeal Board

May 7, 2018

No. 86747927 (T.T.A.B. May. 7, 2018)

Mailed: May 7, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Bell Rock Growers, Inc.
_____

Serial No. 86747927
_____

Michelle Hon Donovan of Duane Morris LLP,
for Bell Rock Growers, Inc.
Linda M. Estrada, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
_____

Before Ritchie, Heasley and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Bell Rock Growers, Inc. (“Applicant”) seeks registration on the Principal Register
of the mark PET GRASS (in standard characters) under Section 2(f) of the Trademark
Act. 15 U.S.C. § 1052(f), for the following goods and services:1

1 Application Serial No. 86747927, filed on September 4, 2015, based on an allegation of (1) a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b), for the following goods in Class 31: “processed cereal grasses for animal
consumption; catnip; digestible chewing bones for animal consumption; edible small animal
treats; food for animals,” and (2) use in commerce under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), for the remaining identified Class 31 goods, as well as all of the Class 35
services. Applicant claims November 1998 as both the date of first use and the date of first
use in commerce for the Class 31 goods based on use in commerce. Applicant claims
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
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live wheat, oat, rye and barley grass; kits comprised of wheat, oat, rye
and barley grass seeds and growing medium; processed cereal grasses
for animal consumption; catnip; digestible chewing bones for animal
consumption; edible small animal treats; food for animals, in
International Class 31; and

online retail store services featuring pet supplies, pet toys, and pet food,
in International Class 35.

The Trademark Examining Attorney has refused registration of Applicant’s mark
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 of the goods and services identified in its
application, and that the mark has not acquired distinctiveness under Section 2(f) of
the Trademark Act.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. The appeal is fully briefed. We affirm the
refusal to register.3
I. Preliminary Matter – Evidentiary Objections
We initially turn to certain evidentiary objections lodged by the Trademark
Examining Attorney regarding evidence allegedly presented by Applicant for the first

November 5, 2015 as both the date of first use and the date of first use in commerce for the
Class 35 services.
2 During the prosecution of Applicant’s application, the Trademark Examining Attorney also
issued refusals under Section 2(d) of the Trademark Act and on the ground that Applicant’s
mark is generic for the identified goods and services. These two refusals, however, were
subsequently withdrawn.
3 Unless otherwise specified, all TTABVUE and Trademark Status and Document Retrieval
(“TSDR”) citations reference the docket and electronic file database for Application Serial No.
86747927. All citations to the TSDR database are to the downloadable PDF version of the
documents.
Serial No. 86747927
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time with its appeal brief. First, the Examining Attorney contends that Applicant
improperly seeks to introduce new evidence in its appeal brief by referring to
Registration No. 1881570 for the mark CAT GRASS PLUS, which was not made of
record prior to the appeal. Second, the Trademark Examining Attorney objects to
Applicant’s attempt to introduce “new or replacement hyperlinks” for web pages,
which were properly made of record by the Trademark Examining Attorney through
Office Actions dates December 29, 2015 and August 3, 2016. Specifically, the
Trademark Examining Attorney contends that Applicant refers to these “new or
replacement hyperlinks” to demonstrate that these web pages are no longer in use or
no longer contain references to the designation PET GRASS. The Trademark
Examining Attorney argues that Applicant did not raise this issue or provide any
evidence, such as corresponding or replacement screen captures for the web pages,
prior to the appeal.
It is well-settled that the record in an ex parte proceeding must be complete prior
to appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). With regard to the
Trademark Examining Attorney’s objection to the reference of Registration No.
1881570, we note that Applicant, in its reply brief, states that it did not intend to
introduce this registration as new evidence on appeal and any reference to it should
be disregarded.4 In view of the foregoing, no consideration will be given to this

