Bird Brain, Inc.

Trademark Trial and Appeal Board

Sep 7, 2011

No. 77817178 (T.T.A.B. Sep. 7, 2011)

Mailed: September 7, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Bird Brain, Inc.
________

Serial No. 77817178
_______

Christopher A. Mitchell of Dickinson Wright for Bird Brain,
Inc.

Cheryl Clayton, Trademark Examining Attorney, Law Office
102 (Karen M. Strzyz, Managing Attorney)
_______

Before Bucher, Kuhlke and Wolfson, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

On September 1, 2009, Bird Brain, Inc. filed an
application to register FIREPOT in standard characters on
the Supplemental Register for goods identified as
“decorative tabletop torches” in International Class 4.
The examining attorney refused registration on the
Supplemental Register on the ground that FIREPOT is generic
for applicant’s goods under Section 23(c) of the Trademark
Act, 15 U.S.C. §1091(c).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77817178
2
When a proposed mark is refused registration as
generic, the examining attorney has the burden of proving
genericness by "clear evidence." In re Merrill Lynch,
Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141,
1143 (Fed. Cir. 1987); see also In re Gould Paper Corp.,
834 F.2d 1017, 5 USPQ2d 1110, 1111 (Fed. Cir. 1987); In re
Wm. B. Coleman Co., 93 USPQ2d 2019 (TTAB 2010). The
critical issue is to determine whether the record shows
that members of the relevant public primarily use or
understand the term sought to be registered to refer to the
category or class of goods or services in question. H.
Marvin Ginn Corp. v. International Ass’n of Fire Chiefs,
Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986); In
re Women's Publishing Co. Inc., 23 USPQ2d 1876, 1877 (TTAB
1992). Making this determination “involves a two-step
inquiry: First, what is the genus of goods or services at
issue? Second, is the term sought to be registered ...
understood by the relevant public primarily to refer to
that genus of goods or services?” Ginn, 228 USPQ at 530.
Evidence of the public’s understanding of a term may be
obtained from any competent source, including testimony,
surveys, dictionaries, trade journals, newspapers and other
publications. Merrill Lynch, 4 USPQ2d at 1143, and In re
Serial No. 77817178
3
Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ
961, 963 (Fed. Cir. 1985).
We find that the genus of goods at issue in this case
is adequately defined by applicant’s identification of
goods, specifically, “decorative tabletop torches.” The
evidence of record, including applicant’s specimen of use,
provides further clarification that the genus includes
ceramic pots used to house fire. See, e.g., printout of
web pages from www.thesoothingcompany.com, attached to the
May 26, 2010 Office Action. In addition, the relevant
purchasers would be members of the general purchasing
public.
Turning to the second inquiry, the examining attorney
argues that “the applied-for mark, FIREPOT, is generic as
used in connection with the decorative table top torches
because it identifies a class of goods that are both
decorative and function for holding fire.” Br. p. 5.
In support of her position, the examining attorney
attached the following printouts from third-party websites
to her May 26, 2010 Office Action:
Esschert Design Low Firepot ... Esschert Design
offers a diversity of products – inspired by
nature – uniquely combined with practicality. ...
This guarantees our products are unique to our
customers. This firepot is constructed of cast
iron with a black finish. (www.amazon.com);

Serial No. 77817178
4
FSI For all your Fire Entertainment Needs! ...
Navajo Fire Pot The 33 inch Navajo Firepot
(shown here in moonstone) is the newest in our
line. (www.fire-science.com)

Aqua Superstore ... Bobe 24” Copper Fire Pot
Details ... The Bobe 24” Copper Fire Pot brings
an element of fire to your back yard ... This
fire pot brings an exclusive display of fire ...
This 24” fire pot comes fully polished with all
seams fully welded. (www.aquasuperstore.com);

Northline express ... Firepot – Black ... This
all black Firepot is both decorative and
functional. Fill the firepot with kerosene then
light the ceramic dipper to make lighting the
logs easier. (www.northlineexpress.com);

