Future First LLC

Trademark Trial and Appeal Board

Jan 14, 2009

No. 78775636 (T.T.A.B. Jan. 14, 2009)

Mailed:
January 14, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Future First LLC
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Serial No. 78775636
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Larry M. Meyers of Larry Meyers, PC for Future First LLC.

Jordan A. Baker, Trademark Examining Attorney, Law Office
102 (Karen Strzyz, Managing Attorney).
_______

Before Bucher, Zervas and Walsh, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:
On December 17, 2005, Future First LLC filed an
application to register on the Principal Register the term
VIDEO ROCKER (in standard character form) as a trademark
for “furniture, chair” in International Class 20.1 The
examining attorney finally refused registration of
applicant's designation under Trademark Act Section
2(e)(1), 16 U.S.C. § 1052(e)(1), because “the proposed mark

1 Application Serial No. 78775636, claiming first use anywhere
and first use in commerce on October 31, 1988.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 78775636
2
merely describes the goods.”2 Additionally, because
applicant seeks registration in the alternative under
Section 2(f), the examining attorney refused registration
because “applicant’s [Section 2(f)] evidence … fails to
sufficiently identify that applicant is the known provider

2 In his second non-final Office action, the examining attorney
stated;
The examining attorney finds the proposed mark
incapable of serving as a source-identifier for
applicant’s goods because VIDEO ROCKER has become the
generic name for applicant’s chair goods. Therefore,
the refusal of registration under Section 2(e)(1) is
continued, notwithstanding applicant’s claim of
acquired distinctiveness under Section 2(f), 15 U.S.C.
§1052(f).

The examining attorney has attached additional
internet-based evidence and LexisNexis evidence
showing VIDEO ROCKER to be the generic, common
commercial name for applicant’s goods.
(Emphasis in the original.) Despite these statements regarding
genericness, we do not consider genericness to be an issue in
this case because the final Office action stated that “the
proposed mark merely describes the goods and may in fact be the
generic name for a specific kind of chair goods.” Final Office
action at p. 1. Additionally, the examining attorney did not
apply the two-part test for genericness articulated by the
Federal Circuit, our primary reviewing court, in H. Marvin Ginn
Corp. v. International Ass’n of Fire Chiefs, Inc., 782 F.2d 987,
228 USPQ 528 (Fed. Cir. 1986).
Rather, because a generic term is the ultimate in
descriptiveness under Section 2(e)(1), it appears to us that the
examining attorney is contending that applicant's mark is so
highly descriptive that no amount of evidence can serve to
establish its acquired distinctiveness. See In re Capital
Formation Counselors, Inc., 219 USPQ 916, 918 (TTAB 1983) (“If,
on the other hand, we find the mark to be merely descriptive of
the services and, in fact, so highly descriptive of them that no
amount of evidence could persuade us that the mark has become
distinctive, we must affirm the refusal of registration.
Similarly, in this situation, we need not consider any of the
Serial No. 78775636
3
of a chair good commonly referred to as ‘Video Rocker.’”3
Final Office action at p. 1 (emphasis in the original).
Applicant has appealed the examining attorney’s final
refusal to register its proposed mark. Both applicant and
the examining attorney have filed briefs. We affirm the
refusal to register.
Is the mark Merely Descriptive under Section 2(e)(1)?
“Whether a given mark is suggestive or merely
descriptive depends on whether the mark ‘immediately
conveys … knowledge of the ingredients, qualities, or
characteristics of the goods … with which it is used,’ or
whether ‘imagination, thought, or perception is required to
reach a conclusion on the nature of the goods.’” In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.
1987), citing In re Quik-Print Copy Shops, Inc., 616 F.2d
523, 205 USPQ 505, 507 (CCPA 1980).
The record contains a declaration filed by Rory Scott
Dean, applicant's owner, who states that he invented the
Video Rocker prior to 1988; that the “Video Rocker is a