4 Applicant’ Reply Brief, p. 4, 10 TTABVUE 5. Applicant further stated that “[c]onsideration
of the actual registration is unnecessary because the evidence of record clearly shows that
the CAT GRASS PLUS mark is a registered trademark through use of the ® symbol.” Id. The
fact that the documentary evidence submitted during prosecution of Applicant’s application
displays the ® symbol next to the phrase CAT GRASS PLUS is not evidence that the mark
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registration and the Trademark Examining Attorney’s objection regarding the
registration is deemed moot.
With regard to the “new or replacement” hyperlinks, the Board agrees with the
Trademark Examining Attorney that these hyperlinks should be given no
consideration. If Applicant believed that the hyperlinks provided by the Trademark
Examining Attorney in the December 29, 2015 and August 3, 2016 Office Actions
were no longer in use or no longer contained references to the designation PET
GRASS, Applicant should have responded to those Office Actions in a timely manner
during the course of prosecution or filed a written request with the Board to suspend
the appeal and remand the application so that Applicant could submit evidence that
the hyperlinks were no longer operative or no longer displayed the designation PET
GRASS pursuant to Trademark Rule 2.142(d). Applicant did not do so. Accordingly,
we cannot consider the evidence submitted for the first time with the appeal brief as
evidence in our analysis. In view thereof, the Examining Attorney’s evidentiary
objection with regard to the “new or replacement” hyperlinks is sustained.
II. Degree of Descriptiveness
Although the Examining Attorney has refused registration of Applicant’s applied-
for mark on the ground that the mark is merely descriptive of the identified goods
and services, Applicant, as noted above, filed its application seeking registration

is a federally registered trademark. Parties occasionally display the ® symbol with their
trademarks, when in fact, the trademark is not federally registered. If Applicant wanted to
make this registration of record, it should have done so prior to appeal by submitting a status
and title copy of the same.
Serial No. 86747927
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under Section 2(f) of the Trademark Act. As such, Applicant has effectively conceded
that its PET GRASS mark is merely descriptive. See The Cold War Museum, Inc. v.
Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009)
(“Where an applicant seeks registration on the basis of Section 2(f), the mark’s
descriptiveness is a nonissue; an applicant’s reliance on Section 2(f) during
prosecution presumes that the mark is descriptive.”). Therefore, the only issue before
us is whether Applicant’s evidence of acquired distinctiveness for the mark PET
GRASS is sufficient. See In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d
1262, 1264 (Fed. Cir. 2015); Yamaha Int’l Corp. v. Hoshino Gakki Co., 840 F.2d 1572,
6 USPQ2d 1001, 1006 (Fed. Cir. 1988).
The initial question before us in our analysis of whether PET GRASS has acquired
distinctiveness is the degree of descriptiveness of that phrase as used in connection
with Applicant’s goods and services. As noted below, the higher the degree of
descriptiveness of the designation in question, the higher the burden Applicant faces
in proving acquired distinctiveness. See Nazon v. Ghiorse, 119 USPQ2d 1178, 1186
(TTAB 2016).
A designation is merely descriptive under 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. See In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012). The wording need not immediately convey an
idea of each and every specific feature of the applicant’s goods or services in order to
be considered merely descriptive; it is enough that the terminology describes one
Serial No. 86747927
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significant attribute or function of the goods or services. See In re H.U.D.D.L.E., 216
USPQ 358, 359 (TTAB 1982); In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973).
The term “pet” means “any domesticated or tamed animal that is kept as a
companion and cared for affectionately.” (dictionary.infoplease.com/pet).5 The term
“grass” is defined as “1. any plant of the family Gramineae, having jointed stems,
sheathing leaves, and seedlike grains. Cf. grass family. 2. such plants collectively, as
when cultivated in lawns or used as pasture for grazing animals or cut and dried as
hay.” (dictionary.infoplease.com/grass).6 Each of the words comprising Applicant’s
proposed mark, “pet” and “grass,” is highly descriptive of the types of goods and
services offered by Applicant. Furthermore, when combined, the composite
terminology PET GRASS is, at the very least, highly descriptive of Applicant’s
products that include various types of grass that may be consumed by pets and the
online retail services offered by Applicant that presumably also feature such grass
products for pets. See, e.g., DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695
F.3d 1247, 103 USPQ2d 1753, 1759 (Fed. Cir. 2012) (finding SNAP SIMPLY SAFER
merely descriptive for cannulae, needles, and syringes); Remington Prods. Inc. v. N.
Am. Philips Corp., 892 F.2d 1576, 13 USPQ2d 1444, 1448 (Fed. Cir. 1990) (“travel
care” is merely descriptive in light of, among other evidence, advertisements using
the term descriptively); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1173 (TTAB 2013)
(holding SUPERJAWS merely descriptive for tools). No imagination is required to

