Franklin County Historical Society

Trademark Trial and Appeal Board

Sep 5, 2012

No. 77699113 (T.T.A.B. Sep. 5, 2012)

Mailed:
September 5, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Franklin County Historical Society
________

Serial No. 77699113
_______

Richard S. Donnell of Vorys Sater and Pease LLP, for
Franklin County Historical Society.

Jason Paul Blair, Trademark Examining Attorney, Law Office
104 (Chris Doninger, Managing Attorney).
_______

Before Grendel, Ritchie, and Lykos, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Franklin County Historical Society, applicant herein
(“applicant”), seeks registration on the Principal Register
of the mark “CENTER OF SCIENCE AND INDUSTRY,” in standard
character format, for “education and entertainment
services, namely, operating a museum and conducting
workshops, programs and demonstrations in the field of
THIS OPINION IS A
PRECEDENT OF THE TTAB
Ser. No. 77699113
2
science,” in International Class 41.1 The trademark
examining attorney refused registration of the mark on the
Principal Register on the ground that applicant’s mark is
merely descriptive of the identified services under
Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1) and
that it has not acquired distinctiveness pursuant to
Section 2(f). Applicant argued against the Section 2(e)(1)
refusal, and sought registration with a claim of acquired
distinctiveness under Section 2(f) in the alternative.
When the refusal to register was made final, applicant
filed a timely appeal. Both applicant and the examining
attorney filed briefs and applicant filed a reply brief.
After careful consideration of all of the arguments and
evidence of record, we affirm the refusal to register.
Mere Descriptiveness
“A term is merely descriptive if it immediately
conveys knowledge of a quality, feature,
function, or characteristic of the goods or
services with which it is used.” In re Bayer
Aktiengesellschaft, 488 F.3d 960, 963 [82 USPQ2d
1828] (Fed. Cir. 2007) (citing In re Gyulay, 820
F.2d 1216, 1217 [3 USPQ2d 1009] (Fed. Cir.
1987)). Whether a mark is descriptive cannot be
determined in the abstract. Id. at 963-64.
Descriptiveness must be evaluated “in relation to
the particular goods for which registration is
sought, the context in which it is being used,
and the possible significance that the term would

1 Serial No. 77699113, filed on March 25, 2009, amended as filed
under Trademark Act Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a), alleging dates of first use and first use in commerce
on December 31, 1976.
Ser. No. 77699113
3
have to the average purchaser of the goods
because of the manner of its use or intended
use.” Id.

In re Chamber of Commerce of the U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012)
That a term may have other meanings in different
contexts is not controlling. In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979). Moreover, it is settled that
“[t]he question is not whether someone presented with only
the mark could guess what the goods or services are.
Rather, the question is whether someone who knows what the
goods or services are will understand the mark to convey
information about them.” DuoProSS Meditech Corp. v. Inviro
Medical Devices, Ltd., ___ F.3d ___, 103 USPQ2d 1753, 1757
(Fed. Cir. 2012) (citation omitted); In re Tower Tech Inc.,
64 USPQ2d 1314, 1316-17 (TTAB 2002). If, on the other
hand, a mark requires imagination, thought, and perception
to arrive at the qualities or characteristics of the goods
or services, then the mark is suggestive. In re MBNA
America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780
(Fed. Cir. 2003).
The examining attorney submitted dictionary
definitions of the separate words “center,” “science” and
“industry,” which we set forth in relevant part below:
Ser. No. 77699113
4
“Center”: a store or establishment devoted to a
particular subject or hobby, carrying supplies,
materials, tools, and books as well as offering
guidance and advice; a gardening center.
www.dictionary.com (2009).

“Science”: the observation, identification,
description, experimental investigation, and
theoretical explanation of phenomena.
http://dictionary.reference.com (2009).

“Industry”: trade or manufacture in general.
www.dictionary.com (2009).