The Soothing Company ... Real Flame Gel Fuel
Firepot ... gives the coziness and warmth of a
real fire without the hassle of woods ... A
ventless, clean-burning decorative fire pot that
sets the perfect mood for any occasion, indoors
and out. (www.thesoothingcompany.com); and

BackyardCity.com ... Delni Aluminum Patio Firepot
... Decorative Patio Table Torch ... The Delni
Aluminum Patio Firepot is a hand crafted zinc
fire pot with unique hand painted copper finish.
This outdoor accent piece is perfect for lining
walkways or using as center piece on tables. ...
Available in two sizes; small firepot is 17
inches tall and the medium firepot is 25 inches
tall. (www.backyardcity.com).

In addition, the examining attorney relies on the
following definitions:
Firepot 1. a clay pot filled with combustibles
formerly used as a missile in war; 2. a vessel
used in eastern Asian cuisine for cooking foods
in broth at the table (www.merriam-webster.com,
attached to December 14, 2009, Office Action);

Firepot may refer to – A method of cooking, as in
Steamboat (food) – A device for carrying fire
Serial No. 77817178
5
(en.wikipedia.org, attached to December 14, 2009,
Office Action); and

Fire pot – A fire pot is a container, usually
earthenware, for carrying fire. Fire pots have
been used since prehistoric times to transport
fire from one place to another, for warmth while
on the move, for cooking, in religious ceremonies
and even as weapons of war. (en.wikipdia.org
attached to May 26, 2010, Office Action).

The examining attorney contends that “the very nature
and essence of the applicant’s goods are named” in the
submitted definitions inasmuch as they are “merely
decorative devices which hold fire.” Br. p. 5. Further,
based on this evidence, she asserts that the term
“‘Firepot’ refer[s] to the entire genus of vessels, pots,
pits, etc. that hold fire for decorative and functional
purposes. The term firepot refers to multiple styles and
uses of vessels for holding or containing fire. The
applicant’s decorative torches or decorative devices that
hold fire are simply one style of fire pot of the entire
genus of fire pots.” Br. p. 8.
In traversing the refusal, applicant argues that the
definitions do not support a finding that the public would
“primarily refer to or understand a ‘fire pot’ to be a
‘decorative tabletop torch’ – if anything, they demonstrate
the opposite.” Br. p. 8. With regard to the website
evidence, applicant argues that “the vast majority of these
Serial No. 77817178
6
products are applicant’s own ARANI FIREPOT-, JARDINIERE
FIREPOT-, or, FIREPOT-branded goods [and the remaining
examples are for] outdoor fireplaces, fire pits or cooking
devices.” Further, applicant argues that “the fire-related
characteristics associated with FIREPOT-brand decorative
tabletop torches and shared with the identified fireplaces
and fire pits do not make the term generic. ... the
examining attorney here simply presents examples of devices
that both use the term ‘fire pot’ and relate to fire.
These characteristics alone do not demonstrate that the
public refers to decorative tabletop torches collectively
as ‘firepots.’” Br. p. 11 (emphasis in original).
In support of its position, applicant submitted a
declaration from Courtney A. King, applicant’s president
attesting that the website printouts presented in the first
Office Action contained references to applicant’s goods.
Shown below is one of the printouts depicting applicant’s
firepot and describing the goods:
Serial No. 77817178
7

