David Lloyd

Trademark Trial and Appeal Board

Apr 27, 2015

No. 85639318 (T.T.A.B. Apr. 27, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 27, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Lloyd
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Serial No. 85639318
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Lisa N. Kaufman of the Law Office of Lisa N. Kaufman, P.A.,
for David Lloyd.
Mary J. Rossman, Trademark Examining Attorney, Law Office 109,
Dan Vavonese, Managing Attorney.
_____

Before Seeherman, Bergsman and Masiello,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
David Lloyd (“Applicant”) seeks registration on the Principal Register of the
mark ARTISTS COLLECTIVE ENTERPRISE (in standard characters) for the goods
and services listed below:1
Digital materials, namely, downloadable graphic novels
and comic books; downloadable podcasts in the field of
graphic novels and comic books, in Class 9;

1 Application Serial No. 85639318 was filed on May 31, 2012, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
Serial No. 85639318
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Subscriptions to digital and electronic graphic novels and
comic books, in Class 35; and
Entertainment services, namely, providing online non-
downloadable comic books and graphic novels; providing
podcasts in the field of graphic novels and comic books;
multimedia publishing of graphic novel and comic book
magazines; digital graphic novel and comic book
publishing services; providing a website featuring non-
downloadable graphic novels and comic books; publishing
of comic book web magazines, in Class 41.
The Trademark Examining Attorney has issued a final refusal of registration of
Applicant’s mark under Section 2(e)(1) of the Trademark Act of 1946, 15 U.S.C. §
1052(e)(1), on the ground that Applicant’s mark is merely descriptive of Applicant’s
goods and services, and Applicant has appealed that refusal. According to the
Trademark Examining Attorney, “the identified goods and services are a collection
of graphic novels and comics by artists gathered together (e.g., collected) by
applicant and put out as an online magazine. A magazine is a collective work and
here is provided by an enterprise, applicant, who collects the works of artists,
including himself and other artists.”2 Applicant argues, to the contrary, that the
mark is suggestive because even the Trademark Examining Attorney had to use a
multiple-step reasoning process to explain why Applicant’s mark is merely
descriptive.3
We affirm the refusal to register.
A term is merely descriptive of goods or services within the meaning of Section
2(e)(1) if it forthwith conveys an immediate idea of an ingredient, quality,