affidavits or other material made of record by applicant in its
Section 2(f) claim of distinctiveness.”); and TMEP § 1212.02(c).
3 For the sake of completeness, and because the record is
unclear, we consider applicant as seeking registration under the
provisions of Section 2(f) in the alternative. Accordingly, we
make clear that we do not consider applicant to have conceded
that its proposed mark is merely descriptive. See TMEP
§ 1212.02(c) (“… the alternative claim does not constitute a
Serial No. 78775636
4
legless rocking chair, with a curved bottom, that sits on
the floor and rocks back and forth front to back.” See
Dean dec., ¶¶ 2 and 3, filed with response to first Office
action. The chairs may be used for playing video games.
The examining attorney argues as follows at unnumbered
pages 3 – 4 of his brief:
“[V]ideo rocker” is the common commercial name
for a particular kind of curved, legless chair,
which possesses rocking qualities and may be used
by players of video games. Applicant’s mark
describes the nature of the goods. Although the
evidence in the record shows this category of
chairs to vary moderately in stylization, size,
and upholstered material, all of the chairs
feature a basic set of characteristics that would
allow a consumer to recognize the overall style
or form instantly as a chair known as a “video
rocker,” and without a single association of
source. The evidence does not show that
consumers associate the wording “video rocker”
specifically with a chair manufactured by
applicant, but rather, with a particular style of
chair produced by a wide variety of manufacturers
and sold under various trademarks or as unbranded
goods.

To establish a prima facie case of descriptiveness, the
examining attorney relies on articles obtained through
lexisnexis.com. Excerpts from several of those articles
are provided below:
• Chicago Tribune, August 5, 2004
“As suggested by one of this summer's hottest
anthems, you can ‘lean back’ in comfort in a video

concession that the matter sought to be registered is not
inherently distinctive.”)
Serial No. 78775636
5
rocker, $79.99, from Target. Whether playing a video
game, watching TV or just chilling, simply rock away
and enjoy.”
• Plain Dealer (Cleveland), November 26, 2005
“Tempers flared Thursday at Target in Parma as
shoppers competed for a limited number of hot-selling
video rockers priced at $19.99, or half off.”
• St. Louis Post-Dispatch, May 13, 2006
In discussing various rocking chairs identified as
“duo rocker,” “smooth rocker,” “kid rocker,” article
discusses “Video rocker: This runner-less chair is
made especially for competitions with the X-Box or
teen telephone gossip.”
• Gale Group, Inc. and Visual Studies Workshop
Afterimage, March 1, 2006
“In the other main chamber of the exhibition is Anne-
Marie Schleiner's eleven-minute socially critical
machinima video, PS2 Diaries (2004). To experience
the piece, the viewer sits in a video rocker--a
legless gaming chair--and listens to Schleiner's
video on headphones.”
• Furniture Today, April 27, 2006
“Pittsburgh Steelers sofa covered in Global Textile
Alliance Passion Suede, 36 colors, transitional
styling with welded legs, $499. Company, which
merged with Racing Furniture, is expanding NASCAR
licensing to include officially licensed NFL,
collegiate and NBA sofas and recliners as well as a
kid's recliner and video rockers.”
• Furniture Today, April 28, 2006
University Loft also is telling a color story here.
Kathy Carlson, national sales manager, said an in-
line Mission youth bedroom in a merlot finish has
been refinished in white to appeal to girls. The
company also is introducing video rockers in greens,
blues and yellows - and a Malibu tween-sized
sectional series with washable colors in red, green,
blue, tan and pink.

Serial No. 78775636
6
Additionally, the examining attorney has made of record the
following evidence taken from Internet web pages:
• target.com - offering numerous “Video Rockers”
for sale under the category “Video Rockers,” as a
subcategory under “Teen Room,” with the product
names, e.g., “Denim Video Rocker,” “Camou Trouper
Video Rocker – Gray” and “Beanbag Video Rocker”;

• amazon.com - identifying a product as “Modern
Contemporary Single Video Rocker/Rocking Chair in
Black Metal Frame with Black Fabric Upholstered
Seats” and identifying the product features as
“New Modern Chaise Video Rocker/Rocking Chair
Lounge NR”;

• onewayfurniture.com - listing “Video Rocker
Chairs” along with “Bunk Beds,” Kids Toy Chests,”
“Kids Toy Chests” and “Kids Rocking Chairs” as
product categories;