We consider these dictionary definitions to be probative of
the relevant public’s understanding of the term “CENTER OF
SCIENCE AND INDUSTRY” as applied to applicant’s recited
services, “education and entertainment services, namely,
operating a museum and conducting workshops, programs and
demonstrations in the field of science.” See, e.g., In re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007) (“Evidence that a term is merely
descriptive to the relevant purchasing public ‘may be
obtained from any competent source, such as dictionaries,
newspapers, or surveys.’” (citation omitted)); see also In
re Digital Research Inc., 4 USPQ2d 1242, 1243 (TTAB 1987)
(CONCURRENT PC-DOS and CONCURRENT DOS merely descriptive of
“computer programs recorded on disk”). Applicant argues
that although the words are individually defined, there is
no dictionary definition for them as a phrase. However, it
would not take any complicated reasoning or cogitation for
Ser. No. 77699113
5
consumers considering the proposed mark in conjunction with
the recital of services to conclude that the proposed mark
conveys information about a center where one can learn
about science and industry. Accordingly, “someone who
knows what the goods or services are will understand the
mark to convey information about them.” DuoProSS Meditech
Corp., ___ F.3d ___, 103 USPQ2d at 1757; see also In re
Tower Tech Inc., 64 USPQ2d at 1316-17. Indeed, in this
case, even in the abstract the mark would likely convey
such information.
The examining attorney further submitted evidence of
third parties that use variations on the term “CENTER OF
SCIENCE AND INDUSTRY” for museum services.2 Some of the
references use the exact term itself, while others use
various combinations of the terms “center,” “science,” and
“industry.” The examining attorney submitted, for example,
a list of museums from around the country, the names of
which include terms similar to or the same as those in
applicant’s proposed mark, as found on the website
www.tryscience.com. These include, among others, Castle

2 We find less probative the references to the term “CENTER OF
SCIENCE AND INDUSTRY” for services other than applicant’s
services, since they do not show public perception of the term as
used by applicant. Examples include references to Houston, Texas
as “an important center of science and industry,”
www.worlwidelearn.com, and to the university Friedrich-Schiller-
Ser. No. 77699113
6
Science and Technology Center, Atwater (California);
Discovery Center Science Museum, Fort Collins; MOSI (Museum
of Science & Industry), Tampa; SciTrek, The Science and
Technology Museum of Georgia, Atlanta; SciTech Hands-On
Museum Science and Technology Interactive Center, Aurora;
Children’s Science & Technology Museum of Terre Haute,
Terre Haute; SEE Science Center, Manchester; Liberty
Science Center, Jersey City; Milton J. Rubenstein Museum of
Science & Technology (AKA: The Discovery Center), Syracuse;
Roberson Museum and Science Center, Binghamton; Rochester
Museum & Science Center, Rochester; COSI Columbus,
Columbus; COSI Toledo, Toledo; The Works: Ohio Center for
History, Art and Technology, Newark; Oregon Museum of
Science and Industry, Portland; The Discovery Center of
Science & Technology, Bethlehem; The Cook Arts, Science and
Technology Center, Corsicana (Texas).
The examining attorney further submitted other uses of
the terms “center,” “science” and “industry” as used in
connection with museum services:
The Center of Science and Industry (COSI) in
Toledo and Columbus, Ohio.
www.associatedcontent.com. Attached to June 24,
2009 Office Action, p20.

Universitat as “a renowned center of science and industry.”
www.chsbs.cmich.edu.
Ser. No. 77699113
7
Geography of Des Moines: The Des Moines Center of
Science and Industry features a planetarium, a
Foucault pendulum, and numerous permanent
exhibits. http://geography.howstuffworks.com.
Attached to August 7, 2010 Office Action, p15.

Oregon Museum of Science and Industry: Type of
Organization: Science Center/Zoo: Founded in 1944
and one of the nation’s top ten science museums,
the Oregon Museum of Science and Industry is a
world-class tourist attraction and educational
resource that puts the “WOW! in science for the
kid in each of us.” www.cilc.org. Attached to
June 10, 2010 Office Action, p43.

Museum of science and industry Chicago: Welcome
to the Museum of Science and Industry: We invite
you to visit our landmark building and interact
with exhibits, tours and demos; Science Storms;
Feel the physics and consider the chemistry of
natural phenomena like tornados and avalanches.
www.msichicago.org. Attached to June 10, 2010
Office Action, p45.

Youngstown Historical Center of Industry & Labor:
The Youngstown Historical Center of Industry &
Labor provides a dramatic overview of the impact
of the iron and steel industry on Youngstown and
other Mahoning Valley communities. The museum’s
permanent exhibit, By the Sweat of Their Brow:
Forging the Steel Valley, explores labor,
immigration and urban history, using videos,
artifacts, photographs, and reconstructed scenes.
www.ohiohistory.org. Attached to June 10, 2010
Office Action, p35.

Made in Muscatine: The Muscatine History and
Industry Center examines products made locally
from buttons to file cabinets and retread for
tires to animal feed. The companies producing
these goods have more in common than the location
of Muscatine. www.muscatinehistory.org.
Attached to June 10, 2010 Office Action, p41.

