Blowdry Boutique Inc.

Trademark Trial and Appeal Board

Sep 8, 2017

No. 86722101 (T.T.A.B. Sep. 8, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: September 8, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Blowdry Boutique, Inc.
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Serial No. 86722101
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Phillip Thomas Horton,
for Blowdry Boutique, Inc.
Leslee A. Friedman, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
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Before Zervas, Taylor and Larkin,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Blowdry Boutique, Inc. (“Applicant”) seeks registration on the Principal Register
of the term BLOWDRY BOUTIQUE (in standard characters) for “hair salon services”
in International Class 44.1 The word BOUTIQUE was disclaimed voluntarily when
the application was filed.

1 Application Serial No. 86722101 was filed on August 12, 2015, based upon Applicant’s claim
of first use anywhere and use in commerce since at least as early as May 1, 2015.
Serial No. 86722101
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The Trademark Examining Attorney finally refused registration on the ground
that BLOWDRY BOUTIQUE is merely descriptive of hair salon services under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1).2
Applicant appealed to this Board, and both Applicant and the Examining Attorney
filed briefs. We affirm.
Applicable Law
The test for determining whether a mark is merely descriptive is whether it
immediately conveys information concerning a significant quality, characteristic,
function, ingredient, attribute or feature of the product or service in connection with
which it is used, or intended to be used. See, e.g., In re Chamber of Commerce of the
U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (internal citations
omitted).3 The determination of whether a mark is merely descriptive must be made

2 The Examining Attorney also originally refused registration under Section 2(d) of the
Trademark Act based on a likelihood of confusion with the mark in Registration No. 3666462
(BLO DRI). This refusal was obviated by the registrant’s failure to file maintenance papers
resulting in cancellation of the registration.
3 Applicant, citing to No Nonsense Fashions, Inc. v. Consolidated Foods Corp., 226 USPQ 502
(TTAB 1985), additionally points to, and has argued with regard to, a three-part test for
determining whether a mark is suggestive rather than descriptive. The test includes: (1) the
degree of imagination necessary to understand the product; (2) a competitor’s need to use the
same term; and (3) the competitor’s current use of the same or similar terms. Br. pp. 10-12,
4 TTABVUE 11-13. We note, however, that this “test” was set out in an inter partes case in a
discussion of whether the use of a term by third parties on their packaging detracted from
the plaintiff’s trademark rights. Since this decision issued in 1985, there have been numerous
decisions from the Court of Appeals for the Federal Circuit, our primary reviewing court, and
from the Board making clear that the test for descriptiveness is whether a term “immediately
conveys knowledge of a quality, feature, function, or characteristic of the goods or services
with which it is used.” See In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1514 (TTAB
2016); see also Chamber of Commerce of the U.S, 102 USPQ2d at 1219; In re Bayer
Aktiengesellschaft, 488 F.2d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007), citing In re Gyulay,
820 F.2d 1216, 1217, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Engineering Systems Corp., 2
USPQ2d 1075 (TTAB 1986); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). We base
Serial No. 86722101
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in relation to the goods or services for which registration is sought. Chamber of
Commerce of the U.S., 102 USPQ2d at 1219. It is not necessary, in order to find a
mark merely descriptive, that the mark describe each feature of the goods or services,
only that it describe a single, significant ingredient, quality, characteristic, function,
feature, purpose or use of the goods or services. Chamber of Commerce of the U.S.,
102 USPQ2d at 1219; Gyulay, 3 USPQ2d at 1217.
Where a mark consists of multiple words, the mere combination of descriptive
words does not necessarily create a nondescriptive word or phrase. In re Phoseon
Tech., Inc., 103 UPQ2d 1822, 1823 (TTAB 2012); In re Associated Theatre Clubs Co.,
9 USPQ2d 1660, 1662 (TTAB 1988). A mark comprising a combination of merely
descriptive components is registrable if the combination of terms creates a unitary
mark with a unique, suggestive, or otherwise nondescriptive meaning, or if the
composite has a bizarre or incongruous meaning as applied to the goods or services.
See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968); In re Shutts,
217 USPQ 363 (TTAB 1983). However, if each component retains its merely
descriptive significance in relation to the goods or services, the combination results
in a composite that is itself merely descriptive. Oppedahl & Larson LLP, 71 USPQ2d
at 1371.
Last, a mark comprising more than one element must be considered as a whole
and should not be dissected; however, we may consider the significance of each