• mvp.com - offering “Oakland Raiders Video
Rocker” and stating “Get comfortable in this
Oakland Raiders soft backed micro fiber suede
video rocker, made with a sturdy engineered
hardwood frame which is well balanced and sits up
straight when not sat in.” No other term for
the product appears in the webpage;

• lnt.com (Linens-n-Things) - describing a
“Folding Video Rocker” as “This oversized, micro
fiber suede, video rocker has an adjustable
pillow as well as …”;

• toysrus.com – stating “Get comfortable in this
Phoenix Suns soft backed micro fiber suede video
rocker …”;

• onepurplefrog.com - listing “Video
Rocker/Chair” as a product along with “Chaise
Lounger,” “Sports Ball Puffs” and Wedge Lounger”;

• beanbags.com – a website offering “Video
Rockers” for sale described as “With a supportive
scooped shape, plenty of styles, and a lot of
cushion, a video rocker is perfect for anyone.”
Serial No. 78775636
7
This site also has a “Video Rocker” product
category, along with “Bean Bag Chairs,” “Bean Bag
Furniture” and “Sports Bean Bag Chairs”; and
states “Things To Know about Video Rockers[.] …
So comfortable and easily portable, video rockers
have become a favorite seat for children, teens,
and adults. … We also offer video rockers with
build-in speakers.”

• floorseating.com – a website offering a “video
rocker” stating “Rock away in our video rocker!
Perfect for those long marathon movie nites.
This video rocker is made of Cotton; Vinyl
(base). Cleaning with mild soap and water is
recommended. Comes with removable cover and
child proof CPSC approved zipper. Filled with
recycled shredded foam. Colors for the video
rocker available are pink seat/lavender base,
navy seat/navy base, and turquoise seat/orange
base.

The examining attorney has introduced other webpages
demonstrating use of “Video Rocker.” With regard to this
evidence, because the initial letters in “Video Rocker” are
in capital letters, and there are no other readily
identifiable trademarks for the goods on such webpages, we
cannot discount that the websites are using “Video Rocker”
in a trademark manner. See, e.g.:
• beanbags.com – listing a chair described as
“Boomchair Racer Multimedia Video Rocker”;

• homevisions.com - listing a chair as “Vinyl Video
Rocker Chair” and stating “This rocker is no slouch!
Watch TV, play video games or lounge the day away in
the perfect casual rocker for all members of the
family”;

• touchofclasscatalog.com – identifying a “Video Game
Entertainment Rocker Chair” as “Video Rocker,” but
also stating “Buy 2 or more (Video Rocker or Ottoman)
Serial No. 78775636
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and receive 10% off each!),” with video rocker used
with the generic term “ottoman”; and

• walmart.com – offering “Video Rocker, Navy” and
identifying product as a “rocker with modern,
attractive design.”

However, these websites are far fewer in number than the
websites and articles using “video rocker” as the name of a
type of chair.
In considering all of the evidence in the record, we
find that the term “video rocker” is a recognized common
commercial name for a type of chair. In arriving at our
finding, we have considered applicant's arguments that (i)
“the word ‘video’ is not normally used together with the
word ‘rocker’”; (ii) that the “mark does not provide an
actual description of the chair itself, but suggests to the
consumer that the rocker is somehow related to videos”; and
(iii) that imagination and perception is required in
arriving at the meaning of “video rocker.” Brief at p. 6.
Such arguments are not persuasive because of the ample
evidence of record showing that “video rocker” is a common
commercial name for a chair with a rounded base and back
and no legs. We therefore find that the mark is merely
descriptive of the nature of applicant's “furniture, chair”
goods and may not be registered on the Principal Register
absent a showing of acquired distinctiveness.
Serial No. 78775636
9
Has the Mark Acquired Distinctiveness?
It is applicant's burden to establish a prima facie
case of acquired distinctiveness. See Yamaha International
Corp. v. Hoshino Gakki Co., Ltd., 840 F.2d 1572, 6 USPQ2d
1001 (Fed. Cir. 1988). In determining a claim of acquired
distinctiveness, the Federal Circuit has offered the
following guidance:
In determining whether secondary meaning has been
acquired, the Board may examine copying,
advertising expenditures, sales success, length
and exclusivity of use, unsolicited media
coverage, and consumer studies (linking the name
to a source). Cicena Ltd. v. Columbia Telecomms
Group, 900 F.2d 1546, 1551, 14 USPQ2d 1401 (Fed.
Cir. 1990). On this list, no single factor is
determinative. A showing of secondary meaning
need not consider each of these elements.
Rather, the determination examines all of the
circumstances involving the use of the mark. See
Thompson Med. Co., Inc. v. Pfizer Inc., 753 F.2d
208, 217, 225 USPQ 124 (Fed. Cir. 1985).
Finally, the applicant'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 Intern. (Am.) Corp., 894 F.2d 1316,
1317, 13 USPQ2d 1727 (Fed. Cir. 1990) (“the
greater the degree of descriptiveness the term
has, the heavier the burden to prove it has
attained secondary meaning”).

