Brach Van Houten Holding Inc.

Trademark Trial and Appeal Board

Mar 3, 2000

No. 75175858 (T.T.A.B. Mar. 3, 2000)

Oral Hearing: Paper No. 14
August 5, 1999 GDH/gdh
THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB MARCH 3, 00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Brach Van Houten Holding Inc.
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Serial No. 75/175,858
Serial No. 75/292,529
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Collette Durst-Barkey and John M. Murphy of Pattishall,
McAuliffe, Newbury, Hilliard & Geraldson for Brach Van Houten
Holding Inc.
Mitchell Front, Trademark Examining Attorney, Law Office 101
(Jerry Price, Managing Attorney).
_______
Before Cissel, Hohein and Rogers, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Brach Van Houten Holding Inc. has filed applications to
register "HONEY CORN"1 and "FRUITY CORN"2 as trademarks for
"candy".
In each case, registration has been finally refused
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.

1 Ser. No. 75/175,858, filed on October 2, 1996, which is based upon an
allegation of a bona fide intention to use such term in commerce.
2 Ser. No. 75/292,529, filed on May 15, 1997, which is based upon an
allegation of a bona fide intention to use such term in commerce.
Ser. Nos. 75/175,858
and 75/292,529
2
§1052(e)(1), on the basis that, when used in connection with
applicant's goods, the terms "HONEY CORN" and "FRUITY CORN" are
merely descriptive of them.
Applicant, in each instance, has appealed. Briefs have
been filed and an oral hearing was held. Because the issue in
each case is substantially the same, the appeals have been
treated in a single opinion. We affirm the refusals to register.
It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning of
Section 2(e)(1) of the Trademark Act, if it immediately describes
an ingredient, quality, characteristic or feature thereof or if
it directly conveys information regarding the nature, function,
purpose or use of the goods or services. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). It is not necessary that a term describe all of the
properties or functions of the goods or services in order for it
to be considered to be merely descriptive thereof; rather, it is
sufficient if the term describes a significant attribute or idea
about them. Moreover, whether a term is merely descriptive is
determined not in the abstract but in relation to the goods or
services for which registration is sought, the context in which
it is being used on or in connection with those goods or services
and the possible significance that the term would have to the
average purchaser of the goods or services because of the manner
of its use. See In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). Consequently, "[w]hether consumers could guess what

Ser. Nos. 75/175,858
and 75/292,529
3
the product [or service] is from consideration of the mark alone
is not the test." In re American Greetings Corp., 226 USPQ 365,
366 (TTAB 1985).
Applicant, while conceding in its initial brief that it
"does not dispute that ’fruity’ and ’honey’ are descriptive of
candy, and would agree to disclaim these terms," argues that the
word "’corn,’ and hence the marks FRUITY CORN and HONEY CORN
taken in their entireties, are at least suggestive as applied to
candy." Citing, in particular, the definitions (accompanying its
initial brief) of the noun "corn" from Webster’s Third New
International Dictionary (2d ed. 1981), applicant requests that
the Board take judicial notice of the fact that "[n]one of the
... definitions refer[s] to candy." Similarly, applicant points
out that "none of the NEXIS excerpts cited by the Examining
Attorney use[s] the term ’corn’ in such a manner" since, instead,
they "use the unitary term ’candy corn.’" Thus, according to
applicant, because "[t]here is no evidence that consumers
understand ’corn,’ by itself, to mean a type of candy," the terms
"HONEY CORN" and "FRUITY CORN" are not merely descriptive of
applicant’s goods.
The Examining Attorney, however, has made of record
excerpts from the Nexis computerized database which reveal that
there is a type of candy known generically as "candy corn" and
that such candy has been produced in several varieties (including
those offered by applicant). Among the more pertinent excerpts
are the following (emphasis added):
Ser. Nos. 75/175,858
and 75/292,529
4
"Brach’s Hi-C Fruity Corn is ’New!’ from
Brach & Brock Confections. Promoted in ads
captioned, ’Brach’s Halloween favorites,’ the
colorful candy corn-shaped pieces are claimed
to be made with real fruit juice .... [E]ach
14 oz. bag contains an assortment of flavors
like wild cherry, Boppin’ Berry(tm), Jammin’;
Apple(tm), grape, orange and lemonade." --
Product Alert, November 24, 1997;
"SUE BEE HONEY CORN CANDY .... Brach
has extended its cobranding with this newest
product -- candy corn. It carries the Sue
Bee honey label and is sold in 14-oz. bags in
supermarkets nationally." -- New Product
News, November 1997;
"Similarly, whenever I have a birthday,
I remember as a child how much I used to
enjoy the candy corn I was always provided on
that occasion." -- Lewiston Morning Tribune,
April 14, 1997;
"To this day, I remember a certain early
fall afternoon, a paper bag of candy corn and
the sun ...." -- Washington Post, March 4,
1997;
"Perfectly excellent confections like
candy corn (my favorite vegetable) and
jellybeans (my favorite legume) are wrapped
in a substance that’s noisier than a
dentist’s drill." -- Town & Country Monthly,
March 1997;
Supermarkets carry everything kosher -
from salsas to duck sauce to candy corn and
marshmallows." -- Sun Sentinel, February 27,
1997;
"[An]other was called ’Carrot Candy.’
These are triangular-shape candy, green on
the top, orange on the bottom, that look very
similar to the candy corn that is sold during
Halloween." -- Montachusett T&G, February 26,
1997;
"Around Halloween, it’s time for candy
corn (but, again, harvest early)." --
Indianapolis Star, February 134, 1997; and
Ser. Nos. 75/175,858
and 75/292,529
5
"REINDEER CORN CANDY CORN .... This
candy is for the Christmas holiday instead of
Halloween. Reindeer Corn looks like the
Halloween candy corn but is red, green, and
white in color." -- New Product News,
February 10, 1997.
In addition, we judicially notice that The Random House
Dictionary of the English Language (2d ed. 1987) at 305 defines
"candy corn" as "a small candy shaped and colored to look like a
kernel of corn."3 Plainly, when consumers view the terms "HONEY
CORN" and "FRUITY CORN" in connection with packages of candy or
candy corn, they will immediately understand, without speculation
or conjecture, that those terms merely describe significant
characteristics of applicant’s goods, namely, that the products
respectively include or constitute honey-flavored candy corn and