5 December 29, 2015 Office Action, TSDR p. 57.
6 Id., TSDR p. 59.
Serial No. 86747927
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understand immediately that edible grass for pets sold under the designation PET
GRASS is just that, namely, an edible treat for pets that consists of grass. Similarly,
no imagination is required to understand that an online pet supplies and pet food
retail service provided under the designation PET GRASS provides edible goods for
pets in the nature of grass. See In re Sterotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087,
1089-90 (Fed. Cir. 2005) (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215,
217 (CCPA 1978) (“The major reasons for not protecting such [merely descriptive]
marks are: (1) to prevent the owner of a mark from inhibiting competition in the sale
of particular goods; and (2) to maintain freedom of the public to use the language
involved, thus avoiding the possibility of harassing infringement suits by the
registrant against others who use the mark when advertising or describing their own
products.”)).
Applicant’s specimens of record for both its Class 31 goods and Class 35 services,
as displayed below, also support the finding that Applicant’s PET GRASS mark, when
viewed in relation to the goods and services for which registration is sought, is merely
descriptive of those identified goods and services. The specimens plainly depict grass
for consumption by pets, as well as retail store services featuring grass for
consumption by pets.
Serial No. 86747927
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Class 31 Specimen of Use7

Class 35 Specimen of Use8

Similarly, Applicant’s own advertisements of record support the finding that
Applicant’s PET GRASS mark is highly descriptive of Applicant’s identified goods
and services. As an example:9

7 Application, TSDR p. 7.
8 Amendment to Allege Use, TSDR p. 5.
9 June 29, 2016 Response to Office Action, TSDR pp. 103 and 116.
Serial No. 86747927
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Additionally, the record includes numerous examples from various websites that
demonstrate third-party uses of the wording “pet grass” in connection with the goods
and services identified in Applicant’s application, as emphasized in the following:
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• bonnieplants.com/growing/growing-pet-grass/:10

“Both cats and dogs need a little grass in their diets, especially if they
do not spend a lot of time outdoors. So if you have a pet, growing pet
grass is a great idea.

“Growing pet grass is easy. Like other grasses, pet grass prefers full
sun and well-drained soil. However, for best growth, keep the potting
mix evenly moist. Use care when fertilizing. If grass yellows or growth
declines, water with Bonnie Herb & Vegetable Plant Food. It is made
from soybean oilseed extract and should not be off putting to a pet, nor
will it have a fishy or animal smell as do some organic formulas.”

• www.priscillaspetproducts.com:11

10 December 29, 2015 Office Action, TSDR p. 62.
11 Id., TSDR p. 70.
Serial No. 86747927
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• www.localharvest.org/cat-pet-grass-organic-seed-free-catnip-
C1497:12

Advertising “Cat & Pet Grass Organic seed & Free Catnip!” This evidence
includes a list of pet grass mixes.

