Doc Popcorn, LLC

Trademark Trial and Appeal Board

Apr 29, 2021

88151165 (T.T.A.B. Apr. 29, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Doc Popcorn, LLC
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Serial No. 88151165
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Todd E. Stockwell of Stockwell & Smedley, PSC,
for Doc Popcorn, LLC.
Mark Shiner, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
_____

Before Kuhlke, Lykos and Coggins,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Doc Popcorn, LLC (“Applicant”) seeks registration on the Principal Register
under Section 2(f), 15 U.S.C. § 1052(f), for the proposed mark DENVER MIX in
standard characters for “popcorn,” in International Class 30.1
The Trademark Examining Attorney has refused registration of Applicant’s
proposed mark under (i) Trademark Act Sections 1, 2 and 45, 15 U.S.C. §§ 1051,

1 Application Serial No. 88151165 filed on October 11, 2018, based on an allegation of first
use and first use in commerce on August 1, 2014, under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a).
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1052, 1127, on the basis that the proposed mark is generic; and (ii) in the alternative,
Section 2(e)(1), 15 U.S.C. § 2(e)(1), on the basis that the proposed mark is merely
descriptive of Applicant’s services and Applicant’s showing of acquired
distinctiveness under Section 2(f) is insufficient.
I. Background
Initially the Examining Attorney refused registration under Section 2(e)(1) based
on mere descriptiveness and Section 2(e)(2), 15 U.S.C. § 1052(e)(2), based on primary
geographic descriptiveness. In the first Final Office Action the Examining Attorney
withdrew the Section 2(e)(2) refusal but maintained the mere descriptiveness refusal.
Applicant requested reconsideration arguing DENVER MIX has acquired
distinctiveness and requesting registration under Section 2(f). The Examining
Attorney then issued a Nonfinal Office Action, refusing registration under Sections
1, 2, and 45 based on genericness, maintaining the mere descriptiveness refusal and
finding the evidence of acquired distinctiveness insufficient. After the second Final
Office Action, Applicant twice requested reconsideration and filed a notice of appeal
on October 22, 2020. On November 12, 2020, the Examining Attorney denied the last
request; the appeal was subsequently resumed and briefs have been filed. We affirm
the refusals.2

