CellCorp USA, LLC

Trademark Trial and Appeal Board

Mar 28, 2012

No. 77860793 (T.T.A.B. Mar. 28, 2012)

Mailed:
March 28, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re CellCorp USA, LLC
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Serial No. 77860793
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Kimberly I. Shimomura of Harter Secrest & Emery LLP for
CellCorp USA, LLC.

W. Wendy Jun, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
_______

Before Bucher, Bergsman and Ritchie,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

CellCorp USA, LLC (“applicant”) filed a use-based
application, under the provisions of Section 2(f) of the
Trademark Act of 1946, 15 U.S.C. § 1052(f), to register the
design of a backpack, water bottle and flashlight, shown
below, for “backpacks,” in Class 18.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77860793
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Applicant described its mark as follows:

The mark consists of a three
dimensional configuration of a
backpack. On the top of the backpack
is a loop handle. The backpack has a
drawstring closure on the top and two
straps on the back. A mesh pocket
holding a water bottle is on the left
side of the backpack. A mesh pocket
holding a flashlight is on the right
side of the backpack. The front of the
backpack has a mesh pocket.

Applicant submitted the following photographs of the
products as its specimens of use.

Specimen of October 29, 2009

Specimen of June 22, 2010
The examining attorney finally refused registration on
the ground that the three-dimensional configuration of the
backpack with mesh pockets holding a water bottle and
flashlight sought to be registered has not acquired
distinctiveness. Because the subject matter sought to be
Serial No. 77860793
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registered is a product design, it is not inherently
distinctive, and it is registrable only with a showing of
acquired distinctiveness. Wal-Mart Stores, Inc. v. Samara
Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1067 (2000).
Under Trademark Rule 2.41(a), 37 C.F.R. §2.41(a), an
applicant may submit affidavits, declarations under 37
C.F.R. §2.20, depositions, or other appropriate evidence
showing the duration, extent, and nature of the applicant’s
use of a mark in commerce that may lawfully be regulated by
Congress, advertising expenditures in connection with such
use, letters, or statements from the trade and/or public,
or other appropriate evidence tending to show that the mark
distinguishes the goods or services.
Establishing acquired distinctiveness by actual
evidence was explained as follows in In re Owens-Corning
Fiberglas Corp., 774 F.2d 1116, 1125, 227 USPQ 417, 422
(Fed. Cir. 1985):
An evidentiary showing of secondary
meaning, adequate to show that a mark
has acquired distinctiveness indicating
the origin of the goods, includes
evidence of the trademark owner’s
method of using the mark, supplemented
by evidence of the effectiveness of
such use to cause the purchasing public
to identify the mark with the source of
the product.

Serial No. 77860793
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The kind and amount of evidence necessary to establish
that a mark has acquired distinctiveness in relation to
goods or services depends on the nature of the mark and the
circumstances surrounding the use of the mark in each case.
Yamaha Int’l Corp. v. Hoshino Gakki Co., 840 F.2d 1572,
1581, 6 USPQ2d 1001, 1008 (Fed. Cir. 1988); Roux Labs.,
Inc. v. Clairol Inc., 427 F.2d 823, 829, 166 USPQ 34, 39
(C.C.P.A. 1970); In re Hehr Mfg. Co., 279 F.2d 526, 528,
126 USPQ 381, 383 (C.C.P.A. 1960); In re Capital Formation
Counselors, Inc., 219 USPQ 916, 918 (TTAB 1983). An
applicant faces a heavy burden in establishing the
distinctiveness of a product design. Yamaha Int’l Corp. v.
Hoshino Gakki Co. Ltd., 6 USPQ2d at 1008; Stuart Spector
Designs Ltd. v. Fender Musical Instruments Corp., 94 USPQ2d
1549, 1554 (TTAB 2009); In re Ennco Display Systems Inc.,
56 USPQ2d 1279, 1284 (TTAB 2000).
The Examining Attorney’s position is quite simple:
applicant has failed to demonstrate that the product design
is recognized as a trademark. She contends that the
subject matter sought to be registered is comprised of
elements common to many backpacks and that when combined,
they do not create a unique product design distinguishable
from other backpacks. The examining attorney also asserts
that the applicant’s sales figures and advertising fail to
Serial No. 77860793
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evidence any degree of consumer recognition. Finally, the
examining attorney discounts the customer declarations
submitted by applicant because the customers identify a
marketing concept (i.e., a combination backpack, water
bottle and flashlight) rather than a trademark and she
discounts the retailer declarations because they represent
“individuals who have superior knowledge about the
applicant’s goods.”1
In its June 22, 2010, response to the first Office
action, applicant submitted two Target and two Kmart
advertisements representative of the advertisements
distributed by applicant between
2003 and June 22, 2010.2
Exhibit C (at right) is the
relevant portion of a flyer from
Target (December, 2005).
The excerpt from Exhibit A, set forth below, provides
a view of another style of the backpack set (along with a
display of the sleeping bag) which is the subject matter
sought to be registered.