our decision herein on the test for descriptiveness set forth in the post 1985 decisions and
have considered Applicant’s arguments within those parameters.
Serial No. 86722101
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element separately in the course of evaluating the mark as a whole. See DuoProSS
Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1756-
57 (Fed. Cir. 2012) (noting that “[t]he Board to be sure, can ascertain the meaning
and weight of each of the components that makes up the mark.”).
Arguments and Evidence
Applicant, although voluntarily disclaiming the descriptive word “boutique” in its
mark BLOWDRY BOUTIQUE, maintains that its mark, as a whole, is suggestive.
Conversely, the Examining Attorney maintains that the wording BLOWDRY
BOUTIQUE is merely descriptive because it is regularly used in the marketplace and
by third parties to describe “hair salon services.”
In support of her position, the Examining Attorney points to Applicant’s
acknowledgement that the word BOUTIQUE is descriptive by its disclaiming the
term. She has also made of record the following:
1. The definition of “Boutique” by the America Heritage Dictionary as “a small
business offering specialized products and services.”4
2. An excerpt from Applicant’s website showing use by Applicant of BLOWDRY
BOUTIQUE (more fully discussed below).5

4 (https://www.ahdictionary.com), November 25, 2015 Office Action, TSDR 10.
5 (http://www.blowdryboutiques.com), November 25, 2015 Office Action, TSDR 8.
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3. Excerpts from various third-party salon websites using the compound
BLOWDRY as an industry term to refer to and identify their blow-drying services. A
sampling is set forth below:6
The Blowdry Café (http://www.blowdrycafe.com)
A Blowdry Salon and Makeup Bar!
Brazilian Blowdry Boutique (http://www.brazilianblowdryboutique.com)
Blast Blowdry (http://www.blastblowdry.com)
Blowdrytaxi (http://blowdrytaxi.com)
Who Blowdry Tax Was Designed For
The busy women who like to look good and feel confident and want
to have their hair blown dry at their convenience – at home or in
the office.

Salon Estem (http:salonestem.com/haircuts-and-styling)
- Offers Blowdry and Style for $40 and up
Eric Alt Salon Blowdry Bar (http://ericaltsalon.com/blowdry-bar)
What is a Blowdry Bar?
Blowdry Bar is a place where you can go and have a simple wash and
blowdry.
Be Fabulous Color Blow Dry Boutique (https://vive.co/salons/be-fabulous-color-
blow-dry-boutique)

Be Fabulous is a unique color, care and blow dry boutique committed to
making you feel beautiful and fabulous.

6 November 25, 2015 Office Action, TSDR 4-7; September 1, 2016 Office Action, TSDR 4-7,
11-12, 21-22.
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Griffith Parc Blow Dry Boutique & Salon (http://griffithparcsalon.com)
- Offers Blow Dry Packages
We also take judicial notice of the definition of “blow-dry,” defined in the online
version of the Cambridge Dictionary (English US) as:7
to dry hair with a small electric device that blows out hot
air:
I’ll be ready as soon as I blow-dry my hair.
Based upon this evidence, it is clear that the wording “BLOWDRY BOUTIQUE,”
as a whole, immediately describes the purpose of or a feature of Applicant’s hair salon
services, namely, that the services are performed in a specialty shop that offers blow-
dry services for hair.8 The combination of terms is not incongruous, and no additional
information is needed for the merely descriptive significance thereof to be readily
apparent to prospective consumers of the services. See, for example, In re Abcor Dev.
Corp., Inc., 588 F.2d 811, 200 USPQ 215 (CCPA) (Rich, J., concurring) (GASBADGE
described as a shortening of the name “gas monitoring badge”); Cummins Engine Co.,
Inc. v. Continental Motors Corp., 359 F.2d 892, 149 USPQ 559 (CCPA 1966)