Applicant argues that few of these third parties use
the exact term “center of science and industry.” Applicant
Ser. No. 77699113
8
further argues that among those that do, the Toledo CENTER
OF SCIENCE AND INDUSTRY does so under license from
applicant. (appl’s brief at 10). However, applicant has
provided no evidence, either by declaration or otherwise,
to that effect. Applicant also argues that the referenced
use by the Des Moines CENTER OF SCIENCE AND INDUSTRY
reproduced below is outdated, and that the Des Moines
facility has changed its name.
Science Center of Iowa: The pioneering Des Moines
Center of Science and Industry opened its doors
in October 1970 in Greenwood-Ashworth Park. . .
Over the years, the center gained prominence as
its audience expanded and the name was changed to
the Science Center of Iowa (SCI) in 1986 to
better reflect its statewide reach. [URL
unstated] Attached to May 2, 2011 Response to
Office Action, p38.

We find, nevertheless, that the dictionary evidence
shows applicant’s proposed mark to be a descriptive one.
The use by third parties on their websites further shows
that there is a competitive need for the terms “center,”
“science,” and “industry” in connection with applicant’s
applied-for services. The primary purposes for refusing
registration of a merely descriptive mark are “(1) to
prevent the owner of a mark from inhibiting competition in
the sale of particular goods; and (2) to maintain freedom
of the public to use the language involved, thus avoiding
the possibility of harassing infringement suits by the
Ser. No. 77699113
9
registrant against others who use the mark when advertising
or describing their own products.” In re Abcor, 588 F.2d
811, 200 USPQ at 217; see also In re Stereotaxis Inc. 429
F.3d 1039, 77 USPQ2d 1087, 1090 (Fed. Cir. 2005).
Although applicant’s listed services are somewhat
broader than museum services (and the related educational
mission museums perform), it is clear that “a mark need not
be merely descriptive of all recited goods or services in
an application. A descriptiveness refusal is proper ‘if
the mark is descriptive of any of the [services] for which
registration is sought.’" In re Chamber of Commerce, 102
USPQ2d at 1219 (citation omitted); see also In re Amer.
Soc’y of Clinical Pathologists, Inc., 442 F.2d 1404, 169
USPQ 800, 801 (CCPA 1971) (mark is descriptive if the
listed services are supportive of, or ancillary or
auxiliary to, the services described by the mark).
In sum, although any doubt on a Section 2(e)(1)
refusal must be resolved in favor of the applicant, it is
clear that a consumer would understand “CENTER OF SCIENCE
AND INDUSTRY,” used in connection with applicant's
services, as conveying information about them, namely, a
place where services that concern science and industry are
provided. See id.; In re Tower Tech Inc., 64 USPQ2d at
Ser. No. 77699113
10
1316-17. Therefore we find that the mark is merely
descriptive of the recited services.
Acquired Distinctiveness
It is applicant’s burden to prove acquired
distinctiveness of a descriptive mark. Yamaha Int’l Corp.
v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001,
1006 (Fed. Cir. 1988) (applicant established acquired
distinctiveness in design); In re Hollywood Brands, Inc.,
214 F.2d 139, 102 USPQ 294, 295 (CCPA 1954) (“[T]here is no
doubt that Congress intended that the burden of proof
[under Section 2(f)] should rest upon the applicant”). The
higher the level of descriptiveness, the greater the
proportionate showing of acquired distinctiveness need be.
E.g., In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d
1420, 1424 (Fed. Cir. 2007).
It is the examining attorney’s position that “CENTER
OF SCIENCE AND INDUSTRY” is highly descriptive. For the
reasons discussed in the prior section, we agree. The
evidence indicates that a center of science and industry
would be understood by the relevant public to convey
information directly and easily about applicant’s applied-
for services.
Accordingly, we look to the record to see if there is
sufficient evidence that “CENTER OF SCIENCE AND INDUSTRY”
Ser. No. 77699113
11
has acquired distinctiveness so that consumers associate it
not primarily with the services for which applicant seeks
registration, but rather with a single source for those
services. E.g., In re Steelbuilding.com, 415 F.3d 1293, 75
USPQ2d at 1422. The evidence necessary to establish
acquired distinctiveness depends on the facts of the case,
but may include such factors as the length of use of the
mark, advertising expenditures, sales, survey evidence, and
affidavits asserting source-indicating recognition. See,
e.g., id. at 1424.
In support of its claim of Section 2(f) acquired
distinctiveness, applicant submitted a declaration from its
senior director of marketing and communications, dated May
2, 2011. The declaration contains no exhibits. It states
solely as follows:
The mark has become distinctive of the services
through Applicant’s substantially exclusive and
continuous use in commerce for at least the 35 years
immediately before the date of this statement.