• www.hgtv.com/design/outdoor-design/landscaping-and-
hardscaping/how-to-grow-pet-grass:13

12 August 19, 2016 Office Action, TSDR pp. 32-33.
13 December 29, 2015 Office Action, TSDR p. 76.
Serial No. 86747927
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• homeguides.sfgate.com/grow-own-pet-grass-68844:14

• rockymountainwheatgrass.com:15

• www.wheatgrasskits.com/petgrass.html:16

14 Id., TSDR p. 84.
15 Id., p. 88.
16 August 19, 2016 Office Action, TSDR p. 23.
Serial No. 86747927
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• www.araorganics.com/pets.php:17

• www.minnesotamicrogreens.com/products/pet-products:18

17 Id., TSDR p. 29.
18 Id., TSDR p. 37.
Serial No. 86747927
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• www.polypet.com.sg:19

In view of the foregoing, we conclude that Applicant’s proposed mark is highly
descriptive of Applicant’s goods and services under Section 2(e)(1).
III. Acquired Distinctiveness
Applicant bears the ultimate burden of proving acquired distinctiveness by a
preponderance of the evidence. See Yamaha v. Hoshino Gakki, 6 USPQ2d at 1005.
The amount of proof required to carry that burden increases when the wording sought
to be placed on the Principal Register under Section 2(f) is highly descriptive. See In
re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005); In re
Bongrain Int’l (Am.) Corp., 894 F.2d 1316, 13 USPQ2d 1727, 1729 (Fed. Cir. 1990);
In re Greenliant Sys. Ltd., 97 USPQ2d 1078, 1085 (TTAB 2010). Because we have

19 Id., TSDR p. 39.
Serial No. 86747927
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found that the wording PET GRASS is highly descriptive of Applicant’s goods and
services, Applicant’s burden of establishing acquired distinctiveness under Section
2(f) is commensurately high. See In re Steelbuilding.com, 75 USPQ2d at 1424.
Acquired distinctiveness is generally understood to mean an acquired “mental
association in buyers’ minds between the alleged mark and a single source of the
product.” J. Thomas McCarthy, 2 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 15:5 (5th ed. March 2018 update). See also In re Steelbuilding.com, 75
USPQ2d at 1422 (“To show that a mark has acquired distinctiveness, an applicant
must demonstrate that the relevant public understands the primary significance of
the mark as identifying the source of a product or service rather than the product or
service itself.”) quoted in Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs.,
Inc., 123 USPQ2d 1844, 1851 (TTAB 2017). Evidence of acquired distinctiveness can
include the length of use of the mark, advertising expenditures, sales, survey
evidence, and affidavits asserting source-indicating recognition. In re
Steelbuilding.com, 75 USPQ2d at 1424.
We determine whether Applicant’s mark has acquired distinctiveness based on
the entire record, again keeping in mind that Applicant has the “ultimate burden of
persuasion” as to acquired distinctiveness. See Yamaha v. Hoshino Gakki, 6 USPQ2d
at 1004.
In support of its claim of acquired distinctiveness, Applicant submitted the
declaration of Caleb Barber, Applicant’s marketing director (the “Barber
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Declaration”), stating, in substantive part, that:20
Bell Rock coined the term PET GRASS and began using it in connection
with wheat grass products as early as November 1998;

The PET GRASS brand products have been sold in every major city in
all 50 states, in over 4,500 retail stores across the United States;

The PET GRASS products are available at every Petco and PetSmart
store in the U.S. as well as Pet Valu, Pet Supplies Plus and other pet
product specialty stores throughout the United States;

PET GRASS brand products have also been sold through a variety of
online retailers, which include retailers such as Petco, PetSmart,
Amazon, Pet 360 and Chewy.com;

Although product price points are low for goods of this nature, Bell Rock
has enjoyed considerable sales due to the large volume of goods sold;

Wholesale sales in the United States of products sold in association with
the PET GRASS mark have exceeded $21.2 million over the past six
years, broken out as follows:

Estimated retail sales are at almost $53 million dollars in the past six
years.