In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420,
1424 (Fed. Cir. 2005) (USPQ cites added).
To demonstrate that its proposed mark has acquired
distinctiveness, applicant relies principally on Mr. Dean’s
declaration. However, Mr. Dean did not provide key
Serial No. 78775636
10
information such as applicant's advertising expenditures,
its sales volume or sales revenues. He also did not provide
specifics regarding applicant's advertising and sales
activities. He indicates that applicant has manufactured
and sold “Video Rockers, under the Video Rocker trademark to
furniture stores” in the western United States on a regular
basis since 1988, but even if an applicant has used its mark
for a long time, it does not necessarily establish that the
mark has acquired distinctiveness. In re Interstate Folding
Box Co., 167 USPQ 241, 245 (TTAB 1970) (“We are not
persuaded by this record that the term ‘INNER-LINED’ has
become distinctive of applicant's goods and does in fact
serve as an indication of origin for such goods. It may
well be that applicant, by reason of its long and continuous
use, has acquired a de facto secondary meaning in the term
‘INNER-LINED’ in the sense that some or even many people
have come to associate ‘INNER-LINED’ with applicant; but
this falls far short of establishing a propriety or a legal
or dejure right therein necessary to support registration”).
Further, the Wisconsin and Utah trademark registration
certificates he submitted are not helpful; state trademark
registrations are of relatively little probative value.
See, e.g., In re Vico Products Mfg. Co., Inc., 229 USPQ
364, 370 (TTAB 1985), recon. denied, 229 USPQ 716 (TTAB
Serial No. 78775636
11
1986) (“While applicant’s design may be registrable under
the provisions of California trademark law, it is the
federal trademark statute and the cases interpreting it by
which we must evaluate the registrability of applicant’s
asserted mark.”). Mr. Dean’s statements regarding
participation in telethons, and sponsorships of events,
teams and race cars, are also of limited probative value
because applicant has not provided sufficient information
regarding its activities from which we can evaluate the
extent, if any, applicant's activities created an
association of VIDEO ROCKER with applicant. Additionally,
the record is completely devoid of direct evidence that the
relevant classes of purchasers of applicant's goods view
VIDEO ROCKER as a distinctive source indicator for
applicant's goods. Accordingly, even if VIDEO ROCKER is
merely descriptive and not generic, given the highly
descriptive nature of the designation VIDEO ROCKER, we would
need to see a great deal more evidence (especially in the
form of direct evidence from customers) than what applicant
has submitted in order to find that the designation has
become distinctive of applicant's goods.
For all of the reasons discussed above, and
notwithstanding applicant's unpersuasive arguments to the
contrary, we find that VIDEO ROCKER is merely descriptive
Serial No. 78775636
12
of applicant's goods in that it directly describes the
nature of applicant's chairs and that applicant has not
established that it has acquired distinctiveness in VIDEO
ROCKER. We find that registration therefore is properly
refused under Trademark Act Section 2(e)(1) and applicant
has not established acquired distinctiveness.
Decision: The refusal to register is affirmed.