Belnick, Inc.

Trademark Trial and Appeal Board

Jun 10, 2015

No. 85973023 (T.T.A.B. Jun. 10, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 10, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Belnick, Inc.
_____

Serial Nos. 85973023; 85973044; 85973069; and 85973100
_____

Walter A. Rodgers of Rodgers & Rodgers,
for Belnick, Inc.
Timothy Finnegan, Trademark Examining Attorney, Law Office 104,
Chris Doninger, Managing Attorney.
_____

Before Quinn, Bergsman and Goodman,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
Belnick, Inc. (“Applicant”) seeks registration on the Principal Register of the
designations SCHOOLFURNITURE4LESS,1 CHURCHCHAIRS4LESS,2

1 Application Serial No. 85973023, filed June 28, 2013 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging first use anywhere and first use in commerce on April 19,
2010.
2 Application Serial No. 85973044, filed June 28, 2013 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging first use anywhere and first use in commerce on April 19,
2010.
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

2

STACKCHAIRS4LESS,3 and FOLDINGCHAIRS4LESS,4 (all in standard
characters), all for “on-line retail store services featuring furniture” in International
Class 35.
The Trademark Examining Attorney refused registration in each application
under Sections 1, 2, 3, and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, 1053,
and 1127, on the ground that Applicant’s designation “is merely informational and
constitutes a common term or slogan that is commonly used by those in Applicant’s
particular trade or industry” and that “it does not function as a service mark to
indicate the source of Applicant’s services and to identify and distinguish them from
others.” (Brief, 6 TTABVUE 3).5
When the refusal was made final in each application, Applicant appealed.
Applicant and the Examining Attorney filed briefs.
The appeals involve common issues of law and fact, and there is certain
overlapping evidence in the application files. Accordingly, we will decide the appeals
in this single opinion. See In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009);
TBMP § 1214 (2014).

3 Application Serial No. 85973069, filed June 28, 2013 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging first use anywhere and first use in commerce on April 29,
2010. We note the discrepancy in the first use dates between this application and the other
three, but have no way of knowing whether the discrepancy is intentional or a
typographical error.
4 Application Serial No. 85973100, filed June 28, 2013 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging first use anywhere and first use in commerce on April 19,
2010.
5 Citations to the briefs in this opinion refer to the TTABVUE docket entry number, and the
electronic page number where the argument appears. TTABVUE is the Board’s electronic
docketing system.
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

3

The Arguments
The Examining Attorney maintains in each application that Applicant’s
designation is commonly used in the furniture industry by retailers to indicate that
they offer furniture for sale that is inexpensive; thus, according to the Examining
Attorney, customers will perceive each of Applicant’s “—4LESS” designations as a
common informational phrase and not a source indicator. In support of each refusal
the Examining Attorney introduced excerpts of numerous third-party websites
showing furniture retailers using similar designations.
Applicant argues that “the threshold of distinctiveness necessary for a mark to
qualify as a trademark is quite low” and that “[i]nclusion of ‘4 LESS’ in applicant’s
mark is believed to present a visual variation from the generic term ‘FOR LESS’ in
that it is capable, at least at some time in the future, to function as a service mark.”
(Brief, 4 TTABVUE 3).6 Applicant also relies on the existence of third-party
registrations of marks that include the terminology “4 LESS” or “FOR LESS,”
including some comprising this terminology coupled with a beginning generic term.

6 Applicant’s contention that each of its designations “is capable, at least at some time in
the future, to function as a service mark” is one more appropriate for arguing registrability
on the Supplemental Register. Applicant is reminded that it is seeking to register its
designations on the Principal Register, which is reserved for marks that are inherently
distinctive or that have acquired distinctiveness. In any event, given the nature of the
refusal and the Examining Attorney’s arguments relating thereto, it is clear that the
Examining Attorney would not allow registration on the Supplemental Register either. In
this connection it should be noted that an applicant cannot overcome a refusal of
registration issued on the ground that the matter is merely informational by attempting to
amend the application to seek registration on the Supplemental Register or pursuant to
Section 2(f). See In re Eagle Crest, 96 USPQ2d 1227, 1229 (TTAB 2010).
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

4

The specimen for each application is reproduced below.

