Friends in the West

Trademark Trial and Appeal Board

Jul 21, 1997

EX (T.T.A.B. Jul. 21, 1997)

THIS DISPOSITION IS NOT CITABLE AS
PRECEDENT OF THE TTAB JULY 21, 97
Paper No. 9
GDH/TAF
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Friends in the West
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Serial No. 74/584,732
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Clark A. Puntigam of Jensen & Puntigam, P.S. for Friends in the
West.
Darren B. Cohen, Trademark Examining Attorney, Law Office 101
(Christopher Wells, Managing Attorney).
_______
Before Hanak, Hohein, and Hairston, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Friends in the West has filed an application to
register the designation "AFRICAN CHILDREN'S CHOIR" for
"charitable fund raising services, featuring a choir".1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis

1 Ser. No. 74/584,732, filed on October 12, 1994, which alleges dates
of first use of January 1985.
Ser. No. 74/584,732
2
that, when used in connection with applicant's services, the
phrase "AFRICAN CHILDREN'S CHOIR" is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
It is well settled that a designation or term is
considered to be merely descriptive of goods or services, within
the meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality, characteristic of
feature thereof or if it directly conveys information regarding
the nature, function, purpose or use of the goods or services.
See In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215,
217-18 (CCPA 1978). It is not necessary that a designation or
term describe all of the properties or functions of the goods or
services in order for it to be considered to be merely
descriptive thereof; rather, it is sufficient if the designation
or term describes a significant attribute or idea about them.
Moreover, whether a designation or term is merely descriptive is
determined not in the abstract but in relation to the goods or
services for which registration is sought, the context in which
it is being used on or in connection with those goods or services
and the possible significance that the designation or term would
have to the average purchaser of the goods or services because of
the manner of its use. See In re Bright-Crest, Ltd., 204 USPQ
591, 593(TTAB 1979). Consequently, "[w]hether consumers could
guess what the product [or service] is from consideration of the
Ser. No. 74/584,732
3
mark alone is not the test." In re American Greetings Corp., 226
USPQ 365, 366 (TTAB 1985).
Applicant, referring to the brochures which it
submitted as specimens, points out that, as indicated therein,
the funds which it raises "are not primarily used to support a
children's choir from Africa". Instead, applicant notes, "[t]he
funds are used to provide food, shelter and education for needy
children in Africa," irrespective of whether the children "sing
in choirs or even sing at all." Thus, according to applicant,
"[t]he children who sing in the choir are only a small portion of
the large number of children receiving the benefits of the funds"
which applicant raises and, hence, the designation "AFRICAN
CHILDREN'S CHOIR" is not merely descriptive of a characteristic
or feature of its services.
Applicant, although conceding that "a choir is in fact
used to assist in the rendering of the services," further argues
that:
There is no common or typical association in
the mind of the consumer between a choir and
fund raising services. While the
identification of services does use the
phrase "featuring a choir," the inclusion of
that phrase should not be the basis of a
[mere] descriptiveness refusal, since, as
indicated above, that aspect (the use of a
choir) of the services is ancillary and
tangential to the basic thrust of the
services, i.e. fund raising services for
humanitarian purposes. The participation of
a choir in the rendering of such services is
not a conventional aspect of such services,
nor is it a common characteristic of such
services. .... In this case, when the
average customer thinks of fund raising
Ser. No. 74/584,732
4
services and normal characteristics or
features thereof, the participation of a
choir does not ordinarily come to mind.
In addition, applicant urges that since its mark as a whole must
Ser. No. 74/584,732
5
be merely descriptive of the services identified in its
application, "the mark 'African Children's Choir' does not convey
an immediate idea of the stated services because, even though
such services are set forth as "charitable fund raising services,
featuring a choir," the designation "AFRICAN CHILDREN'S CHOIR"
"suggests absolutely nothing about fund raising services".
Applicant consequently maintains that in the absence of "a
descriptive connection between African Children's Choir as a