1 Examining Attorney Brief, unnumbered page 16.
2 Mark Harris Declaration, ¶¶7 and 8 and Exhibits A-D.
Serial No. 77860793
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In his June 2010 declaration, Mark Harris, applicant’s
President and Chief Executive Officer, attested to the
following facts:
1. Since 2004, applicant has spent approximately
$50,000 per year on advertising; primarily print
advertising;
2. Since 2002, applicant has sold over 4 million
backpacks generating revenues in excess of almost 41
million dollars; and
3. Applicant sells its backpacks in national and
regional retail stores throughout the United States,
including Target, Kmart, Wal-Mart, Dicks, and The Sports
Authority.
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In its March 10, 2011, request for reconsideration,
applicant submitted three declarations from retail store
buyers and thirty-eight (38) declarations from consumers
identifying applicant as the source of backpacks with the
product design sought to be registered. They were form
declarations. The relevant portion of the retail buyer
declarations reads as follows:
4. In connection with my employment, I have
purchased a variety of backpacks for my
company, …

5. I understand the backpacks as being sold
under this trademark [the subject matter
sought to be registered] because the
backpacks have a drawstring top with three
mesh pockets and two of those pockets
contain a water bottle and a flashlight.

6. While I have seen other backpacks that have
a drawstring top and/or pockets, I know that
backpacks come from [applicant] when they
have the combination of a drawstring top,
three mesh pockets, and two of those pockets
have a water bottle and a flashlight as
shown in [the drawing of the product
configuration sought to be registered].

The relevant portion of the customer declarations
reads as follows:
4. I understand the backpacks as being sold
under [the subject matter sought to be
registered] because the backpacks have a
drawstring top with three mesh pockets and
two of those pockets contain a water bottle
and flashlight.

5. I have also seen numerous advertisements for
the backpacks being sold under the mark
Serial No. 77860793
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shown in [the subject matter sought to be
registered].

6. While I have seen other backpacks that have
a drawstring top and or pockets, I know that
backpacks come from [applicant] when they
have the combination of a drawstring top,
three mesh pockets, and two of those pockets
have a water tight bottle and a flashlight
as shown in the [subject matter sought to be
registered].