In each instance, Applicant claims that it sells furniture at the lowest prices.
The Law
To function as a service mark, a designation must be used in a manner that
would be perceived by purchasers as identifying and distinguishing the source of
the services recited in the application. See generally TMEP §1301.02(a) (2015). Use
of a designation or slogan to convey advertising or promotional information, rather
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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than to identify and indicate the source of the services, is not service mark use. See
In re Standard Oil Co., 275 F.2d 945, 125 USPQ 227 (CCPA 1960) (GUARANTEED
STARTING found to be ordinary words that convey information about the services,
not a service mark for the services of “winterizing” motor vehicles); In re Melville
Corp., 228 USPQ 970 (TTAB 1986) (BRAND NAMES FOR LESS found to be
informational phrase that does not function as a mark for retail store services); In re
Brock Residence Inns, Inc., 222 USPQ 920 (TTAB 1984) (FOR A DAY, A WEEK, A
MONTH OR MORE so highly descriptive and informational in nature that
purchasers would be unlikely to perceive it as an indicator of the source of hotel
services); In re Wakefern Food Corp., 222 USPQ 76 (TTAB 1984) (WHY PAY MORE
found to be a common commercial phrase that does not serve to identify grocery
store services); In re Gilbert Eiseman, P.C., 220 USPQ 89 (TTAB 1983) (IN ONE
DAY not used as source identifier but merely as a component of advertising matter
that conveyed a characteristic of applicant’s plastic surgery services); In re
European-American Bank & Trust Co., 201 USPQ 788 (TTAB 1979) (slogan THINK
ABOUT IT found to be an informational or instructional phrase that would not be
perceived as a mark for banking services); In re Restonic Corp., 189 USPQ 248
(TTAB 1975) (phrase NICE TO GET HOME TO used merely to advertise goods
manufactured and sold by applicant’s franchisees does not serve to identify
franchising services).
Slogans and other terms that are merely informational in nature, or common
laudatory phrases or statements that would ordinarily be used in business or in the
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

6

particular trade or industry, are not registrable. See In re AOP LLC, 107 USPQ2d
1644, 1655 (TTAB 2013) (finding AOP merely informational and not source-
identifying for wine as it informs consumers of a certification process); In re T.S.
Designs, Inc., 95 USPQ2d 1669 (TTAB 2010) (holding CLOTHING FACTS merely
an informational phrase and not a source identifier based on the likely consumer
perception of the phrase used on a clothing label in connection with manufacturing
information reminiscent of the “Nutrition Facts” label required for food products by
the United States Food and Drug Administration); In re Aerospace Optics, Inc., 78
USPQ2d 1861 (TTAB 2006) (holding SPECTRUM fails to function as a mark for
illuminated pushbutton switches, where the mark is used in a manner that merely
informs potential purchasers of the multiple color feature of the goods, and the
coloring and font in which the mark is displayed are not sufficient to imbue the
term with source-identifying significance or to set it apart from other informational
wording); In re Volvo Cars of N. Am., Inc., 46 USPQ2d 1455 (TTAB 1998) (holding
DRIVE SAFELY merely an informational phrase or slogan that would be perceived
as an everyday, commonplace safety admonition that does not function as mark); In
re Manco Inc., 24 USPQ2d 1938, 1942 (TTAB 1992) (holding THINK GREEN and
design for weather stripping and paper products “merely an informational slogan
devoid of trademark significance”); In re Remington Prods., Inc., 3 USPQ2d 1714
(TTAB 1987) (holding PROUDLY MADE IN USA, for electric shavers, merely an
informational slogan that is incapable of functioning as a mark, notwithstanding
use of letters “TM” in connection with prominent display of slogan on packages for
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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the goods and claim of acquired distinctiveness); In re Tilcon Warren, Inc., 221
USPQ 86 (TTAB 1984) (holding WATCH THAT CHILD for construction material
merely informational and not registrable notwithstanding long use); In re
Schwauss, 217 USPQ 361, 362 (TTAB 1983) (finding FRAGILE for labels and
bumper stickers merely informational and devoid of any source-identifying
function). See also TMEP §1202.04.
The critical inquiry in determining whether a slogan or term functions as a
trademark or service mark is how the proposed mark would be perceived by the
relevant public. In re Eagle Crest, Inc. 96 USPQ2d at 1229-30 (holding ONCE A
MARINE, ALWAYS A MARINE to be an “old and familiar Marine expression…that
should remain free for all to use”); see In re Phoseon Technology Inc., 103 USPQ2d
1822, 1827 (TTAB 2012) (noting the critical inquiry in determining whether a mark,
as used on the specimen, functions as a trademark is the “commercial impression it
makes on the relevant public (e.g., whether the term sought to be registered would
be perceived as a mark identifying the source of the goods or merely as an
informational phrase).”). The more commonly a phrase is used in everyday parlance,
the less likely the public will use it to identify only one source and the less likely the
phrase will be recognized by purchasers as a trademark or service mark. In re Eagle
Crest, 96 USPQ2d at 1229-30 (noting that “‘[a]s a matter of competitive policy, it
should be close to impossible for one competitor to achieve exclusive rights’ in
common phrases or slogans.” (quoting J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition, §7.23 (4th ed. 2010))). Because the function of
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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a trademark or a service mark is to identify a single commercial source for
particular goods or services, if consumers are accustomed to seeing a slogan used in
connection with goods/services from many different sources, it is likely that
consumers would not view the slogan as a source identifier for such goods/services.
Id. at 1230.
As indicated earlier, an applicant cannot overcome a refusal of trademark
registration issued on the ground that the matter is merely informational by
attempting to amend the application to seek registration on the Supplemental
Register or pursuant to Section 2(f). See In re Eagle Crest, 96 USPQ2d at 1229-30
(noting that “[s]logans and other terms that are considered to be merely
informational in nature, or to be common laudatory phrases or statements that
would ordinarily be used in business or in the particular trade or industry, are not
registrable”). In support of the refusal, the Examining Attorney must provide
evidence that the mark is a slogan or term incapable of being perceived as a
trademark or service mark. This support may include evidence of decorative or
informational use by other manufacturers on goods or services of a similar nature
and evidence that the term or slogan is frequently used by parties in connection
with the sale of their goods or services. See id. at 1230 (noting because consumers
would be accustomed to seeing the phrase ONCE A MARINE, ALWAYS A MARINE
“displayed on clothing items from many different sources, they could not view the
slogan as a trademark indicating source of the clothing only in applicant”); In re
Wakefern Food Corp., 222 USPQ 76, 78 (TTAB 1984) (finding the relatively common
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