In addition to the declaration, which was submitted
with applicant’s May 2, 2011 response to an office action,
applicant attached what appear to be web pages although
almost none contain URLs or dates showing when they were
printed. One reprint of a web page, which appears to be
applicant’s web page, is shown below, as are reported
Ser. No. 77699113
12
excerpts from other pages. We understand from the wording
of the response to the office action, and from applicant’s
brief, that the web page evidence also was submitted for
the purpose of showing acquired distinctiveness, i.e., as
evidence that applicant’s proposed mark, “CENTER OF SCIENCE
AND INDUSTRY,” has become associated with applicant over
the years and not merely with the services for which
applicant seeks registration.
Ser. No. 77699113
13

[URL unstated] Attached to May 2, 2011 Response
to Office Action, p3.
Ser. No. 77699113
14

WOSU and COSI – Community Collaboration: WOSU,
the public broadcasting station licensed to The
Ohio State University, has formed a partnership
with COSI Columbus (the CENTER OF SCIENCE AND
INDUSTRY) to share space in their 320,000 square
foot downtown facility. WOSU@COSI houses a new,
state-of-the-art digital media center, and has
been designed as community space. [URL unstated]
Attached to May 2, 2011 Response to Office
Action, p4.

COSI CENTER OF SCIENCE AND INDUSTRY: The World’s
Most Famous Ship to Re-Dock in Columbus: The most
visited exhibition in COSI history sets sail
again for a magnificent second voyage featuring
almost 100 new artifacts, more than 20 making
their world debut at COSI. [URL unstated]
Attached to May 2, 2011 Response to Office
Action, p6.

COSI CENTER OF SCIENCE AND INDUSTRY: 2010
Teacher’s Choice Award: What are my options for
Methods of Connecting to COSI? COSI can accept
ISDN calls. What Videoconferencing Programs Does
COSI Offer? [URL unstated]
Attached to May 2, 2011 Response to Office
Action, p11.

Parents: Past Picks: The 10 Best Children’s
Museum: COSI (Center of Science and Industry),
Columbus, OH, www.cosi.org. Children can
assemble pieces of a human heart and construct a
circulation model. Tips are given along the way.
[URL unstated] Attached to May 2, 2011 Response
to Office Action, p12.

Organization Awards: 2008 Parents Magazine Ranks
COSI the #1 Science Center in the Country; 2007
COSI received a Clean Air award from NAFA; 2006
COSI received the Clean Air award; 2006 COSI
received the Army Community Award; 2006 COSI
received the “Good Vision is Good Business”
Award; 2005 COSI voted the #1 Daytrip
destination; 2002 COSI ranked #1 Science Museum
in the nation; 2000 COSI received the “THEA”
award of Outstanding Achievement; 2010 COSI’s
Ser. No. 77699113
15
Electronic Education programs win a 2010
Teacher’s Choice Award from the Berrien County
(Michigan) Regional Education Service Agency;
2009 COSI’s Electronic Education programs win a
2009 Teacher’s Choice Award from the Berrien
County (Michigan) Regional Education Service
Agency; 2009 COSI’s Electronic Education programs
receives the United States Distance Learning
Association Platinum Award for Excellence in
Distance Learning; ... [URL unstated] Attached
to May 2, 2011 Response to Office Action, p13.

CENTER OF SCIENCE AND INDUSTRY (COSI)
Owner description: Known as ‘COSI,’ this
enormously popular attraction offers all sorts of
hands-on exhibits, from conducting your own water
experiments to creating a . . .
tripadvisor.in. Attached to May 2, 2011 Response
to Office Action, p17.

SKY DELTA: COSI: CENTER OF SCIENCE AND INDUSTRY:
The Columbus Center of Science and Industry
opened in the spring of 1964 and remains a
favorite destination for travelers and residents
alike. [URL unstated] Attached to May 2, 2011
Response to Office Action, p19.

associatedcontent from Yahoo – Things to Do This
Spring in Columbus, Ohio: COSI- Center of Science
and Industry: COSI is an exciting discovery place
for children to interact and learn about our
environment, heritage, people, animals, science,
history, health and industry. COSI provides
informative exhibits, experiences and educational
activities for all ages. [URL unstated]
Attached to May 2, 2011 Response to Office
Action, p20.