whole and fund raising services," such designation is not merely
descriptive of its services.
We agree with the Examining Attorney, however, that the
designation "AFRICAN CHILDREN'S CHOIR" immediately describes,
without conjecture or speculation, a significant aspect or
feature of applicant's fund raising services, namely, the African
children's choir which, as the Examining Attorney accurately
observes, "serves as the focal point of the fund raising
activities" provided by applicant. As the Examining Attorney
correctly points out, it is not necessary that a designation or
term describe every characteristic, feature, purpose, function
ingredient, quality or other aspect of the services in order for
it to be merely descriptive. It is sufficient, instead, if the
designation or term simply describes one significant attribute of
the services. See, e.g., In re Aid Laboratories, Inc., 223 USPQ
357, 358-59 (TTAB 1984); In re H.U.D.D.L.E, 216 USPQ 358, 359
(TTAB 1982); and In re MBAssociates, 180 USPQ 338, 339 (TTAB
1973).
Ser. No. 74/584,732
6
Here, that a choir of children from Africa serves as a
significant element of applicant's services, rather than simply a
ancillary and tangential aspect thereof, is evidenced not only by
the fact that the services are specifically identified as
"charitable fund raising services, featuring a choir," but by the
fact that the specimens of record prominently and repeatedly
feature references to applicant's African children's choir as the
focal point of applicant's fund raising activities. Admittedly,
as pointed out by applicant, its brochures state that applicant
"cares for more than 700 needy, homeless African children in
family-like homes" by providing "food, shelter and education to
children with no other chance of survival" and that it also
provides "literacy schools for many other children who don't live
in our homes." However, applicant's brochures also indicate that
a significant feature of its charitable fund raising services
revolves around and is centered upon the performances presented
by its African children's choir.
In this regard, we observe that, in addition to listing
a telephone number which a person may call "[f]or more
information, or to find out about having the African Children's
Choir perform for your church or organization," the brochures
state that applicant is "the choir's parent organization"; that
"[t]he purpose of the African Children's Choir is to help create
new leadership for tomorrow's Africa"; that "[c]hoir members have
the additional benefit of international travel with the choir
which exposes them to a wide variety of people, places and
perspectives"; that contributors can "[v]olunteer to help with
Ser. No. 74/584,732
7
the African Children's Choir"; that donors can "[c]ommit a
monthly amount as a 'Friend of the Children' choir sponsor"2 to
"provide the choir children with clothing, food and educational
materials, as well as help with the choir's travel and medical
expenses"; and that audiences "can see joy in every performance
of the African Children's Choir!"
Clearly, as shown by the specimen brochures, the
African children's choir which applicant sponsors constitutes a
significant, if not the significant, feature of its fund raising
services since the choir functions as an integral part of such
services, acting both as a draw for and a recipient of the
charitable contributions raised by applicant. The asserted fact
that applicant's services are unconventional, in the sense that
the participation of a choir is used in the rendering of its
services, is not only unsupported by any evidence that
appearances by a choir are unusual in connection with fund
raising activities, but even if such is the case, such a fact is
not dispositive where, as here, the designation "AFRICAN
CHILDREN'S CHOIR" unequivocally projects a merely descriptive
connotation. See In re MBAssociates, supra. As the Examining
Attorney persuasively points out: "[T]he featured characteristic
of the services, and, indeed, the unique quality of these
charitable services, is that a choir, specifically, a children's
choir from Africa, serves as the focus of the fund raising."

2 Besides inviting donors to "become a CHILD SPONSOR by giving $25
per month per child," the brochures separately set forth an
invitation for donors to "become a FRIENDS OF THE CHILDREN month
choir sponsor."
Ser. No. 74/584,732
8
Accordingly, because the designation "AFRICAN
CHILDREN'S CHOIR" conveys forthwith a significant feature of
applicant's charitable fund raising services, namely, the African
children's choir featured in conjunction therewith, such term is
merely descriptive within the meaning of the statute.
Decision: The refusal under Section 2(e)(1) is
affirmed.
E. W. Hanak
G. D. Hohein
P. T. Hairston
Administrative Trademark Judges,
Trademark Trial and Appeal Board