Daniel Malley

Trademark Trial and Appeal Board

Oct 6, 1999

No. 75250802 (T.T.A.B. Oct. 6, 1999)

Paper No. 9
HANAK/md
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB OCT. 6, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Daniel Malley
________
Serial No. 75/250,802
_______
Kenneth L. Mitchell of Woodling, Krost & Rust for Daniel
Malley.
Darlene D. Bullock, Trademark Examining Attorney, Law
Office 101 (Jerry Price, Managing Attorney)
_______
Before Hanak, Quinn and Bottorff, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Daniel Malley (applicant) seeks to register PRETZEL
BAR in typed drawing form for “candy.” The intent-to-use
application was filed on March 3, 1997.
The Examining Attorney refused registration pursuant
to Section 2(e)(1) of the Trademark Act on the basis that
applicant’s mark is merely descriptive of applicant’s
goods.
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When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs. Applicant did not request a
hearing.
As has been stated repeatedly, “a term is merely
descriptive if it forthwith conveys an immediate idea of
the ingredients, qualities or characteristics of the goods
[or services].” In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 218 (CCPA 1978); Abercrombie & Fitch Co.
v. Hunting World, Inc., 537 F.2d 4, 189 USPQ 759, 765 (2nd
Cir. 1976). Moreover, the descriptiveness of a term must
be determined as applied “to the goods or services
involved,” that is, the goods or services set forth in the
application. Abcor, 200 USPQ at 218.
It is applicant’s contention that his mark is not
merely descriptive because his “goods are not pretzel-
shaped. Rather, the goods are pieces of pretzels in a
chocolate bar.” (Applicant’s brief page 2).
We find applicant’s argument to be unpersuasive.
Obviously, the word “bar” is highly descriptive as applied
to candy in that it indicates that the candy is in the
shape of a bar. Indeed, we believe that almost all
consumers are well aware of the meaning of the term “candy
bar.”
Ser No. 75/250,802
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Moreover, it is a common practice to insert in candy
bars various types of ingredients such as nuts, pieces of
fruit etc. Indeed, applicant has conceded that his own
goods are in actuality “pieces of pretzels within a
chocolate bar.” (Applicant’s brief page 2). Thus, upon
seeing the term “pretzel bar” on candy, consumers would
immediately recognize that this candy is in the shape of a
bar and contains, in some form, pretzels.
We will concede that the term “pretzel bar” when used
on candy does not inform consumers precisely how the
pretzels or pieces of pretzels are incorporated into the
bar. However, in order to be held merely descriptive, a
term “need not describe [the goods] exactly.” In re
Entenmann’s Inc., 15 USPQ2d 1750, 1751 (TTAB 1990), aff’d
(Fed. Cir. February 13, 1991). The following comments from
the Entenmann’s case are particularly instructive: “By way
of analogy, the term ‘nut bread’ does not inform purchasers
of the particular type of nuts found in a particular loaf
of nut bread. Nevertheless, the fact that the term ‘nut
bread’ does not inform purchasers of the precise type of
nuts in the bread does not mean that the term ‘nut bread’
is not descriptive of, and indeed generic for, bread.” 15
USPQ2d at 1751.
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In short, we find that the term “pretzel bar” is
descriptive when applied to candy despite the fact that
consumers may not be able to discern precisely how the
pretzels (or bits thereof) are incorporated into the bar
and despite the fact that consumers will not be able to
discern, simply from viewing applicant’s purported mark,
the precise shape of the bar. Whether applicant’s proposed
candy will be in the shape of a traditional candy bar, or
instead will be in the shape of a bar resembling a straight
pretzel simply does not mean that applicant’s mark is not
merely descriptive when applied to candy.
Decision: The refusal to register is affirmed.
E. W. Hanak
T. J. Quinn
C. M. Bottorff
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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