9

merchandising slogan WHY PAY MORE! does not function as a mark which
identifies and distinguishes applicant’s services from others).
The Board in the past considered a mark very similar to the one at issue herein.
In the case of In re Melville Corp., supra, the Examining Attorney refused
registration, in pertinent part, on the ground that the designation BRAND NAMES
FOR LESS, when used in connection with “retail store services in the clothing
field,” did not function as a mark to identify and distinguish applicant’s services and
was therefore unregistrable. The Board agreed, finding that the phrase would not
be viewed by consumers as a service mark but rather as a merchandising slogan
using common ordinary words merely to convey information about applicant’s
services. In making this determination, the Board relied upon third-party uses such
as “Brand name furniture at low low discount prices,” and “QUALITY BRAND
CLOTHING AT LOW DISCOUNT PRICES,” stating that the examples “show that
it is a relatively common practice in the retail industry to make the claim that a
merchant sells brand name merchandise for less than the usual price.” Id. The
Board observed that in an environment where consumers are accustomed to the use
by merchants of similar information phrases, the fact that the applicant conveyed
similar information in a slightly different way than others was not determinative.
The Evidence
As indicated above, there is overlapping evidence in the four appeals. The
Examining Attorney introduced evidence in each application bearing on third-party
usage of the terminology “—4 Less” and “—For Less” in the retail furniture trade.
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

10

(Office actions dated 11/3/2013, 3/16/2014, 5/11/2014 in Ser. No. 85973023; Office
actions dated 11/3/2013 and 5/26/2014 in Ser. No. 85973044; Office actions dated
11/3/2013 and 5/26/2014 in Ser. Nos. 85973069 and 85973100).7 A representative
sample includes the following uses:
Furniture 4 Less

Great Furniture 4 Less

Offering the best reception furniture at the lowest price
with the fastest shipping is what you can expect from
ReceptionFurniture4Less!

Modern Furniture 4 Less

Furniture For Less

Furniture 4 A Lot Less

Furniture For Less

Your Furniture 4 Less
Brand New Brand Name Furniture at Everyday Low
Prices

Furniture & Mattresses 4 Less
Furniture and Mattresses for Less…A LOT LESS!

7 To the extent that certain evidence is different in the applications, it is cumulative in
nature.
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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Furniture 4 Less
The True Half Price Store

Restaurant Furniture 4 Less

EZ Home Furnishing For Less
Elegant Furnishing For Less

Family Furniture 4 Less

Bean Bag Chairs for Less

Furniture 4 Less
At Furniture 4 Less, you can furnish every room in your
home without paying a lot of money.