2 Citations to TTABVUE throughout the decision are to the Board’s public online database
that contains the appeal file, available on the USPTO website, www.USPTO.gov. The first
number represents the docket number in the TTABVUE electronic case file and the second
represents the page number(s).
Citations to the examination record refer to the USPTO’s online Trademark Status and
Document Retrieval system (TSDR).
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II. Is the Term DENVER MIX Generic for Popcorn?
“A generic term ‘is the common descriptive name of a class of goods or services.’
[citation omitted]. A generic mark, being the ‘ultimate in descriptiveness,’ cannot
acquire distinctiveness.” Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127
USPQ2d 1041, 1045 (Fed. Cir. 2018) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of
Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986)); see also USPTO v.
Booking.com B.V., 140 S. Ct. 2298, 2020 USPQ2d 10729, *1 (2020). Whether a
proposed mark is generic rests on its primary significance to the relevant public. In re
Am. Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999); Magic Wand Inc. v.
RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991). Making this determination
“involves a two-step inquiry: First, what is the genus of goods or services at issue? Second,
is the term sought to be registered … understood by the relevant public primarily to refer
to that genus of goods or services?” Marvin Ginn, 228 USPQ at 530; see also Royal Crown,
127 USPQ2d at 1046. “[A] term can be generic for a genus of goods or services if the
relevant public . . . understands the term to refer to a key aspect of that genus.” In re
Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1637 (Fed. Cir. 2016).
Based on the identification which contains no restrictions as to trade channels or
end users, the relevant public is the purchasing or consuming public and entities for
the identified goods, which the evidence discussed below reflects is the general public.
See Magic Wand, 19 USPQ2d at 1553.
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A. Genus of Goods
Because the identification of goods or services in an application defines the scope
of rights that will be accorded the owner of any resulting registration under Section
7(b) of the Trademark Act, 15 U.S.C. § 1057(b), generally “a proper genericness
inquiry focuses on the description of [goods or] services set forth in the [application
or] certificate of registration.” Cordua Rests., 118 USPQ2d at 1636 (quoting Magic
Wand, 19 USPQ2d at 1552). In this case, the identification appropriately expresses the
genus of goods at issue. Thus, the ultimate inquiry is whether the relevant public
understands DENVER MIX to refer to “popcorn.”
B. Does the Relevant Public Understand the Designation Primarily Refers
to the Genus?
In assessing whether the relevant public understands the term primarily to refer
to the genus, “[e]vidence of the public’s understanding of the term may be obtained
from any competent source, such as purchaser testimony, consumer surveys, listings
in dictionaries, trade journals, newspapers and other publications.” In re Merrill
Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir.
1987); see also Cordua Rests., 118 USPQ2d at 1634. In some cases, dictionary
definitions and an applicant’s own recitation of goods may suffice to show genericness.
In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112 (Fed. Cir. 1987); see
also Am. Fertility Soc’y, 51 USPQ2d at 1836.
The Examining Attorney explains the record shows that DENVER MIX identifies
a particular flavor combination. Specifically he argues:
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As applied to popcorn, the evidence of record shows that
the wording “DENVER MIX” identifies a particular flavor
combination as understood by the relevant public. The
word “mix” means a combination of two or more things. See
Oxford Dictionary definition of “mix,” attached to January
23, 2019 First Office Action (“Jan 2019 Office Action”) at
TSDR 48-52 (“Two or more different qualities, things, or
people placed, combined or considered together.”). In the
context of popcorn, the term mix refers to the combination
of two popcorn types or flavors. In relation to popcorn, the
evidence shows that the wording “Denver” when used alone
or together with “mix” means the combination of white
cheddar cheese popcorn and caramel popcorn. The record
is replete with evidence of third-party use of “Denver mix”
or “Denver” to identify popcorn consisting of a combination
of caramel popcorn and white cheddar popcorn.
8 TTABVUE 6-7.
The Examining Attorney submitted 25 examples of third-parties using the term
DENVER MIX and 13 using the term DENVER by itself to refer to a key aspect of
the popcorn, specifically the flavor mixture of caramel and white cheddar. A few
representative examples are set forth below:3

3 January 23, 2019 Office Action TSDR at 17, 19, 22, 35, 39; July 23, 2019 Office Action TSDR
at 2, 14, 17; November 12, 2020 Reconsideration Letter TSDR at 2, 3.
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Applicant’s specimen of use also describes DENVER MIX as a cheddar/caramel
flavor: “Snowy white kernels of Triple White Cheddar slaloming down Rocky
Mountains of Caramel Bliss, creating an incredible flavor sensation.”4 See In re Reed
Elsevier Props., 482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007) (appropriate
to consider the applicant’s website to provide context for and inform the
understanding of the identification); In re Steelbuilding.com, 415 F.3d 1293, 75
USPQ2d 1420 (Fed. Cir. 2005) (examining the subject website in order to understand
the meaning of terms).
Applicant does not address all of this evidence of record, but instead simply focuses
its argument on evidence “in the most recent Office Action of five (5) Google search
results on the first page for Applicant’s mark as a popcorn flavor” and states that
these five results are not sufficient to prove the proposed mark is generic. 6
TTABVUE 10. In addition, Applicant points to its search results for “Denver Mix”
without the context of the goods in the search strategy. Applicant argues:
Applicant performed a Google search of the term “Denver
Mix”. Reviewing the first forty-eight (48) results on the
first five (5) pages of results, Applicant notes that only four
(4) of the results are for popcorn products (and Applicant’s
own use of the trademark is the first of these results to