2 Trademark Examining Attorney’s Brief, 10 TTABVUE 4.
3 Applicant’s Brief, 8 TTABVUE 7-10.
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characteristic, feature, function, purpose or use of the goods or services. In re
Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012). See also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). A
term that describes the source of the goods or services is also considered merely
descriptive under Section 2(e)(1). In re Major League Umpires, 60 USPQ2d 1059,
1060 (TTAB 2001) (“It is well-established that a term which describes the provider
of goods or services is also merely descriptive of those goods and services.”). See also
In re Omaha Nat’l Bank, 819 F.2d 1117, 2 USPQ2d 1859, 1861 (Fed. Cir. 1987)
(rejecting argument that descriptiveness should be limited to a quality or
characteristic of the good or service itself and holding that it includes a designation
descriptive of the service provider (i.e., FirsTier is descriptive of banking services
because the mark describes a “large high-quality bank”)). In this appeal, the issue
before us is whether the mark describes the source of the goods and services.
Whether a mark is merely descriptive is determined in relation to the goods or
services for which registration is sought and the context in which the term is used,
not in the abstract or on the basis of guesswork. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224
(TTAB 2002). This requires consideration of the context in which the mark is used
or intended to be used in connection with those goods or services, and the possible
significance that the mark would have to the average purchaser of the goods or
services in the relevant marketplace. See In re Chamber of Commerce of the U.S.,
102 USPQ2d at 1219; In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d
Serial No. 85639318
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1828, 1831 (Fed. Cir. 2007); In re Abcor Dev. Corp., 200 USPQ at 218; In re Venture
Lending Assocs., 226 USPQ 285 (TTAB 1985).
When two or more merely descriptive terms are combined, the determination of
whether the composite mark also has a merely descriptive significance turns on the
question of whether the combination of terms evokes a new, nondescriptive
commercial impression. If each component retains its merely descriptive
significance in relation to the goods or services, the combination results in a
composite that is itself merely descriptive. In re Oppedahl & Larson LLP, 373 F.3d
1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004), quoting, Estate of P.D. Beckwith, Inc.
v. Commissioner, 252 U.S. 538, 543 (1920). See also In re Tower Tech, Inc., 64
USPQ2d at 1318 (SMARTTOWER merely descriptive of commercial and industrial
cooling towers); In re Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001)
(AGENTBEANS merely descriptive of computer programs for use in developing and
deploying application programs); In re Putman Publishing Co., 39 USPQ2d 2021
(TTAB 1996) (FOOD & BEVERAGE ONLINE merely descriptive of news and
information services in the food processing industry). However, a mark comprising a
combination of merely descriptive components is registrable if the combination of
terms creates a unitary mark with a non-descriptive meaning, or a double entendre
with one meaning being non-descriptive, or if the composite has an incongruous
meaning as applied to the goods or services. See In re Colonial Stores Inc., 394 F.2d
549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE for “bakery products”); In re
Shutts, 217 USPQ 363 (TTAB 1983) (SNO-RAKE for “a snow removal hand tool
Serial No. 85639318
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having a handle with a snow-removing head at one end, the head being of solid
uninterrupted construction without prongs”).
“If one must exercise mature thought or follow a multi-stage reasoning process
in order to determine what characteristics the term identifies, the term is
suggestive rather than merely descriptive.” In re Tennis in the Round, Inc., 199
USPQ 496, 497 (TTAB 1978). See also In re Shutts, 217 USPQ at 364-365; In re
Universal Water Systems, Inc., 209 USPQ 165, 166 (TTAB 1980).
According to the article “How to Start an Artist Collective,” “An artist collective
is a group of artists who work together to achieve a common goal. The common goal
is what defines the collective. It can be anything from sharing studio space [,] the
cost of materials, to working collectively to inspire socio-political awareness in the
community through exhibits and gallery openings. In an artist collective of any
type, equally sharing ownership, status, expenses and risk is expected.”4 See also
the Wikipedia entry for “artist collective” attached to the September 24, 2012 Office
Action (“An artist collective is an initiative that is the result of a group of artists
working together, usually under their own management, towards shared aims.”).5

4 “How to Start an Artist Collective,” article from eHow website (ehow.com), attached to the
April 25, 2013 Office Action.
5 Applicant objected to our consideration of the Wikipedia entry on the ground that
Wikipedia is unreliable. Applicant’s Brief, 8 TTABVUE 13-14. Applicant’s objection is
overruled. With respect to evidence taken from the online Wikipedia encyclopedia,
www.wikipedia.org, although the Board has noted that “[t]here are inherent problems
regarding the reliability of Wikipedia entries because Wikipedia is a collaborative website
that permits anyone to edit the entries,” we will accept such evidence in certain
circumstances:
[T]he Board will consider evidence taken from Wikipedia so
long as the non-offering party has an opportunity to rebut that
evidence by submitting other evidence that may call into
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The record includes numerous examples of the term “artist collective” used to
describe such an enterprise. The examples listed below are representative:
1. Twilight Artist Collective (twilightart.net): “an eclectic group of contemporary
artists (largely based in Seattle).”6
2. Arroyo Arts Collective (arroyoartscollective.com): “The Arroyo Arts Collective
is a grassroots, community-based organization of artists, poets, musicians,
craftspersons [sic] and supporters of the creative community in Northeast Los
Angeles.”7
3. Smithsonian Institution Traveling Exhibition Service webpage
(sites.si.edu/exhibitions/exhibits/newcombPottery):
Women, Art, and Social Change
The Newcomb Pottery Enterprise