Mattress & Furniture For Less

Mid Century Furniture 4 Less

Premium Furniture For Less

Applicant, for its part, introduced the same third-party registration evidence in
each application. More specifically, Applicant states that the Office previously
registered 102 marks incorporating the terminology “4 LESS” or “FOR LESS.” In
this connection Applicant furnished copies of 23 third-party registrations of marks
for services in Class 35. Each mark includes the terminology “4 LESS” or “FOR
LESS” generally following highly descriptive or generic terminology. Applicant
contends that the state of the register is an indication that Applicant’s proposed
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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marks, which are similar to certain registered marks, are capable of functioning as
service marks.
The Examining Attorney also introduced evidence bearing on the specific generic
term in each of Applicant’s designations sought to be registered. Given that the
present refusal pertains to each designation as a whole, and the critical issue
centers on the use of similar designations in the industry, we see no reason to focus
attention on the genericness of the beginning term in each of Applicant’s
designations. See Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., ___F.3d___,
No. 14-1517, 2015 WL 2337417 (Fed. Cir. May 15, 2015), citing H. Marvin Ginn
Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ2d 528, 530 (Fed.
Cir. 1986) (The test for genericness is a two-step inquiry: first, determine the genus
of goods or services at issue; and second, determine whether the mark in question is
understood by the relevant public primarily to refer to that genus of goods or
services). Suffice it to say that the evidence in each case clearly establishes that the
beginning term in each designation is the name of a type or category of furniture,
and that purchasers clearly would use or understand each of the terms “school
furniture,” “church chairs,” “stack chairs,” and “folding chairs” as the name of a type
or category of furniture. Applicant does not dispute this point.
The Analysis
Each of Applicant’s designations comprises a generic term followed by the
designation “4 LESS.” The lack of spaces between the components of each
designation, and the use of the number “4” rather than the word “FOR” in each of
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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the designations, either individually or collectively, do not transform each
informational designation into a distinctive mark. The record shows pervasive use
in the furniture trade of designations that are very similar to Applicant’s
designations; the designations “4 Less” and “For Less” have been shown to be used
interchangeably, and we consider them to be generic equivalents indicating
discount pricing.8 We find that the Examining Attorney’s evidence shows that it is a
common practice in the retail furniture industry for a retailer to claim, through use
of “—4 Less” and “—For Less” slogans, that it sells furniture for less than the usual
price. Given this pervasive use by many different sources, consumers are
accustomed to seeing designations comprising the name of a specific type of
furniture followed by “4 Less” or “For Less,” and they likely will not view such
designations as source indicators. Accordingly, consumers will perceive each of
Applicant’s designations as merchandising slogans to convey information about
Applicant’s on-line retail store services featuring furniture; namely, that Applicant
offers lower furniture prices than its competitors. See In re Eagle Crest, 96 USPQ2d
at 1229-30; In re Melville, 228 USPQ at 971-72; In re Wakefern Food Corp., 222
USPQ at 78-9.
With respect to Applicant’s “State of the Register” argument, we initially point
out that, in certain registrations, the terminology “4 LESS” or “FOR LESS” (or the
entire literary component in a composite mark, e.g., “TIRES 4 LESS” and “SEW 4
LESS”) is disclaimed. (See, e.g., Reg. Nos. 2805689; 3723429; 3907178; 3952222;
3999130; and others). These marks contain other distinctive elements, whether

8 As indicated earlier, Applicant concedes that “For Less” is generic. (Brief, 4 TTABVUE 3).
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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additional wording or designs, which serve to distinguish the registrability of those
marks as compared to Applicant’s designations, which are depicted simply in
standard characters. Other marks are registered on the Supplemental Register.
(See, e.g., Reg. No. 4348281 for the mark CAR LIGHTS 4 LESS). In any event, given
the prevalent third-party usage of the terminology “4 Less” and “For Less” in the
furniture trade, we see no reason to focus on how the Office has treated (perhaps, at
times, somewhat inconsistently) this terminology in the past. Although
administrative consistency is a goal, these third-party registrations are not
conclusive on the question of registrability of Applicant’s designation inasmuch as
each case must stand on its own merits. 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.”); In re theDot Commc’ns
Network LLC, 101 USPQ2d 1062, 1067 (TTAB 2011).
We find the present cases to be very similar to the Melville decision. Just as with
the slogan “Brand Names For Less” which was denied registration in that case,
each of Applicant’s designations should remain available for others to use in
connection with their competing services. Indeed, the record shows common usage
of the designation “—4 Less” and “—For Less” in the furniture trade. Further, we
are not persuaded by Applicant’s reliance on the case of In re School Book Fairs,
Inc., 229 USPQ 556 (TTAB 1986) for the reasons expressed by the Examining
Attorney. The mark in School Book Fairs was stylized and included interlocking
Application Serial Nos. 85973023; 85973044; 85973069; and 85973100

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letters “OO”; the Board found that the design elements possessed a sufficient
modicum of variation from the ordinary to demonstrate modest potential for
distinctiveness and distinguishability needed to qualify for registration on the
Supplemental Register. That situation is contrasted with the current applications
seeking registration on the Principal Register, wherein Applicant’s designations are
depicted in standard characters, with no stylization or design elements.
We conclude that, in a marketplace environment where consumers are
accustomed to the use by merchants of similar “—4 Less” and “—For Less”
informational phrases, consumers are not likely to view Applicant’s designations as
service marks but rather as merchandising slogans using common ordinary words
or terminology to convey information about Applicant’s services, namely that
Applicant offers lower furniture prices than its competitors.

Decision: The refusal to register the proposed mark on the Principal Register in
each application is affirmed.