Total advertising sums expended to drive awareness of PET GRASS
branded products in the United States exceeded $354,000 over the past
five years;

The majority of Bell Rock’s advertising has occurred on the internet, in
print advertisements, tradeshows, and in store retailer promotions;

The PET GRASS products have also been advertised in a number of pet

20 June 29, 2016 Response to Office Action, TSDR pp. 88-92.
Serial No. 86747927
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and cat magazines with national circulation in the United States,
including “Pet Age Magazine,” “Pet Business Magazine,” “Pet Product
New Internationally,” and “Modern Cat Magazine”;

The PET GRASS mark is displayed on the bellrockgrowers.com website,
and has been displayed on this website since at least 2002;

The PET GRASS mark is also displayed on the petgrass.com website
which was launched in November 2015;

Bell Rock advertises its PET GRASS branded products on its Bell Rock
Facebook page since April 2011, and now has 6,707 “likes”;

Bell Rock recently launched a separate Pet Grass Facebook page on
September 28, 2015 to exclusively feature its Pet Grass products and
already has 3,806 “likes”;

Bell Rock advertises its PET GRASS branded products under its
PetGreens Twitter account since March 2011 and has also started a
separate Twitter account exclusively for the Pet Grass products under
the name PetGrassLove;

The PET GRASS House Blend won the 2013 Pet Business Industry
Recognition Award. Each year, Pet Business honors the ground-
breaking products that are driving the growth in the pet care market;

A picture of the PET GRASS product was also featured in the BuzzFeed
100 Most Important Cat Picture of All Times as the very first image in
the article; and

The PET GRASS product was also included in a New York Times article
on providing wheatgrass to pets.