Special ExhiBITS: Just another wordpress.com
weblog: Titanic - Center of Science and Industry
(COSI), Columbus, Ohio: posted by
museumexhibitmgr:
Welcome to the first content blog for Special
ExhiBITs [sic]. After having so many views of
just the introduction since yesterday’s launch, I
am excited to get started on the first review of
an exhibit. I celebrated my 28th birthday last
Ser. No. 77699113
16
week and took a minor tour around the Midwest
visiting 5 museums in 3 days (not including my
home museum Cincinnati Museum Center at Union
Terminal, or my home “emeritus” museum the
Indiana State Museum of Science and Culture). My
first stop was the Center of Science and
Industry, better known as COSI, in Columbus,
Ohio. It was my second trip to COSI, the first
being a visit to Lost Egypt: Ancient Secrets,
Modern Science (That will be a later blog). I
was fortunate enough to attend their Titanic
Steerage Party and exhibit preview on Thursday,
March 25. [URL unstated] Attached to May 2,
2011 Response to Office Action, p.21.

IgoUgo Things to Do in Columbus: COSI (Center
of Science and Industry) Reviews:
COSI is the Center of Science and Industry in
Columbus, and is a terrific place for kids. [URL
unstated] Attached to May 2, 2011 Response to
Office Action, p22.

C.O.S.I. Columbus:
The ultimate guide to the COSI science center.
Explore science, discover fun!: The Bottom Line:
COSI makes a great stop for anyone interested in
science and interactive yet fun learning. The
kids will love it. epinions.com.
Attached to May 2, 2011 Response to Office
Action, p23.

Things to Do: COSI: Center of Science & Industry:
COSI provides an exciting and informative
atmosphere for those of all ages to discover more
about our environment, our accomplishments, our
heritage, and ourselves. nbc4i.com.
Attached to May 2, 2011 Response to Office
Action, p26.

Chicago Parent: Kids won’t want to leave the
Center of Science and Industry: From the moment
you walk through its doors, the Center of Science
and Industry in Columbus, Ohio captures your
kids’ attention and doesn’t let go. . . .

Through Sept. 7, COSI will feature its newest
exhibit, “Lost Egypt: Ancient Science,” where
Ser. No. 77699113
17
kids can see real human and animal mummies and
families can visit a re-created tomb. . .

COSI is not far from downtown, where you’ll find
plenty of great restaurants and nice hotels to
make this a weekend trip your kids won’t soon
forget-especially if your rats win at basketball.
COSI 333 Broad St., Columbus OH.
[URL unstated]
Attached to May 2, 2011 Response to office
Action, p27.

Battelle The Business of Innovation: The Center
for Science and Industry (COSI): At Battelle, we
believe that informal science centers are
valuable assets to our citizens and to the
achievement of STEM literacy-and COSI is one of
the best! [URL unstated]
Attached to May 2, 2011 Response to Office
Action, p28.

The White House Office of the Press Secretary:
President Obama announced his intent to appoint
the following individuals to administration
posts: . . . Kathryn D. Sullivan, PhD, Nominee
for Assistant Secretary of Commerce: Kathy
Sullivan is the inaugural director of the
Battelle Center for Mathematics and Science
Education Policy in the John Glenn School of
Public Affairs at Ohio State University. Prior
to joining Ohio State, Dr. Sullivan served a
decade as President and CEO of the Center of
Science and Industry (COSI) in Columbus, Ohio,
one of the nation’s leading science museums. Dr.
Sullivan joined COSI after three years’ service
as Chief Scientist at NOAA, where she oversaw
research and technology programs agency-wide.
www.whitehouse.gov. Attached to May 2, 2011
Response to Office Action, p29.

Touring Ohio: Center of Science & Industry
(COSI): COSI has been considered one of the most
respected science centers in the nation – serving
18 million visitors a year 1964 [sic]. . . . COSI
features more than 300 interactive exhibitions
throughout. . . . COSI provides an exciting and
informative atmosphere for all ages to discover
Ser. No. 77699113
18
more . . . [URL unstated] Attached to May 2,
2011 Response to Office Action, p30.

