Blunt Wrap U.S.A., Inc.

Trademark Trial and Appeal Board

May 12, 2015

No. 85938790 (T.T.A.B. May. 12, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 12, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Blunt Wrap U.S.A., Inc.
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Serial No. 85938790
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Brett A. North of Garvey Smith Nehrbass & North LLC,
for Blunt Wrap U.S.A., Inc.
Chrisie Brightmire King, Trademark Examining Attorney, Law Office 109,
Dan Vavonese, Managing Attorney.
_____

Before Taylor, Greenbaum and Goodman,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Blunt Wrap U.S.A., Inc. (“Applicant”) seeks registration on the Principal
Register of the mark ERILLO (in standard characters) for
Tobacco products and accessories, namely electronic
cigarettes and electronic cigars in International Class 34.1

1 Application Serial No. 85938790 was filed on May 21, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
Serial No. 85938790
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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 the mark is merely descriptive of the identified goods.
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We reverse the refusal to register.
I. Evidentiary Issue
The Examining Attorney has objected to Applicant’s submission of third-party
registrations with its appeal brief as untimely. “The record in the application should
be complete prior to the filing of an appeal. The Trademark Trial and Appeal Board
will ordinarily not consider additional evidence filed with the Board by the
appellant or by the examiner after the appeal is filed.” 37 C.F.R. § 2.142(d). See In
re Giovanni Food Co., 97 USPQ2d 1990, 1990-91 (TTAB 2011). The applicant has
the responsibility to make sure that the record is complete prior to filing a notice of
appeal. In re Van Valkenburgh, 97 USPQ2d 1757, 1768 n.32, 1769 (TTAB 2011).
Accordingly, the objection is sustained, and the evidence attached to Applicant’s
brief has been given no consideration. See, e.g., In re Fiat Group Marketing &
Corporate Communications S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014)
(examining attorney's objection to applicant's submission of registrations with
appeal brief sustained).2

2 The Board’s practice is not to take judicial notice of third-party registrations. See TBMP
§ 1208.02 (2014) and authorities cited therein.
Serial No. 85938790
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II. Applicable Law
“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.”
In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir.
2004), quoting, Estate of P.D. Beckwith, Inc. v. Commissioner, 252 U.S. 538, 543
(1920). See also In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778,
1780 (Fed. Cir. 2003). The determination of 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
with which it is used, or intended to be used. In re Engineering Systems Corp., 2
USPQ2d 1075 (TTAB 1986); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). 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. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987).
Where a mark consists of multiple words, the mere combination of descriptive
words does not necessarily create a nondescriptive word or phrase. In re Associated
Theater Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). 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, 71
USPQ2d at 1371. However, a mark comprising a combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
Serial No. 85938790
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unique, 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); and
TMEP § 1209.03(d) (January 2015).
A mark is suggestive if, when the goods or services are encountered under the
mark, a multi-stage reasoning process, or the utilization of imagination, thought or
perception, is required in order to determine what attributes of the goods or services
the mark indicates. See, e.g., In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215, 218 (CCPA 1978). As often has been stated, there is a thin line of
demarcation between a suggestive mark and a merely descriptive one, with the
determination of which category a mark falls into frequently being a difficult matter
involving a good measure of subjective judgment. See, e.g., In re Atavio, 25 USPQ2d
1361 (TTAB 1992), and In re TMS Corp. of the Americas, 200 USPQ 57, 58 (TTAB
1978). The distinction, furthermore, is often made on an intuitive basis rather than
as a result of precisely logical analysis susceptible of articulation. See In re George
Weston Ltd., 228 USPQ 57, 58 (TTAB 1985). The examining attorney bears the
burden of showing that a mark is merely descriptive of the identified goods or
services. See In re Merrill, Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4
USPQ2d 1141, 1143 (Fed. Cir. 1987).
Serial No. 85938790
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III. Analysis
The Examining Attorney contends that “rillo is merely a type of cigar and an
erillo is another word for electronic cigar,”3 similar to e-cigarette for an electronic
cigarette, and e-cigar for an electronic cigar, and therefore registration must be
refused. In support of the refusal, the Examining Attorney attached to the
September 28, 2013 Office Action the following evidence:
• A dictionary definition of the letter “e” from Cambridge Dictionaries
Online as an abbreviation for “electronic.”

• A search result from the ChaCha.com search engine showing the following
answer to the question “what is a rillo?”: “a small narrow cigar which
typically has the tobacco emptied so it can be refilled with weed to make a
blunt.”

