Dakota Natural Foods, Inc.

Trademark Trial and Appeal Board

Aug 28, 2007

No. 78326818 (T.T.A.B. Aug. 28, 2007)

Mailed:
Aug. 28, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Dakota Natural Foods, Inc.
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Serial No. 78326818
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Garrett M. Weber of Lindquist & Vennum P.L.L.P. for Dakota
Natural Foods, Inc.

Martha L. Fromm, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
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Before Bucher, Grendel and Holtzman, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

Dakota Natural Foods, Inc., applicant herein, seeks
registration on the Supplemental Register of the term
JUMBOZ (in standard character form) for goods identified in
the application as “processed sunflower seeds.”1

1 Serial No. 78326818, filed on November 12, 2003. The
application is based on use in commerce under Trademark Act
Section 1(a), 15 U.S.C. §1051(a). May 31, 2003 is alleged in the
application as the date of first use of the mark anywhere and the
date of first use of the mark in commerce. In the application as
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78326818
2
At issue in this appeal is the Trademark Examining
Attorney’s final refusal of registration on the ground that
the term JUMBOZ is generic for and incapable of
distinguishing applicant’s goods, and that it therefore is
not registrable on the Supplemental Register. Trademark
Act Section 23(c), 15 U.S.C. §1091(c).
Applicant and the Trademark Examining Attorney have
filed appeal briefs. After careful consideration of the
evidence of record and the arguments of counsel, we affirm
the refusal to register.
To be registrable on the Supplemental Register, the
matter sought to be registered must be “capable of
distinguishing the applicant’s goods or services.”
Trademark Act Section 23(c). “Generic terms are common
names that the relevant purchasing public understands
primarily as describing the genus of goods or services
being sold. They are by definition incapable of indicating
a particular source of the goods or services.” In re Dial-
A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807,
1810 (Fed. Cir. 2001)(citations omitted). Because they are

originally filed, applicant sought registration on the Principal
Register. After the Trademark Examining Attorney issued a final
refusal of registration on the Principal Register on the ground
of mere descriptiveness, applicant amended the application to one
seeking registration on the Supplemental Register.

Ser. No. 78326818
3
incapable of identifying source, generic terms are not
registrable on the Supplemental Register.
Our primary reviewing court has stated:
The determination of whether a mark is generic
is made according to a two-part inquiry:
“First, what is the genus of the goods or
services at issue? Second, is the term sought
to be registered ... understood by the relevant
purchasing public primarily to refer to that
genus of goods or services?”

In re Dial-A-Mattress Operating Corp., supra, 57 USPQ2d at
1810, quoting from H. Marvin Ginn Corp. v. Int’l Ass’n of
Fire Chiefs, Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530
(Fed. Cir. 1986). The Office bears the burden of
establishing genericness based on clear evidence of generic
use. In re American Fertility Society, 188 F.3d 1341, 51
USPQ2d 1832 (Fed. Cir. 1999). “Any competent source
suffices to show the relevant purchasing public’s
understanding of a contested term, including purchaser
testimony, consumer surveys, dictionary definitions, trade
journals, newspapers and other publications.” In re Dial-
A-Mattress Operating Corp., supra, 57 USPQ2d at 1810.
Our analysis begins with a determination of the genus
of the services at issue. See H. Marvin Ginn, supra. We
find in this case that the genus of services is
commensurate with applicant’s identification of goods in
the application, i.e., “processed sunflower seeds.”
Ser. No. 78326818
4
We next must determine whether the purchasing public
understands JUMBOZ to refer to the genus of goods at issue.
See H. Marvin Ginn, supra.
Initially, it is settled that a mere misspelling of a
generic term does not negate its genericness. See, e.g.,
In re Stanbel Inc., 16 USPQ2d 1469 (TTAB 1990), aff’d, 20
USPQ2d 1319 (Fed. Cir. 1991)(ICE PAK held generic for ice
packs); In re Hubbard Milling Co., 6 USPQ2d 1239 (TTAB
1987)(MINERAL-LYX held generic for mineral licks for
feeding livestock). In this case, we find that JUMBOZ is
the legal equivalent of “jumbos”; applicant does not
contend otherwise. Thus, if “jumbos” is found to be
generic for applicant’s goods, so also will JUMBOZ.
The Trademark Examining Attorney has made of record
several dictionary definitions of the word “jumbo.” The
American Heritage Dictionary of the English Language (4th
ed. 2000) defines it as “n: An unusually large person,
animal or thing; adj: Unusually large: jumbo shrimp; a
jumbo jet.” The Merriam-Webster Online Dictionary defines
it as “n: a very large specimen of its kind.” The MSN
Encarta Dictionary defines it as “n: large thing;
something or somebody that is extra large (often used
before a noun).” We reject applicant’s argument that
because sunflower seeds are inherently small, they cannot
Ser. No. 78326818
5
be considered “jumbo.” Something is jumbo if it is “a very
large specimen of its kind”; the comparison to be made is
between relative sizes of sunflower seeds, not between
sunflower seeds in general and inherently large items such
as jumbo jets (in the example given in one of the above-
quoted dictionary definitions).
Applicant’s “processed sunflower seeds” are “jumbo”
sunflower seeds, under these dictionary definitions. That
is, the seeds are “unusually large,” and each is “a very
large specimen of its kind.” Applicant’s packaging,
submitted as applicant’s specimen of use, includes the
following text: “When size matters! JUMBOZ BIG Salted
Sunflower Seeds.” The record also includes excerpts from
two websites which appear to refer directly to applicant’s
JUMBOZ sunflower seeds, as follows (emphasis added):
Dakota Kid “Jumboz” 16 oz (1 case) “Buy a case
and save!” A case is 12-16 oz packages of these
larger, 100% natural jumbo sunflower seeds,
roasted in their shells and lightly salted.