question the accuracy of the particular Wikipedia
information. Our consideration of Wikipedia evidence is with
the recognition of the limitations inherent with Wikipedia (e.g.,
that anyone can edit it and submit intentionally false or
erroneous information)....
As a collaborative online encyclopedia, Wikipedia is a
secondary source of information or a compilation based on
other sources. As recommended by the editors of Wikipedia,
the information in a particular article should be corroborated.
The better practice with respect to Wikipedia evidence is to
corroborate the information with other reliable sources,
including Wikipedia’s sources.
In re IP Carrier Consulting Grp., 84 USPQ2d 1028, 1032–33 (TTAB 2007). Subsequent to
the time the Trademark Examining Attorney submitted the Wikipedia evidence in her
September 24, 2013 Office Action, Applicant filed two responses, on March 20, 2013 and
October 24, 2013, and, therefore, had an opportunity to rebut the Wikipedia evidence if he
believed it was incorrect.
6 September 24, 2012 Office Action.
7 Id.
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* * *
In 1895, the H. Sophie Newcomb Memorial College,
Tulane University’s women coordinate college, established
the Newcomb Pottery in New Orleans, and conceived it as
part artist collective, part social experiment, and part
business enterprise initiative under the auspices of an
educational program.8
4. Knowledge Artists Collective Enterprise Movement advertisement:9

In his March 20, 2013 response to an Office Action, Applicant referenced his
ACES WEEKLY website (acesweekly.co.uk/about) in response to the Trademark
Examining Attorney’s request for information and materials:
In response to the Examining Attorney’s request for
information and materials, because this is an intent to
use application, the products and services set forth in the
application have not yet been launched. Various graphic
novelists will make contributions to the online digital
podcast versions of the graphic novels to be published and
disseminated on a regular basis, as yet to be determined.
The Applicant, however, does offer similar products and
services in the UK which can be found at the following
website: http://www.acesweekly.co.uk/about.

8 Id.
9 April 25, 2013 Office Action.
Serial No. 85639318
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The ACES WEEKLY website referenced by Applicant indicates that Applicant’s
proposed services are in the nature of an artist collective because it is a group of
graphic novel artists joining together to publish their works.10 The website provided
the following information regarding Applicant’s services:
ACES WEEKLY is an exclusively digital comic art
magazine which features some of the world’s finest
creators of comic art. The guy who brought you V FOR
VENDETTA – David Lloyd – has gathered together top
talents from around the globe to bring you this
revolutionary publishing project!
An interview with Applicant posted on the Forbidden Planet International Blog
(forbiddenplanet.co.uk) further supports the finding that Applicant’s services are in
the nature of an artist collective.11 The interviewer asked Applicant how he
persuaded other graphic novel artists to contribute to his publication:

Finally, the word “Enterprise” is defined, inter alia, as “a unit of economic
organization or activation; especially a business organization” or “a systematic

10 April 25, 2013 Office Action.
11 December 16, 2013 Office Action.
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purposeful activity .”12
The term “Artists Collective” means a group of artists working together - in this
case, to publish a graphic novel magazine - and the word “Enterprise” means a
business organization. The composite mark ARTISTS COLLECTIVE
ENTERPRISE, when used in connection with the identified goods and services,
directly conveys the meaning of a group of artists working together to publish a
graphic novel magazine. That is consistent with the information Applicant
discussed about his business through his website at acesweekly.co.uk: that is,
Applicant “has gathered together top talents from around the globe [i.e., an artist
collective] to bring you this revolutionary publishing project” (i.e., an enterprise).
The composite mark ARTISTS COLLECTIVE ENTERPRISE describes the provider
of the identified goods and services. Thus, the combination of the terms “Artists
Collective” and “Enterprise” forming Applicant’s mark when used in connection
with graphic novels and the publishing of graphic novels retains the descriptive
significance of the individual terms in the combined term, such that the mark as a
whole directly describes the provider of the goods and services. Accordingly, the
mark ARTISTS COLLECTIVE ENTERPRISE when used in connection with
Applicant’s goods and services is merely descriptive.