4 October 11, 2018 Application Specimen of Use TSDR at 1.
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appear). … While other examples of the use of Applicant’s
mark by third parties may exist, Applicant does not believe
that such use could rise to the level of being considered
generic without having more prominence and widespread
usage on the world’s most widely used internet search
engine. Although the Examining Attorney stated that
Google search results can vary, and depend on factors such
as location of the IP address, Applicant notes that it
reviewed five (5) pages encompassing forty-eight (48)
results.
6 TTABVUE 10.
These search results are not particularly probative because the determination of
whether a mark is merely descriptive or generic is made in relation to the goods and
not in the abstract. See DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695
F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012). The fact that DENVER MIX
may appear in connection with radio stations and other contexts does not minimize
the public’s understanding of DENVER MIX as a popcorn flavor in the context of the
relevant goods. Nonetheless, there are several examples of third-parties using
DENVER MIX as a popcorn flavor in these results.
The evidence shows DENVER MIX is the name of a key aspect of popcorn,
specifically, the flavor of the popcorn. See Cordua Rests., 118 USPQ2d at 1637
(CHURRASCOS a type of grilled meat generic for restaurant services); A. J. Canfield
Co. v. Honickman, 808 F.2d 291, 1 USPQ2d 1364 (3d Cir. 1986) (CHOCOLATE
FUDGE generic for chocolate fudge flavored diet soda). In addition to the several
examples of generic usage of the entire proposed mark DENVER MIX, the words
taken separately lead to the same conclusion. See Princeton Vanguard LLC v. Frito-
Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827, 1832-33 (Fed. Cir. 2015) (it is
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“useful to consider the public’s understanding of the individual words.”). MIX means
two or more different things combined together.5 In connection with popcorn,
DENVER is used by itself or with the word STYLE to indicate a particular flavor.6
The combination does not result in a different meaning.
We find the relevant consuming public would understand DENVER MIX to name
a key aspect of the goods, thus Applicant’s proposed mark is generic for popcorn.
Royal Crown, 127 USPQ2d at 1045; Cordua Rests., 118 USPQ2d at 1637. We
therefore find that Applicant’s proposed mark is incapable of indicating source.
III. Has the Term DENVER MIX Acquired Distinctiveness?
For completeness we address the alternative refusal based on mere
descriptiveness and lack of acquired distinctiveness.
C. Mere Descriptiveness
By claiming acquired distinctiveness under Section 2(f), Applicant has conceded
that the matter sought to be registered is merely descriptive of the identified goods.
In re Virtual Indep. Paralegals, LLC, 2019 USPQ2d 111512, at *9 (TTAB 2019) (citing
Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d
1626, 1629 (Fed. Cir. 2009)); see also Yamaha Int’l Corp. v. Hoshino Gakki Co., 840
F.2d 1572, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988); In re Am. Furniture Warehouse