(www.care2.com); and
“Jumboz” are bigger than regular sunflower seeds.
The jumbo seeds are the only difference from the
original Dakota Kid Sunflower Seeds ...

(www.dakotafree.com).
This evidence of applicant’s own generic usage of “jumbo”
in relation to its sunflower seeds is strong evidence of
Ser. No. 78326818
6
genericness. See In re Gould Paper Corp., 834 F.2d 1017, 5
USPQ2d 1110 (Fed. Cir. 1987).
In addition to this evidence of applicant’s own use of
“jumbo” to refer to its sunflower seeds, the record
includes printouts from numerous additional websites which
clearly show that “jumbo” identifies a particular type or
size of sunflower seed. For example (emphasis added):
What’s behind such a concerted effort to produce
large seed? One of the answers lies in Spain,
where demand is strong for jumbo-sized seeds.

(www.sunflowernsa.com/magazine);
Blackstripes Sunflower seeds are produced in two
types, the Long and the Round type. Sizes are:
Jumbo ... Large ... Medium ... Small ...

(www.guillermo.cl);
INSHELL SUNFLOWER SEEDS – Jumbo, large and medium
inshell confectionery sunflower seeds.

(www.ait.org);
Jumbo snacks by Klein Bros., Ltd. offers jumbo
sized sunflower seeds, arroyo seco nuts, walnuts
...

(www.dmoz.org);
White millet, red millet, oat groats, sunflower
seeds (jumbo, stripes and black) ...

(www.go4worldbusiness.com);
Dakota Style also makes pretzels, jumbo sunflower
seeds (regular and barbecue), popcorn and salsa.

(www.godserver.com);
Ser. No. 78326818
7
1 lb. Roasted, salted, jumbo sunflower seeds in
their shells.

(www.sierranuthouse.com);
Ronnie’s Original Jumbo Seeds – Offers jumbo
roasted sunflower seeds, peanuts, soy nuts,
pumpkin seeds and pistachios.

(www.skaffe.com);
I made up some Christmas gift packets of the
jumbo sunflower seeds to share with family
members.

(www.bluebirdmeadows.com); and

But not all of the sunflower seeds rolling into
the company’s plant on 18-wheelers are jumbo. Of
the four sizes of sunflower seeds, jumbos are
exported.

(www.bizjournals.com).
This evidence clearly establishes that “jumbo” is used
to refer to a particular type of sunflower seed. It is
used as a noun in the last excerpt quoted above - “...
jumbos are exported.” The dictionary evidence set forth
above likewise makes it clear that “jumbo” (and its plural,
“jumbos”) can be used as a noun. In any event, and
contrary to applicant’s argument, it is settled that
adjectives, not just nouns, can be deemed to be generic.
Adjectives are generic if they name a key characteristic or
feature of the goods. See, e.g., Roselux Chemical Co.,
Inc. v. Parsons Ammonia Co., Inc., 299 F.2d 855, 132 USPQ
627 (CCPA 1962)(SUDSY generic for ammonia); In re Central
Ser. No. 78326818
8
Sprinkler Co., 49 USPQ2d 1194 (TTAB 1998)(ATTIC generic for
attic sprinklers). See also A.J. Canfield Co. v.
Honickman, 808 F.2d 291, 1 USPQ2d 1364 (3d Cir.
1986)(CHOCOLATE FUDGE generic for diet sodas); Miller
Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 195
USPQ 281 (7th Cir. 1977)(LITE generic for beer).
In summary, we find that the evidence of record
clearly establishes that “jumbos” is a term used to refer
to extra-large or jumbo sunflower seeds. Based on this
evidence, we conclude that JUMBOZ, the legal equivalent of
JUMBOS, is generic for applicant’s “processed sunflower
seeds.” As such, it is incapable of distinguishing
applicant’s goods, and therefore is unregistrable on the
Supplemental Register.

Decision: The refusal to register is affirmed.