In reliance on this evidence, applicant argues in
its brief that in addition to over thirty-five years
of “substantially exclusive” use, applicant’s CENTER
OF SCIENCE AND INDUSTRY has garnered attention by
receiving, over the years, 20 million visitors from
all 50 states; that it features regular and special
exhibits with “rare artifacts,” and that it has been
awarded national awards and recognition, including the
Parents Magazine award of “#1 Science Center” in the
country. (appl’s brief at 7-8).3
The examining attorney argues that the evidence
submitted by applicant actually shows that applicant
is not known by the proposed mark “CENTER OF SCIENCE
AND INDUSTRY,” but rather by the shortened acronym
COSI, and that if any term has gained a degree of
renown, it is the acronym. As the examining attorney
points out, in none of the examples shown does the

3 Apart from the declaration supporting the claim of use for 35
years, none of these assertions of fact were attributed by
applicant to any particular source, although it appears that they
are based on the Internet evidence that accompanied the
declaration. The examining attorney did not object to the
assertions and treated the referred to evidence as being properly
of record. Accordingly, any objection is waived, and we treat
the statements in the Internet evidence submitted by applicant,
as did the examining attorney, as though they are true.
Ser. No. 77699113
19
mark for which applicant seeks registration, “CENTER
OF SCIENCE AND INDUSTRY,” appear without the acronym
COSI. Indeed, on applicant’s own website, as shown on
the web page image, supra, the full term “CENTER OF
SCIENCE AND INDUSTRY” appears only once, in small
print in the top left-hand corner, under the larger
letters COSI. Other webpages submitted by applicant
also show references to its museum services using only
the term COSI. Third parties, as well, refer most
commonly to applicant’s museum services as COSI rather
than by the full term “CENTER OF SCIENCE AND
INDUSTRY,” or at best they refer to both with one or
the other in parentheses. One blog submitted by
applicant specifically notes that applicant’s museum
services are “better known as COSI.” See blog post
[URL unstated] attached to May 2, 2011 Response to
Office Action, p21. We therefore find that this
evidence is insufficiently probative on whether
“CENTER FOR SCIENCE AND INDUSTRY” has acquired
distinctiveness in these circumstances. See In re
Mogen David Wine Corp., 372 F.2d 539, 152 USPQ 593,
595-96 (CCPA 1967) (where advertising depicting the
bottle design sought to be registered always featured
Ser. No. 77699113
20
the word mark MOGEN DAVID, such evidence failed to
prove secondary meaning in the design itself).
Further, in these circumstances, there is no
indication that any goodwill associated with COSI has
somehow been transferred to, or is shared with “CENTER
OF SCIENCE AND INDUSTRY.” Generally, marks with
different commercial impressions do not share
goodwill. See In re Parkway Machine Corp., 52 USPQ2d
1628 (TTAB 1999) (“The existence of applicant’s other
registrations covering different marks is largely
irrelevant to the question of acquired distinctiveness
of the instant mark.”); see also In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1812
(Fed. Cir. 2001) (“A mark is the legal equivalent of
another if it creates the same, continuing commercial
impression such that the consumer would consider them
both the same mark.”).4 As such, any renown garnered
by the term COSI for applicant’s museum services is
inapposite to this decision.
We also find it telling that in applicant’s own
submission in support of its claim of acquired

4 As an acronym, we find COSI too different in commercial
impression to be useful to applicant in establishing
acquired distinctiveness of “CENTER OF SCIENCE AND
INDUSTRY.”

Ser. No. 77699113
21
distinctiveness there are several misstated references
to its full mark (alongside COSI), referring not to
“CENTER OF SCIENCE AND INDUSTRY,” but rather to
“Center of Science & Industry” (See nbc4i.com, May 2,
2011 Response to Office Action, p26; and [URL
unstated] May 2, 2011 Response to Office Action, p30)
or “The Center for Science and Industry” ([URL
unstated] May 2, 2011 Response to Office Action, p28).
Rather, it is apparent to us that although
applicant’s museum services may attract many visitors
and indeed it may have national recognition with
multiple awards, it has not established acquired
distinctiveness specific to the term “CENTER OF
SCIENCE AND INDUSTRY.” In making this finding, we
keep in mind that as discussed in the prior section,
the term is highly descriptive for the services for
which applicant seeks registration and that the record
shows that applicant’s use has not been substantially
exclusive. Nextel Communications Inc. v. Motorola
Inc., 91 USPQ2d 1393, 1408 (TTAB 2009); Quaker State
Oil Refining Corp. v. Quaker Oil Corp., 453 F.2d 1296,
172 USPQ 361, 363 (CCPA 1972).
Decision: The refusal to register the mark based
on Trademark Act Section 2(e)(1), because the mark is
Ser. No. 77699113
22
descriptive and without acquired distinctiveness under
Section 2(f), is affirmed.