• An entry for “rillo” from The Rice University Neologisms Database
explaining that a “rillo” is

[a] really long and thin cigarette, wrapped in tobacco
leaves, so it is somewhat classified as a little cigar, called
a cigarillo. A rillo is when one takes a cigarillo and cuts it
down the middle to take out the tobacco. After one takes
out the tobacco they then replace it with cannabis. After
the cannabis is added, then the rillo is closed back up
using saliva. After the rillo is closed back up, the rillo is
smoked like a regular cigarette.
In addition, the Examining Attorney attached to the December 14, 2013 Final
Office Action the following evidence:

3 8 TTABVUE 7. Citations to Applicant’s and the Examining Attorney’s briefs in this
opinion also include citations to the TTABVUE docket entry number, and the electronic
page number where the argument appears. TTABVUE is the Board’s electronic docketing
system.
Serial No. 85938790
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• A printout from the grasscity.com website, which the Examining Attorney
describes in her brief as follows: “Grasscity.com posts a community that
responds to their preferences of ‘blunt wraps or real cigars/rillos.”4

• A copy of the sole use-based third-party registration that includes the
word “rillo” or “rillos” on the Trademark Register: PT RILLOS for “cigars,”
with the word “rillos” disclaimed.5

• Internet evidence consisting of screenshots from several websites in which
“e-cigarette” and “e-cigs” refer to electronic cigarettes, and “e-cigar” refers
to electronic cigars.

• A definition of “cigarillo” as “a small narrow cigar” from the
dictionary.

• A printout from where the “Best Answer” to the
question whether a cigar, cigarillo, water bong or pipe “will give me a
better high” discusses the pros and cons of each, and uses the terms
“blunt” and “rillo” synonymously.

There is no question that the letter “e” is a commonly recognized prefix
abbreviation for the word “electronic,” and that Applicant’s goods are electronic
cigarettes and electronic cigars. The question is whether the term “rillo” is merely
descriptive of the identified goods such that when the terms are combined, the
result is a merely descriptive term. See In re SPX Corp., 63 USPQ2d 1592 (TTAB
2002) (E-AUTODIAGNOSTICS merely descriptive of an electronic engine analysis
system consisting of a hand-held computer and related computer software); In re
Styleclick.com Inc., 57 USPQ2d 1445 (TTAB 2000) (E-FASHION merely descriptive
of software for consumer use in shopping via the Internet and of electronic retailing
services); TMEP § 1209.03(d). We cannot make such a finding based on the record
evidence.

4 8 TTABVUE 5-6.
5 Registration No. 3908223 registered on January 18, 2011.
Serial No. 85938790
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In addition to being few in number, the above-mentioned “definitions” and uses
of the term “rillo” are from websites that provide no source attribution, and
therefore have little probative value. Moreover, there is no information in the record
as to whether the general population has been exposed to any of the websites, and,
in the case of the ChaCha.com and Rice University Neologisms Database, whether
anyone other than the Examining Attorney has searched for the term “rillo.” The
term “rillo” appears to be a slang term for a cigarillo with altered contents, and as
noted above, a cigarillo is defined as “a small, thin cigar,” but that is not enough
evidence on which to base a finding that the mark ERILLO is merely descriptive of
electronic cigars and electronic cigarettes.
In addition, Applicant argues that “electronic cigarettes and electronic cigars do
not include the use of tobacco, and consumers of Applicant’s goods would not be
inclined to empty and refill the product, as described by the Examining Attorney’s
evidence of ‘rillo.’”6 We agree. Even if we were to consider “rillo” and “cigarillo” to be
legally equivalent terms, we do not understand on this record how an electronic
cigar or electronic cigarette, which include neither tobacco nor cannabis (the
defining ingredients of a “rillo”), could be altered to include those ingredients. The
mark ERILLO therefore is incongruous when used on Applicant’s “tobacco products
and accessories, namely electronic cigarettes and electronic cigars.”
In making this determination, we are aware of the increasing prevalence of e-
cigarettes and e-cigars in the marketplace; an “e-cigarillo” does not defy

6 9 TTABVUE 7.
Serial No. 85938790
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imagination. However, on this record, it is not readily apparent how the term
ERILLO directly and immediately conveys information about a characteristic or
feature of the identified goods. Rather, as discussed above, we view Applicant’s
mark as incongruous in the context of Applicant’s goods. We further find that
purchasers of Applicant’s goods would be required to engage in a multi-stage
reasoning process to understand that ERILLO could refer to “tobacco products and
accessories, namely electronic cigarettes and electronic cigars.” This is not to say
that, on a different record, we might not reach a different result.
Decision: The refusal to register under Section 2(e)(1) of the Trademark Act is
reversed.