5 January 23, 2019 Office Action TSDR at 48-50 (OXFORD LIVING DICTIONARIES
(oxforddictionaries.com)).
6 See, e.g., January 23, 2019 Office Action TSDR at 34 (“Denver” www.uptownpopcorn.com),
37 (“Denver” popcorngirlvegas.com); July 23, 2019 Office Action TSDR at 5 (“Denver Style”
www.gourmetpopcornking.com); October 14, 2019 Office Action at 2 (“Denver”
www.amanapopcorncompany.com), 17 (“Denver” www.papabearpopcorn.com).
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Co., 126 USPQ2d 1400, 1403 (TTAB 2018) (noting that a claim of acquired
distinctiveness by applicant to overcome a refusal in a prior registration for the same
wording in connection with same services “can be viewed as a concession by Applicant
that the wording itself is not inherently distinctive for those services”).
Even though Applicant has conceded DENVER MIX is merely descriptive, we
must address the degree of descriptiveness because that bears on the quantity and
quality of evidence required to prove acquired distinctiveness, which we discuss
below. Royal Crown, 127 USPQ2d 1045. We find the proposed mark highly
descriptive based on the entire record and for the reasons set out in the genericness
discussion above.
D. Acquired Distinctiveness
Because we have found the proposed mark highly descriptive, Applicant’s burden
of establishing acquired distinctiveness under Section 2(f) is “commensurately high.”
Virtual Independent Paralegals, 2019 USPQ2d 111512, at *11 (TTAB 2019) (citing
cases). See also, e.g., Royal Crown, 127 USPQ2d at 1048 (“[H]igher levels of
descriptiveness require a more substantial showing of acquired distinctiveness.”);
Steelbuilding.com, 75 USPQ2d at 1424 (“[A]pplicant’s burden of showing acquired
distinctiveness increases with the level of descriptiveness; a more descriptive term
requires more evidence of secondary meaning.”); In re Bongrain Int’l Corp., 894 F.2d
1316, 13 USPQ2d 1727, 1727 n.4 (Fed. Cir. 1990) (quoting Yamaha Int’l v. Hoshino
Gakki Co., 6 USPQ2d at 1008 (“the greater the degree of descriptiveness the term
has, the heavier the burden to prove it has attained secondary meaning”)); In re Tires,
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Tires, Tires Inc., 94 USPQ2d 1153, 1157 (TTAB 2009) (highly descriptive terms are
less likely to be perceived as trademarks, and therefore more persuasive evidence of
secondary meaning will ordinarily be required to establish their distinctiveness).
To establish that a term has acquired distinctiveness, “an applicant must show
that in the minds of the public, the primary significance of a product feature or term
is to identify the source of the product rather than the product itself.” See In re La.
Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1265 (Fed. Cir. 2015)
(quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1729 (Fed. Cir. 2012)). To meet this burden, an applicant may offer three basic
types of evidence:
1. A claim of ownership of one or more active prior
registrations on the Principal Register of the same mark
for goods or services that are sufficiently similar to those
identified in the pending application. Trademark Rule
2.41(a)(1), 37 C.F.R. § 2.41(a)(1).
2. A verified statement that the mark has become
distinctive of the applicant’s goods or services by reason of
the applicant’s substantially exclusive and continuous use
of the mark in commerce for five years before the date on
which the claim of distinctiveness is made. Trademark
Rule 2.41(a)(2), 37 C.F.R. § 2.41(a)(2).
3. Other appropriate evidence of acquired distinctiveness.
Trademark Rule 2.41(a)(3), 37 C.F.R. § 2.41(a)(3).
The applicant may submit one or any combination of these types of evidence.
Depending on the nature of the mark and the facts in the record, the examining
attorney may determine that a claim of ownership of a prior registration(s) or a claim
of five years’ substantially exclusive and continuous use in commerce is insufficient
Serial No. 88151165
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to establish a prima facie case of acquired distinctiveness. In which case, the
applicant may then submit additional other evidence of acquired distinctiveness.
Our ultimate Section 2(f) analysis of acquired distinctiveness and determination
in this case is based on all of the evidence considered as a whole. Considerations that
may be assessed in determining whether a mark has acquired secondary meaning
can be described by the following six factors: (1) association of the [mark] with a
particular source by actual purchasers (typically measured by customer surveys); (2)
length, degree, and exclusivity of use; (3) amount and manner of advertising; (4)
amount of sales and number of customers; (5) intentional copying; and (6) unsolicited
media coverage of the product embodying the mark. In re Snowizard, Inc., 129
USPQ2d 1001, 1005 (TTAB 2018) (quoting Converse, Inc. v. Int’l Trade Comm’n, 907
F.3d 1361, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018)). “All six factors are to be weighed
together in determining the existence of secondary meaning.” Converse, 128 USPQ2d
at 1546 .
Applicant relies on the following in support of its Section 2(f) claim:
 Applicant has used DENVER MIX in connection with popcorn for over six
years;7
 Applicant spends over $6500 annually on marketing related to the DENVER
MIX products;8