www.amazon.com (attached to December 14, 2009 Office
Action).
In this example, while the term “Firepot” could
arguably be viewed as being used as a source identifier in
the phrase FIRE JARDINIERE FIREPOT, it is also used as the
generic name of the goods.
In addition, Ms. King states that applicant’s goods
are “decorative tabletop torches for display purposes only
... [and] are not for cooking purposes [nor] are they clay
pots filled with combustibles and formerly (or presently)
used as missiles in war.” King Decl. p. 2 (attached to
April 26, 2010 Response).
Serial No. 77817178
8
Applicant also asserts that while the Wikipedia
entries are admissible “their unverified, unprofessional
nature renders them highly susceptible to challenge from
professional sources.” Reply Br. p. 6.
The Board considers evidence taken from Wikipedia “so
long as the non-offering party has an opportunity to rebut
that evidence by submitting other evidence that may call
into question the accuracy of the particular Wikipedia
information.” In re IP Carrier Consulting Group, 84 USPQ2d
1028, 1032 (TTAB 2007). In this case, applicant has not
submitted any evidence to rebut the veracity of the
entries.
Applicant further argues that we should “discount the
[Wikipedia] entries’ inconsistent elements and ... instead
only consider them as support for the authoritative
Merriam-Webster’s ‘method of cooking’ definition ... [and]
‘weapons of war’ meaning.” Reply Br. p. 7. Of course, the
more probative submission is the Merriam-Webster
definition. However, just as the Wikipedia evidence serves
as support to the Merriam-Webster reference, it also
corroborates the website printouts that show various
devices for “carrying fire.”1

1 We note that our determination here is not dependent on the
Wikipedia evidence.
Serial No. 77817178
9
We find FIREPOT to be a compound term and properly
analyzed under the Gould analysis. Gould Paper Corp., 5
USPQ2d at 1111-1112; Wm. B. Coleman Co., Inc., 93 USPQ2d
2019; In re DNI Holdings Ltd., 77 USPQ2d 1435 (TTAB 2005);
In re Eddie Z’s Blinds and Drapery, Inc., 74 USPQ2d 1037
(TTAB 2005).
We take judicial notice of the following dictionary
definitions:2
FIRE The phenomenon of combustion manifested in
light, flame, and heat; and

POT usu. Rounded metal or earthen container used
chiefly for domestic purposes (as in cooking or
for holding liquids or growing plants).

Merriam-Webster’s Collegiate Dictionary (10th ed. 1999).
Thus, under the Gould standard the term FIREPOT is
generic for a pot that holds fire. This is specifically
corroborated by the website printout from
www.soothingcompany.com. Applicant’s firepot and the
third-party firepot are shown below.

2 In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB
2002); In re Total Quality Group Inc., 51 UPQ2d 1474, 1476 (TTAB
1999).

Serial No. 77817178
10
Real Flame Gel Fuel Firepot

Applicant’s Firepot
The several other examples of firepots evidence use of
the term for the broader array of pot-like vessels that
contain fire for decorative and functional purposes. The
fact that applicant’s firepot is a subset of goods that are
referred to as firepots does not transform it into a term
capable of source-identifying significance for applicant’s
firepots.
The record establishes that the individual components
of applicant’s mark are generic for the goods, specifically
pots that hold fire, and their combination lends “no
additional meaning to the term.” Dial-A-Mattress Operating
Corp., 57 USPQ2d at 1810. The definitions for the combined
Serial No. 77817178
11
term “firepot” and third-party uses support this
conclusion.
Applicant’s reliance on In re Trek 2000 Int’l, 97
USPQ2d 1106 (TTAB 2010), is misplaced. The Board
distinguished the circumstances of that case from exactly
the circumstances we have in this case, “where the term in
question is simply a combination of generic terms.” Trek,
97 USPQ2d at 1114. Finally, with regard to the evidence
showing uses of the term FIREPOT in connection with
applicant’s goods, no amount of evidence can transform a
generic term into a registrable trademark. See In re Half
Price Books, Records, Magazines, Inc., 225 USPQ 219, 222
(TTAB 1984). Moreover, this case does not present a record
sufficient to rebut the examining attorney’s prima facie
showing that the term FIREPOT is generic for applicant’s
goods. Merrill Lynch, 4 USPQ2d at 1141.
Decision: The refusal to register on the Supplemental
Register based on genericness under Section 23 is affirmed.