Fusion 360, Inc.

Trademark Trial and Appeal Board

Mar 27, 2014

No. 85582688 (T.T.A.B. Mar. 27, 2014)

Mailed:
March 27, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fusion 360, Inc.
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Serial No. 85582688
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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).
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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
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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.