7 Stever Heisner, Applicant’s Vice President of Administration, Supplemental Declaration
September 30, 2019 Request for Reconsideration TSDR at 5-6; Heisner Supplemental
Declaration, April 2, 2020 Response TSDR at 7-8.
8 Heisner Supplemental Declaration, September 3, 2020 Request for Reconsideration TSDR
at 17-18.
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 From 2014 to 2019 annual sales of Applicant’s DENVER MIX popcorn have
increased from $110,000 to $220,000 demonstrating that more customers have
purchased these goods allegedly showing increasing public recognition;9 and
 Declarations from seven customers and one franchisee attesting that Applicant
“is the owner of the mark sought to be registered” no others have “the right to
use said mark in commerce” and they recognize DENVER MIX “is owned by
the Applicant.”10
Applicant did not offer details about the market context of its advertising and
sales figures. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1480
(TTAB 2016) (probative value of sales revenue figures quantified as doses sold is
diminished by the fact that the amount is just a raw number without context as to
applicant’s market share or whether this amount is significant in the industry). There
is no information as to the market share these sales figures represent or the extent
and depth of consumer exposure other than the raw sales and advertising data.
Further, given the highly descriptive nature of the proposed mark, six years is not
particularly long. Applicant’s assertion that “substantially exclusive” does not mean
no other use by third parties is correct in that inconsequential or infringing use may
not preclude a showing of “substantially exclusive” use. See L.D. Kichler Co. v. Daviol
Inc., 192 F.3d 1349, 52 USPQ2d 1307, 1309 (Fed. Cir. 1999). This record, however,
does not reveal “inconsequential” or “infringing” third-party use. In fact, it contains

9 Id.
10 Customer and Franchisee Declarations, October 22, 2020 Request for Reconsideration
TSDR 6-21.
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sufficient examples of third parties using DENVER MIX as a flavor name to support
a finding of genericness.
The form declarations from six customers and one franchisee, represent an
infinitesimally small portion of potential consumers of popcorn. See In re Benetton
Grp., S.p.A., 48 USPQ2d 1214, 1217 (TTAB 1998) (“given the nature of applicant’s
services, the statements of twenty three individuals do not establish an association
of the [mark] with a single source by other than an extremely small number of the
purchasing public.”). All seven are identical in substance, having been written on
preprinted forms with space saved for the declarant to add his or her location of
residence, signature, printed name and date. Form declarations such as these may
not “actually reflect the views of the declarants” and are entitled to “little weight.” In
re EBSCO Indus. Inc., 41 USPQ2d 1913, 1917 (TTAB 1996); see also In re Pohl-
Boskamp GmbH & Co., 106 USPQ2d 1042, 1051 (TTAB 2013) (“probative weight ...
[of declarations] is affected somewhat by the fact that they are all essentially identical
in form and were clearly not composed individually. ... [S]uch statements are less
persuasive than statements expressed in the declarants’ own words.”). Moreover, the
franchisee is not an objective observer. See In re Pennzoil Prods. Co., 20 USPQ2d
1753, 1758 (TTAB 1991) (form declarations from nine marketers of oil products who
have business relationships with the applicant “lack persuasiveness on the issue of
the primary significance of the [proposed mark] to the purchasing public.”). The
probative value of these declarations is extremely limited. See generally In re Pacer
Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1633 (Fed. Cir. 2003) (Where multiple
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affidavits are “nearly identical,” “conclusorily worded,” “represent the views of a small
segment of the relevant market,” “they are not the kind of ‘competent evidence’ that
could carry Pacer’s burden of rebutting the PTO’s prima facie case.”).
Given the highly descriptive nature of Applicant’s proposed mark, this record does
not support a finding of acquired distinctiveness. In re Guaranteed Rate, Inc., 2020
USPQ2d 10869, at *10 (TTAB 2020) (“The record in this case reflects that,
notwithstanding Applicant’s substantial efforts, the public, including Applicant’s
competitors, still primarily use and understand the term ‘guaranteed rate’ to describe
a feature of mortgage lending services.”)
Decision: We affirm the refusal to register Applicant’s proposed mark on the
ground that it is a generic designation of the identified goods, and in the alternative,
we affirm the refusal to register on the ground that the mark is merely descriptive
and without acquired distinctiveness.