3 It is well settled that the Board may properly take judicial notice
of dictionary definitions. See, e.g., Hancock v. American Steel &
Wire Co. of New Jersey, 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953) and
University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co.,
Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983). Accordingly, while we have done so in the case
of both the above definition and the earlier noted definition of
"corn" submitted by applicant, applicant in its reply brief and at the
oral hearing has objected to the Examining Attorney’s request that we
take judicial notice of the definition, which he states "was found on
the world wide web at www.dictionary.com," of "candy corn" as "a small
yellow and white candy shaped to resemble a kernel of corn." In
particular, applicant asserts that in order for judicial notice of a
fact to be proper, Fed. R. Evid. 201(b) requires that the source
thereof must be one "whose accuracy cannot reasonably be questioned"
and that "www.dictionary.com is not such a source" because:
It is not one of the published works, such as Webster’s
Third New International Dictionary, which the Board and
other tribunals regularly consult and cite in their
decisions. The examining attorney has not shown that the
definitions contained in www.dictionary.com are subjected to
the same level of editorial scrutiny which characterizes
printed dictionaries and similar reference works. ....
However, in light of the definition from The Random House Dictionary
of the English Language cited above, applicant’s objection is
considered moot.
Ser. Nos. 75/175,858
and 75/292,529
6
fruit-flavored candy corn. See, e.g., Remington Products Inc. v.
North American Philips Corp., 892 F.2d 1576, 3 USPQ2d 1444, 1448
(Fed. Cir. 1990) [omission of word "PERSONAL" from phrase "TRAVEL
CARE" does not obviate descriptiveness of such phrase for
personal travel care products]; and In re Entenmann’s Inc., 15
USPQ2d 1750 (TTAB 1990) [term "OATNUT" held merely descriptive of
bread containing oats and hazelnuts, since type of nut need not
be specified with absolute exactness]. Especially to children,
who undoubtedly constitute a substantial portion of the consumers
of applicant’s goods, there is nothing in either the term "HONEY
CORN" or "FRUITY CORN" which, when seen on a bag or package of
candy or candy corn, is peculiar, indefinite or susceptible to
multiple connotations, nor would any imagination, thinking or
gathering of further information be necessary in order to
perceive precisely the merely descriptive significance of each
such term as it relates to applicant’s goods.
Accordingly, because we find that, as applied to
applicant’s candy, the terms "HONEY CORN" and "FRUITY CORN"
forthwith convey that the product is or includes, respectively, a
honey-flavored candy corn and a fruit-flavored candy corn, such
terms are merely descriptive within the meaning of the statute.
Decision: The refusal under Section 2(e)(1) is
affirmed in each case.
R. F. Cissel
G. D. Hohein
Ser. Nos. 75/175,858
and 75/292,529
7
G. F. Rogers
Administrative Trademark Judges,
Trademark Trial and Appeal Board