We do not find applicant’s evidence to be convincing.
First, applicant’s use since 2002, while indicative of its
commercial success, is not conclusive or persuasive
considering the nature of the subject matter sought to be
registered, regardless of the customer declarations. In re
Ennco Display Systems Inc., 56 USPQ2d at 1286 (applicant’s
use of the product designs ranging from seven to seventeen
years is insufficient to bestow acquired distinctiveness).
See also In re Bongrain International Corp., 894 F.2d 1316,
1317 n.4, 13 USPQ2d 1727, 1728 n.4 (Fed. Cir. 1990); Yamaha
Int’l Corp. v. Hoshino Gakki Co. Ltd., 6 USPQ2d at 1005.
Second, in considering the totality of the evidence
submitted by applicant, applicant’s sales in terms of units
and revenues is indicative of commercial success, but not
recognition of the configuration of a backpack as a
trademark. For example, there is no evidence putting
applicant’s sales into context to show whether applicant’s
sales are significant vis-à-vis the sales of competing
Serial No. 77860793
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products. Cf. Bose Corp. v. QSC Audio Products, Inc., 293
F.3d 1367, 63 USPQ2d 1303, (Fed. Cir. 2002) (with respect
to the fame of a mark, “[r]aw numbers of product sales and
advertising expenses may have sufficed in the past to prove
fame of a mark, but raw numbers alone in today’s world may
be misleading.”).
With respect to applicant’s advertising, consumers are
not likely to view the configuration of the backpack as a
trademark: rather, they will view the combination backpack
with mesh pockets holding a water bottle and flashlight as
a package. The text in the Target flyer, set forth above,
reads as follows: “Kool-A-ROO sleeping bag and backpack
set with water bottle and flashlight.” There is no “look
for” advertising pointing out that this combination of
features is exclusively associated with applicant. There
is nothing in the record to show that applicant does
anything to highlight or emphasize the backpack with mesh
pockets holding a water bottle and flashlight as anything
other than a combination of product features quite
logically paired with a sleeping bag and backpack set.
There is nothing about these advertisements that lead
potential purchasers to view the backpack with mesh pockets
holding a water bottle and flashlight as anything more than
photographs of the products. This type of visual
Serial No. 77860793
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presentation with a brief description of the features of
the backpack is consistent with the examples of numerous
backpack designs applicant has placed in the record.
We find that the representative advertisements
undercut the probative value of the customer declarations.
The declarants attested to having seen numerous
advertisements featuring the subject matter sought to be
registered. Presumably, the declarants are referring to
the representative advertisements submitted by applicant
which, as discussed above, display the configuration of the
backpack as nothing more than the product being sold. It
is not clear how these advertisements have led the
declarants to identify the product design as a trademark.
In fact, the customer declarants have not explained what
they understand a trademark to be and how they concluded
that the combination of a backpack with mesh pockets
holding a water bottle and a flashlight form a trademark.
Thus, we are not convinced that applicant first ascertained
what the declarants recognized as a trademark and then
prevailed upon them to sign the declarations. In other
words, the declarants did not state their own knowledge;
rather, they simply concurred in the conclusion to which
they were lead by applicant. See In re Bausch & Lomb Inc.,
206 USPQ 534, 538 (TTAB 1979).
Serial No. 77860793
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The retail store buyers’ declarations are more
probative because we assume that the buyers have sufficient
experience to identify a product configuration that
functions as a trademark.3 However, a review of the record
shows numerous backpacks with mesh pockets and, in some
cases, with water bottles. It is only the addition of a
flashlight that sets applicant’s product offering apart.
Because the declarants did not explain how they reached the
conclusion that applicant’s product offering functions as a
trademark, like the customer declarants, we find that the
buyers concurred in the conclusion to which they were lead
by applicant. In any event, three declarations are not
persuasive considering the nature of the subject matter
sought to be registered.
We note that the record is lacking in any media
recognition regarding applicant’s product and how the
combination of elements is a unique offering associated
with applicant.
We also note that there is no evidence as to whether
consumers identify any competing backpack designs as
trademarks, thus, creating a practice in the industry on

3 The better practice would not have the Board assume anything.
It would have behooved applicant to have had the declarants
explain what they believe a trademark to be and why they believe
the product configuration at issue functions as a trademark.

Serial No. 77860793
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which consumers and/or buyers would rely in identifying
applicant’s product configuration as a trademark.
In view of the foregoing, we find that the evidence is
insufficient to show that the design of applicant’s
backpack, mesh pockets, water bottle and flashlight has
acquired distinctiveness.
Decision: The refusal to register the subject matter
sought to be registered on the ground that applicant’s
evidence is insufficient to demonstrate acquired
distinctiveness under Section 2(f) is affirmed.