Fusion 360, Inc.Download PDFTrademark Trial and Appeal BoardMar 27, 2014No. 85582688 (T.T.A.B. Mar. 27, 2014) Copy Citation Mailed: March 27, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Fusion 360, Inc. ________ Serial No. 85582688 _______ Brett E. Field of Bozicevic Field & Francis LLP, for Fusion 360, Inc. Robert Clark, Trademark Examining Attorney, Law Office 101 (Ronald R. Sussman, Managing Attorney). _______ Before Seeherman, Bergsman and Ritchie, Administrative Trademark Judges. Opinion by Ritchie, Administrative Trademark Judge: Fusion 360, Inc., applicant herein (“applicant”), seeks registration on the Principal Register of the mark “BUD SET,”1 in standard character format, for goods identified as “fertilizers; plant foods; chemicals for use in agricultural and industry, namely, microbial nutrient 1 Serial No. 85582688, filed on March 28, 2012, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on bona fide intent to use. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Ser. No. 85582688 2 compositions, microbial compositions, bioremediation compositions, mineral fertilizing compositions, and plant nutrient compositions,” in International Class 1. The trademark examining attorney refused registration on the ground that applicant’s mark is merely descriptive of the identified goods under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1). Both applicant and the examining attorney filed briefs. After considering all of the evidence and arguments, we affirm the refusal to register. A term is deemed to be 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, characteristic, feature, function, purpose or use of the goods or services. See, e.g., In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). Whether a 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 term Ser. No. 85582688 3 would have to the average purchaser of the goods or services because of the manner of its use. That a term may have other meanings in different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). 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 argues that the term “bud set” is descriptive of the goods in the application, specifically, that the evidence shows that the term “bud set” refers to a growth stage of plants, for which the “fertilizers; plant foods;” and “chemicals” identified in the application would be used. As such, the term provides information about the goods. In this regard, the examining attorney submitted evidence showing third-party use of the term “bud set” to describe a specific growth stage of plants. Some examples include the following: Evergreen of Johnson City: Fertilizing Info: Azaleas having shallow root systems prefer to be fed monthly from May thru September, or commonly referenced as Bloom to Bud. Start first fertilizer application directly after flowering period and repeat monthly to early fall when bud set has begun. Ser. No. 85582688 4 Rhododendron are very similar to that of Azaleas [sic] being fed from the period immediate following their flowering period and down to bud set in September. Rhododendrons are to be fed 2- 3 times durign [sic] this period or every other month for lush foliage and great fall bud set and successful spring flowering. Attached to July 9, 2012 Office Action at pp 10- 12. www.evergreenofjohsoncity.com FOXFARM: Liquid Fertilizers: Our popular Grow Big® Liquid Plant Food is available in a special formula just for hydroponic systems. This is a potent, fast-acting, water soluble fertilizer that encourages vigorous vegetative growth from the first week through bud set. Attached to July 9, 2012 Office Action at p. 5. http://foxfarmfertilize.com. The Effect of Phosphorus on Rhododendron Flower- Bud Formation, by Arthur S. Myhre and W.P. Mortensen; April 1964; Journal American Rhododendron Society; Nitrogen also increased bud set (treatment 2) but the joint effects of nitrogen and phosphorus (treatments 3 and 4) were much greater in all experiments conducted. Potassium was ineffective (treatment 5) under conditions of this test. Attached to August 8, 2013 Denial of Request for Reconsideration at p. 30-32. http://scholar.lib.vt.edu. Tree Physiology: Critical night length for bud set and its variation in two photoperiodic ecotypes of Betula pendula: We studied the variation in critical night length for bud set in two photoperiodic ecotypes (two lattitudinally distant stands) of silver birch . . . At the end of the treatments, apical bud set was observed and the percentage of seedlings with bud set calculated for each treatment and tree progeny. Attached to July 9, 2012 Office Action at p.7. http://treephy.oxfordjournals.org. Genetic basis of adaptation: bud set date and frost hardiness variation in Scots pine: Chapter Ser. No. 85582688 5 1: Introduction: 1.3 Bud set: Terminal bud set is one of the adaptive requirements of Scots pine trees in the autumn, since the right timing of bud set is essential for survival. Before the onset of low temperatures, growth ceases, and is followed by formation of resting buds that contain primordial for the next growing season. In first-year seedlings, bud set occurs after a free period of growth, whereas later primordial of the resting buds predetermine the growth for the next seasons (Jablanczy 1971, Lanner 1976). Attached to January 22, 2013 Final Office Action at p. 2. http://herkules.oulu.fi New Phytologist: Bud set in poplar-genetic dissection of a complex trait in natural and hybrid populations: Summary: The seasonal timing of growth events is crucial to tree distribution and conservation. The seasonal growth cycle is strongly adapted to local climate that is changing because of global warming. We studied bud set as one cornerstone of the seasonal growth cycle in an integrative approach. Attached to August 8, 2013 Denial of Request for Reconsideration at p. 2. http://onlinelibrary.wiley.com. Penny Mac hydrangea shows off qualities: Once the blooming cycle is over, the cycle begins once more with flower buds setting to provide a May bloom the next year. However, after bud set in late July, a few heads may open in the fall to give a little off-season color. Attached to August 8, 2013 Denial of Request for Reconsideration at p. 19-20. www.shreveporttimes.com Applicant admits that the term “bud set” may refer to a growth stage of plants, at least as one possible meaning of the term. Applicant argues, however, that this is not the test for mere descriptiveness, arguing “BUD SET, Ser. No. 85582688 6 considered to be a growth stage of a plant in which buds form, does not does not identify [sic] a composition such as 1) “fertilizer”, 2) “plant food”, or 3) ‘chemical for use in agriculture or industry.’” (appl’s brief at 5; emphasis in original). We note, in regard to this argument, that several of the excerpts submitted by the examining attorney, including the first three set forth above, specifically reference plant food or fertilizer when discussing “bud set.” As such, we cannot accept applicant’s argument that the two are “substantially unrelated.” Id. We note also applicant’s argument that the term “bud set” has “multiple connotations” including, for example, ear bud headphones and rubber duckies. (July 17, 2013 Response to Office Action). As stated above though, we must consider the term not in a vacuum, but in reference to the identified goods. See, e.g., In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219; DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012). Therefore, it is apparent that consumers would perceive “bud set,” in relation to applicant’s identified goods, as describing a function or purpose of them. In particular, it requires no thought or mental gymnastics to understand that “bud set,” when Ser. No. 85582688 7 referring to applicant’s goods, describes a feature highlighting the growth stage at which applicant’s “fertilizers; plant foods” or “chemicals” may be applied, or perhaps the growth stage that may be achieved when this is properly done. In re MBNA America Bank N.A., 67 USPQ2d at 1780. As such, we have no doubt that a consumer would understand “bud set,” used in connection with applicant's goods, as directly conveying information about them. See In re Tower Tech Inc., 64 USPQ2d at 1316-17; see also In re Conductive Services, Inc., 220 USPQ 84, 86 (TTAB 1983). Therefore, we find that the applied-for mark is merely descriptive of the identified goods. Decision: The refusal to register affirmed. Copy with citationCopy as parenthetical citation