7 www.dictionary.cambridge.org/us/dictionary/english/blow-dry. The Board may take judicial
notice of dictionary definitions, including online dictionaries that exist in printed format or
have regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014);
Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re
Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
8 The term blow-dry is used in the hair salon industry both with and without a hyphen, and
it has been used both with and without a hyphen in this decision, as appropriate. We point
out that the presence or absence of a hyphen in the term does not alter its descriptive
significance. See In re Vanilla Gorilla, L.P., 80 USPQ2d 1637 (TTAB 2006) (presence of
punctuation mark (a hyphen) in the mark “3-0'S” does not negate mere descriptiveness of
mark).
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(TURBODIESEL held generically descriptive of engines having exhaust driven
turbine super-chargers).
Indeed, Applicant’s use of the term “blowdry” descriptively on its website confirms
our finding that the wording BLOWDRY BOUTIQUE merely describes Applicant’s
specialty salon’s blowdry services. The website specifically states:
BLOWDRY BOUTIQUE is the only BlowDry Salon where
each stylist has to go through specific training to retain
their mastering talent of blowdrys …. Emcompassing [sic]
a lifestyle dedicated to health and wellness a simple weekly
blowdry has proven to do wonders with self-esteem and
confidence.9
We are not persuaded by Applicant’s arguments to the contrary. First, Applicant’s
contention that the wording BLOWDRY BOUTIQUE creates an incongruity in the
mind of consumers because Applicant offers hair salon services other than just blow-
drying is unpersuasive. In fact, Applicant acknowledges in its brief at page 610 that
“[a] mark may be merely descriptive even if it does not describe the ‘full scope and
extent’ of the applicant’s goods or services.”11
Applicant argues that the “‘mental link’ between the trademark BLOWDRY
BOUTIQUE and the Applicant’s services as identified in the application is neither
immediate nor instantaneous.” Br. p. 10,12 By this we presume that Applicant is

9 http://www.blowdryboutiques.com/; attachment to the November 25, 2015 Office Action,
TSDR 8.
10 5 TTABVUE 7.
11 Applicant cites to In re Oppendahl & Larsen LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371
(Fed. Cir. 2004) (internal citation omitted).
12 5 TTABVUE 11.
Serial No. 86722101
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arguing that a mental leap is required to ascertain the nature of its services. As
demonstrated on this record, no such leap is required.
We also are unpersuaded by Applicant’s argument that other wording, such as
AIRDRY BOUTIQUE and MACHINEDRY BOUTIQUE, is available for competitors
to use. Apart from Applicant’s failure to demonstrate that these terms are
synonymous with the wording BLOWDRY BOUTIQUE, the purported availability of
other terms that Applicant's competitors might use in connection with rendering hair
salon services in the nature of blowdrys does not negate the mere descriptiveness of
the wording Applicant seeks to register. See In re Dial A Mattress Operating Corp.,
52 USPQ2d 1910, 1916 (TTAB 1999); In re The Officers’ Org. For Economic Benefits,
Ltd., 221 USPQ 184 (TTAB 1984). Moreover, the record makes clear that numerous
hair salons currently use the wording BLOW DRY combined with the term
BOUTIQUE, or other establishment/service-identifying terms, to identify their
business, or as a heading for services rendered. These salons, in addition to the ones
listed above, include by way of example, Posh Salon & Blow Dry Boutique, Ross Salon
& Blow Dry Bar, Voila Blow Dry, GK Blow Dry Bar and Dry Art Blow Dry Bar.13
Applicant has also bolstered its position by citing a number of cases where
descriptiveness was not found. We remind Applicant that each case must be decided
on its own merits. The determination of registrability of a mark in other cases does
not control the merits in the case now before us. See In re Nett Designs Inc., 51

13 Attachments to the September 1, 2016 Office Action.
Serial No. 86722101
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USPQ2d at 1566; see also, In re Kent-Gamebore Corp., 59 USPQ2d 1373 (TTAB 2001);
In re Wilson, 57 USPQ2d 1863 (TTAB 2001).
Finally, we note Applicant’s reliance on the principle that when there is doubt on
the issue of whether a mark is merely descriptive, that doubt should be resolved in
favor of the applicant. In the present case, we have no doubt that Applicant’s applied-
for mark is merely descriptive of its identified hair salon services.
After careful consideration of all of the evidence and arguments presented,
including those arguments and evidence not specifically addressed in this decision,
we conclude that when applied to Applicant’s services, the term BLOWDRY
BOUTIQUE, as a whole, immediately describes, without any kind of multi-step
reasoning, a feature of the identified services, namely that Applicant’s hair salon
services feature blow-drys in a specialty shop.
Decision: The refusal to register BLOWDRY BOUTIQUE under Section
2(e)(1) is affirmed.