12 Merriam-webster.com attached to the September 24, 2012 Office Action. See also the
definition at education.yahoo.com/reference/dictionary (“an undertaking, especially one of
some scope, complication, and risk” or “a business organization”) attached to the December
16, 2013 Office Action.
Serial No. 85639318
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In reaching this conclusion, we have considered Applicant’s argument that his
mark is suggestive because each of the component words has multiple meanings
and that even the Trademark Examining Attorney was not able to settle on which
of the multiple definitions applied.13
Applicant reiterates that simply because each individual
term in Applicant’s mark is descriptiveon [sic] on its own,
this does not lead to the conclusion that the combination
of terms is merely descriptive of Applicant’s downloadable
and non-loadable online graphic novels and the digital
publishing and podcasting of its graphic novel magazines
offered by subscription.14
Applicant further contends that In re Major League Umpires is inapposite because
the mark MAJOR LEAGUE UMPIRE does not contain any ambiguous language.15
As discussed above, when applied to graphic novels and their various means of
publication, the mark ARTISTS COLLECTIVE ENTERPRISE directly describes the
provider of the goods and services. Here, the evidence shows that Applicant is
working with a group of graphic novel artists (i.e., an artist collective) to publish
graphic novels as a business enterprise.

13 Applicant’s Brief, 8 TTABVUE 12-14. The Trademark Attorney’s ability to articulate why
the mark is merely descriptive is not at issue. The facts in evidence are what is critical in
our determination of whether the mark is merely descriptive. “The Board need not find that
the examining attorney’s rationale was correct in order to affirm the refusal to register, but
rather may rely on a different rationale.” TBMP § 1217 (June 2014). See also In re AFG
Industries Inc., 17 USPQ2d 1162, 1163 (TTAB 1990) (“we note that the Board reviews an
Examining Attorney's decision on appeal to determine if the refusal to register was
correctly made. In doing so, the Board need not adopt the rationale of the Examining
Attorney.”); In re Avocet, Inc., 227 USPQ 566, 567 (TTAB 1985) (“the Trademark Trial and
Appeal Board, when exercising its appellate jurisdiction under Section 20 of the Lanham
Act (15 USC §1070), reviews the ‘decision’ of the Examining Attorney for its correctness and
need not adopt the Examining Attorney's rationale in every respect in order to affirm the
decision of the Examining Attorney.”).
14 Applicant’s Brief, 8 TTABVUE 17.
15 Applicant’s Brief, 8 TTABVUE 11.
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Applicant argues that the average purchaser of his graphic novels, namely comic
book enthusiasts, will not view the mark as being descriptive because they will have
to exercise thought and perception to associate graphic novels with ARTISTS
COLLECTIVE ENTERPRISE.16 We are not persuaded by this argument. Assuming
that the consumers of the identified goods and services are comic book enthusiasts,
we see no reason why they would be unfamiliar with the meaning of the terms
ARTISTS COLLECTIVE or ENTERPRISE, or would not immediately understand,
when these terms are combined in the mark ARTISTS COLLECTIVE
ENTERPRISE, that the mark describes the source of the goods and services.
Finally, Applicant argues that competitors have no need to use ARTISTS
COLLECTIVE ENTERPRISE to describe their similar goods and services.17 The
Board has previously addressed such an argument:
Further, with respect to applicant's statement that “the
Examiner has also failed to show that any competitor has
used, or will ever have need to use, the terms
URBANHOUZING or HOUZING in connection with real
estate services,” brief, pp. 5-6, the test for descriptiveness
is set out in the preceding sentence [referring to the test
for descriptiveness set forth supra]. There is no
requirement that the Office prove actual competitor use
or need; it is well established that even if an applicant is
the only user of a merely descriptive term, this does not
justify registration of that term. See In re BetaBattInc.,
89 USPQ2d 1152, 1156 (TTAB 2008); In re Sun
Microsystems, Inc., 59 USPQ2d 1084, 1087 (TTAB 2001);
In re Acuson, 225 USPQ 790, 792 (TTAB 1985).
In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009).

16 Applicant’s Brief, 8 TTABVUE 17.
17 Applicant’s Brief, 8 TTABVUE 18.
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Decision: The refusal to register Applicant’s mark
ARTISTS COLLECTIVE ENTERPRISE is affirmed.