Applicant attached various exhibits to the Barber Declaration in support of Mr.
Barber’s statements.
Having carefully reviewed the totality of the evidence of record, we find that
Applicant has failed to establish acquired distinctiveness of its proposed mark within
the meaning of Section 2(f). Applicant contends that it coined the term PET GRASS
and has used its PET GRASS mark since November 1998 in connection with its wheat
Serial No. 86747927
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grass products. To the extent that Applicant is arguing that, because it allegedly
coined the phrase PET GRASS, such action supports a finding that the phrase has
acquired distinctiveness, we find such argument unpersuasive. Even if Applicant
were indeed the first or only user of the term PET GRASS used in connection with
“pet food,” the PET GRASS designation nonetheless “projects a merely descriptive
connotation” that Applicant’s pet food product consists of grass. See In re Interco Inc.,
29 USPQ2d 2037, 2039 (TTAB 1993). Moreover, a word need not be in common use
in an industry to be descriptive, and the mere fact that an applicant is the first to use
a descriptive term in connection with its goods or services, does not imbue the term
with source-identifying significance. In re Nat’l Shooting Sports Found., Inc., 219
USPQ 1018, 1020 (TTAB 1983) (the fact that the applicant may be the first to use a
merely descriptive designation does not “justify registration if the term projects only
merely descriptive significance”).
Furthermore, it is well settled that an applicant’s use of wording for a long time
does not necessarily establish that the wording has acquired distinctiveness as a
mark. See In re Gibson Guitar Corp., 61 USPQ2d 1948, 1952 (TTAB 2001) (66 years
of use); see also Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d
1750, 1766 (TTAB 2013) (21 years); In re Packaging Specialists, Inc., 221 USPQ 917,
920 (TTAB 1984) (16 years); In re The Interstate Folding Box Co., 167 USPQ 241, 245
(TTAB 1970) (32 years). In the present case, Applicant’s use since 1998 is outweighed
by the other evidence showing that the phrase “PET GRASS” is highly descriptive of
Applicant’s goods and services.
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While Applicant expended approximately $354,000 over the past five years on
sales and marketing and generated approximately $21 million in wholesale revenue
and $53 million in retail sales over the last six years, Applicant provided no context
for how these figures compare to the volume of sales and revenue by other pet supply
companies. We similarly cannot ascertain the reach of Applicant’s advertising. But
even if those figures prove to be substantial, it is not in itself necessarily enough to
prove secondary meaning, particularly when the mark sought to be registered is
highly descriptive of identified goods and services, as is the case here. In re Bos. Beer
Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999) (claim based on annual
sales of approximately 85 million dollars, and annual advertising expenditures in
excess of ten million dollars, not sufficient to establish acquired distinctiveness in
view of highly descriptive nature of mark). In any event, the ultimate test in
determining whether a designation has acquired distinctiveness is applicant’s
success, rather than its efforts, in educating the public to associate the proposed mark
with a single source. In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ
417, 422 (Fed. Cir. 1985); In re LC Trademarks, Inc., 121 USPQ2d 1197, 1208 (TTAB
2016); In re Pennzoil Prods. Co., 20 USPQ2d 1753, 1760-61 (TTAB 1991). The record
is devoid of information regarding the number of visitors to Applicant’s booths at
trade shows, the volume of unique visitors to Applicant’s websites, the extent of
national circulation of the trade magazines in which Applicant’s advertisements have
appeared and the amount of Applicant’s advertising in such printed publications.
With regard to Applicant’s Bell Rock and Pet Grass Facebook pages, Applicant
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contends that these pages have received 6,707 and 3,806 “likes”, respectively.
Applicant, however, has not provided any context for these figures, so we cannot
measure against it how many Facebook “likes” its competitors may have received via
their own Facebook accounts. Similarly, with regard to Applicant’s PetGreens and
PetGrassLove Twitter accounts, Applicant has failed to indicate how many persons
follow the accounts or how many consumers have been exposed to the Twitter
accounts. Simply put, we are without enough information to determine the degree to
which Applicant’s Facebook “likes” and Twitter followers are significant.
In considering Applicant’s unsolicited media coverage of record, namely, two
newspaper articles and an allegedly prestigious product award, we find that this
media coverage and accolade are insufficient in volume to support Applicant’s claim
of acquired distinctiveness.
Furthermore, the nature and number of third-party descriptive uses in the record
indicate that use by Applicant has not been “substantially exclusive” as is required
for a showing of acquired distinctiveness under Section 2(f). Non-exclusive use
presents a serious problem for Applicant in obtaining trademark rights in a
designation that is not inherently distinctive, because it interferes with the relevant
public’s perception of the designation as an indicator of a single source. See, e.g., Levi
Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984)
(“When the record shows that purchasers are confronted with more than one (let
alone numerous) independent users of a term or device, an application for registration
under Section 2(f) cannot be successful, for distinctiveness on which purchasers may
Serial No. 86747927
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rely is lacking under such circumstances.”); Ayoub Inc. v. ACS Ayoub Carpet Serv.,
118 USPQ2d 1392, 1404 (TTAB 2016) (finding that, because of widespread third-
party uses of the surname Ayoub in connection with rug, carpet and flooring
businesses, applicant’s use of the applied-for mark AYOUB was not “substantially
exclusive” and thus the mark had not acquired distinctiveness in connection with
applicant’s identified carpet and rug services); Miller v. Miller, 105 USPQ2d 1615,
1625 (TTAB 2013) (“[I]t is clear from the record that applicant has not established
that her use of MILLER is substantially exclusive as required by Section 2(f).”).
In view of the foregoing, we find that Applicant has failed to submit evidence that
demonstrates that consumers perceive the term PET GRASS as pointing uniquely to
Applicant as the source of its identified goods and services, and thus Applicant has
failed to submit sufficient evidence to establish that the designation has acquired
distinctiveness under Section 2(f) of the Trademark Act.21
Decision: The refusal to register Applicant’s PET GRASS mark on the ground
that the designation is merely descriptive of the identified goods and services and has
not acquired distinctiveness under Section 2(f) of the Trademark Act is affirmed.

21 With regard to the Class 31 goods on which Applicant has claimed a bona fide intent to use
its mark, i.e., “processed cereal grasses for animal consumption; catnip; digestible chewing
bones for animal consumption; edible small animal treats; food for animals,” Applicant
argues that since its mark has acquired distinctiveness in connection with the goods and
services that are currently offered in commerce, this acquired distinctiveness “will transfer
to its intent to use goods.” Applicant’s Appeal Brief p. 8, 7 TTABVUE 9. Applicant’s argument
is not persuasive since we have found that the proposed mark is highly descriptive in the
context of all of the identified good and services and Applicant has not met its burden to
establish that the proposed mark has acquired distinctiveness in connection with any of the
goods and services identified in its application.