Denim Mania Apparel, Inc.

Trademark Trial and Appeal Board

Feb 25, 2008

No. 76638064 (T.T.A.B. Feb. 25, 2008)

Mailed:
February 25, 2008
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Denim Mania Apparel, Inc.
________

Serial No. 76638064
_______

Vivien Chung of CVG Apparel, Inc. for Denim Mania Apparel,
Inc.

Steven W. Jackson, Trademark Examining Attorney, Law Office
107 (J. Leslie Bishop, Managing Attorney).
_______

Before Bucher, Grendel and Bergsman, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Denim Mania Apparel, Inc. seeks registration on the
Principal Register of the mark VINTAGE CHINA (in standard
character format) for goods identified in the application as
follows:
“clothing, namely, jeans, jackets, pants,
skirts, shorts, sweaters, shirts, belts,
footwear, and headwear” in International
Class 25.1

1 Application Serial No. 76638064 was filed by Denim Mania
Apparel, Inc. on May 5, 2005 based upon applicant’s allegation of
first use anywhere and first use in commerce at least as early as
December 2004. No claim is made to the word “China” apart from
the mark as shown. It appears as if this application was
assigned to CVG Apparel, Inc. in 2006 (Reel 3163 / Frame 0189)
and back to Denim Mania Apparel, Inc. again in 2007 (Reel 3502 /
Frame 0451).

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76638064
- 2 -
This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register this designation based upon the ground that it is
primarily geographically descriptive of applicant’s goods
under Trademark Act Section 2(e)(2), 15 U.S.C. § 1052(e)(2).
Applicant and the Trademark Examining Attorney have
fully briefed the appeal. After careful consideration of
the evidence and arguments of record, we reverse the refusal
to register.
A mark or portion of a mark is primarily geographically
descriptive in connection with an applicant’s goods if the
Trademark Examining Attorney establishes: (i) that the
primary significance of the mark or portion thereof is that
of the name of a place generally known to the public, and
(ii) that the public would make a goods/place association,
that is, believe that the goods on which the mark or portion
thereof is sought to be registered originate in that place.
See In re Brouwerij Nacional Balashi NV, 80 USPQ2d 1820,
1821 (TTAB 2006); In re JT Tobacconists, 59 USPQ2d 1080,
1081-82 (TTAB 2001); University Book Store v. University of
Wisconsin Board of Regents, 33 USPQ2d 1385, 1402 (TTAB
1994); and In re California Pizza Kitchen Inc., 10 USPQ2d
1704, 1705 (TTAB 1988), citing In re Societe Generale des
Serial No. 76638064
- 3 -
Eaux Minerales de Vittel S.A., 824 F.2d 957, 3 USPQ2d 1450,
1452 (Fed. Cir. 1987).
The record demonstrates that “China” is a known
geographic location that is certainly neither remote nor
obscure. Additionally, applicant admits that the goods do,
indeed, originate in China. Accordingly, applicant has
disclaimed the word “China” apart from the mark as shown.
In effect, applicant and the Trademark Examining
Attorney are primarily at odds over whether this entire
composite mark is barred by Section 2 of the Act, or
contrariwise, whether the combination of these two words
creates a composite that is distinctive enough as a source
identifier for the listed goods to be registered with a
disclaimer of the geographical designation.
The examining attorney has submitted a substantial
amount of evidence excerpted from articles retrieved from
Internet websites and from third-party registrations showing
that the word “Vintage” is merely descriptive of clothing
items. We have reviewed all of this evidence, and find that
the term “Vintage” is, without a doubt, descriptive of
“vintage clothing.” Yet, applicant is adamant in arguing
that the Trademark Examining Attorney must be reversed
inasmuch as applicant has demonstrated that its goods are
not actually "vintage clothing." On yet the other hand, we
Serial No. 76638064
- 4 -
find that nothing in applicant’s identification of goods
precludes the use of this mark on "vintage” clothing.
Hence, this term alone would appear to be descriptive of
vintage clothing (or alternatively, barred as deceptively
misdescriptive on non-vintage clothing). We conclude, then,
that standing alone, each of these terms are barred from
registration by the Statute.
However, we turn to applicant’s other arguments for
reversing the Trademark Examining Attorney, namely that the
word “vintage” has multiple meanings, such that in the
context of this combination, its mark creates the
connotation of “Ancient China,” or even for some, this mark
may well present a "double entendre" because the combined
mark as a whole has the connotation of “antique chinaware.”
In reviewing this mark in its entirety, the question
before us is whether purchasers will subconsciously or
automatically insert the bracketed thought of VINTAGE
[clothing from] CHINA? If this were the case, the term
clearly conveys immediately the connotation of “classic”
clothing from the nation of “China.”
However, in this mark, the term “Vintage” modifies the
word “China,” not “clothing.” We note from the dictionary
entry placed into the record by the Trademark Examining
Attorney that the word “vintage” also has the connotation of
Serial No. 76638064
- 5 -
“old or outmoded.” Accordingly, is it not unreasonable to
conclude that the use of the leading term “Vintage” within
this combined term might well evoke the distant, historical
past or culture of “Ancient China.” Based on the
information in this record, this imagery is certainly
consistent with applicant’s marketing strategy.
Alternatively, we agree with applicant that, as a
corollary, it is also reasonable to assume that this mark
may well present to some potential consumers a “double
entendre” inasmuch as the combined mark “Vintage China” can
be viewed as a term of art, meaning “antique chinaware.”
See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382
(CCPA 1968) [SUGAR & SPICE registrable for bakery products];
In re Kraft, Inc., 218 USPQ 571, 573 (TTAB 1983)
[requirement for a disclaimer of the word “Sheer” apart from
the mark SHEER ELEGANCE unnecessary for pantyhose]; In re
Simmons Co., 189 USPQ 352 (TTAB 1976) [THE HARD LINE for
mattresses and bed springs]; In re Delaware Punch Co., 186
USPQ 63 (TTAB 1975) [THE SOFT PUNCH for noncarbonated soft
drink]; and In re National Tea Co., 144 USPQ 286 (TTAB 1965)
[NO BONES ABOUT IT for fresh pre-cooked ham].
Neither of these latter two possible connotations is
merely descriptive in relation to the goods, and hence, we
find that the composite mark is not barred by Section 2 of
Serial No. 76638064
- 6 -
the Statute. We conclude that this composite is neither
primarily geographically descriptive of applicant’s goods
nor is it merely descriptive (or deceptively misdescriptive)
of them. Rather, a multistage reasoning process or
imagination would be necessary in order for customers or
prospective purchasers of these goods to conclude anything
meaningful about the features of the goods.
The term VINTAGE CHINA, when used in connection with
clothing, namely, jeans, jackets, pants, skirts, shorts,
sweaters, shirts, belts, footwear, and headwear, has not
been shown immediately or directly to describe any
significant feature or aspect of applicant’s goods.
Accordingly, we agree with applicant that the term “Vintage
China” should not be barred from registration based upon any
subsection of Section 2 of the Lanham Act.
Decision: The refusal to register is reversed.