Cuba GmbH Int'l. Marketing Concept

Trademark Trial and Appeal Board

May 9, 2000

No. 75089625re (T.T.A.B. May. 9, 2000)

Paper No. 18
ejs
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MAY 9, 00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Cuba GmbH International Marketing Concept
________
Serial No. 75/089,625
_______
Cecelia M. Perry of McGlew and Tuttle for Cuba GmbH
International Marketing Concept
Cheryl S. Goodman, Trademark Examining Attorney, Law Office
102 (Thomas Shaw, Managing Attorney)
_______
Before Seeherman, Walters and Bottorff, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Cuba Gmbh International Marketing Concept has
requested reconsideration of the Board’s March 13, 2000
decision affirming the refusal of the Examining Attorney,
pursuant to Section 2(e)(1) of the Act, to register “Shape
CD,” for “a house mark for CD-Rom’s with interactive
multimedia programs or interactive media software,” in
Class 9, and for “booklets, pamphlets, and manuals for
Ser. No. 75/089,625
2
explaining or describing the CD-ROM’s and compact discs as
mentioned above,” in Class 16.
The request for reconsideration is denied.
Preliminarily, we note that applicant, in its request
for reconsideration, has attempted to submit “some
background as to the goods, the nature of the consumers of
the goods” and certain exhibits. Trademark Rule 2.142(d)
provides that the record in an application should be
complete prior to the filing of an appeal. A request for
reconsideration of a final decision is not a proper venue
for submitting additional factual information and evidence,
and this matter has not been considered.1
Applicant concedes that “shaped CD” is a descriptive
term for applicant’s CD-Rom’s. “It appears to be correct
to state that ‘shaped CD’ is a descriptive term used for
the goods.” Request, p. 2. In fact, as we indicated in
our opinion, “shaped CD” is an apt or common descriptive
name for such goods. Applicant’s argument that there are
also other terms which are used to describe these goods
does not obviate the descriptiveness of “shaped CD.”

1 Even if this material had been properly made of record during
the examination of this application, it would not change our
decision herein.
Ser. No. 75/089,625
3
Nor does the fact that applicant’s mark is “Shape CD,”
rather than “shaped CD,” eliminate the descriptiveness of
the mark. “Shape CD” and “shaped CD” are virtually
identical in pronunciation. As we said in our previous
opinion, one would have difficulty distinguishing one term
from another when they are spoken in a sentence. That is,
if a person were to say, “I want to order a “Shape CD,” it
would be difficult to know whether what was requested was a
“Shape CD” or a “shaped CD.”
Applicant attempts to distinguish those cases which
state that the mere misspelling of an otherwise descriptive
word is not sufficient to change it into a non-descriptive
mark, by pointing to the fact that “shape” is a word in its
own right, and has a meaning separate from that of
“shaped.” However, the meaning of “shape” is so close to
“shaped” that consumers will regard the term “Shape CD,” as
used for applicant’s shaped CD Rom’s, as a variant or
misspelling of the descriptive term “shaped CD.”
Moreover, as we said before, the non-standard shape of
applicant’s CD-Rom’s is a significant feature of its goods,
such that “Shape CD” is merely descriptive even apart from
the fact that “Shape CD” is a misspelling of the common
descriptive term “shaped CD.”
Ser. No. 75/089,625
4
With respect to the refusal in Class 16, applicant
states that its booklets, pamphlets and manuals for
explaining or describing the CD’s typically tell about the
content of the CD or supplement the material in the CD.
However, this explanation does not appear in the record,
and has been presented for the first time in the request
for reconsideration. As such, as noted above, the evidence
is untimely. In any event, the identification of goods
does not limit the written materials to descriptions of the
contents of the CD’s. The goods are identified as
“booklets, pamphlets, and manuals for explaining or
describing the CD-ROM’s and compact discs as mentioned
above” [i.e., CD-Rom’s with interactive multimedia programs
or interactive media software]. This identification
encompasses written materials which explain or describe
shaped CD’s, and therefore “Shape CD” is merely descriptive
of a feature of the written materials.
The request for reconsideration is denied.
E. J. Seeherman
C. E. Walters
C. M. Bottorff
Administrative Trademark Judges
Trademark Trial and Appeal Board