Garry Jalowka

Trademark Trial and Appeal Board

May 16, 2008

No. 78919452 (T.T.A.B. May. 16, 2008)

Mailed:
May 16, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Jalowka
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Serial No. 78919452
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Thomas D. Foster, Esq. for Garry Jalowka.

Ira Goodsaid, Trademark Examining Attorney, Law Office 101
(Ronald R. Sussman, Managing Attorney).
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Before Zervas, Walsh and Cataldo, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:

Garry Jalowka filed, on June 28, 2006, an application
(Serial No. 78919452) to register on the Principal Register
the mark AMERICA’S WINDOW CLEANER (in standard character
form) for services ultimately amended to the following:
“franchise services, namely, offering technical
assistance in the establishment and/or operation
of cleaning and maintenance businesses; wholesale
catalog ordering, mail order and store services
featuring cleaning and maintenance equipment,
supplies and materials; on-line ordering services
featuring cleaning and maintenance equipment,
supplies and materials; business management and
consultation in the nature of client account
management for others in the field of cleaning
THIS OPINION IS NOT
A PRECEDENT OF
THE T.T.A.B.
Ser. No. 78919452
2
and maintenance services” in International Class
35; and

“cleaning of buildings, industrial premises and
residential houses; window cleaning; consulting
services rendered in conjunction with the
foregoing” in International Class 37.

The application is based on a bona fide intent to use the
mark in commerce under Trademark Act Section 1(b), 15
U.S.C. §1051(b). Applicant has entered a disclaimer of
WINDOW CLEANER.
Registration has been finally refused under
Section 2(e)(2) of the Trademark Act, 15 U.S.C. §1052(e)(2)
on the ground that applicant's mark is primarily
geographically descriptive of applicant's services.
Applicant has appealed the final refusal. Both
applicant and the examining attorney have filed briefs. We
affirm the refusal to register.
As a general proposition, in order for registration of
a mark to be properly refused on the ground that it is
primarily geographically descriptive of an applicant's
goods or services, it is necessary to establish (i) that
the primary significance of the mark is that of the name of
a place generally known to the public, and (ii) that the
public would make a goods/place or services/place
association, that is, believe that the goods or services
for which the mark is sought to be registered originate in
Ser. No. 78919452
3
that place. See In re JT Tobacconists, 59 USPQ2d 1080
(TTAB 2001); University Book Store v. University of
Wisconsin Board of Regents, 33 USPQ2d 1385 (TTAB 1994); In
re California Pizza Kitchen Inc., 10 USPQ2d 1704 (TTAB
1988), citing In re Societe Generale des Eaux Minerales de
Vittel S.A., 824 F.2d 957, 3 USPQ2d 1450 (Fed. Cir. 1987).
Provided that these conditions are met, and the goods or
services come from the place named by or in the mark, the
mark is primarily geographically descriptive.
In the dictionary definition accompanying the
examining attorney’s brief, the word “America” is defined
in Merriam-Webster Online Dictionary located at merriam-
webster.com as “1 either continent (North America or …
South America) of the western hemisphere … 3 UNITED STATES
OF AMERICA.”1 There is no dispute that the area described
by AMERICA is neither remote nor obscure. In fact, every
member of the general public would certainly know the
meaning of the word. Consequently, there is simply no

1 Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d), provides that
the record in an application should be complete prior to the
filing of an appeal. See also TBMP § 1207.01 (2d ed. rev. 2004).
However, the Board may take judicial notice of dictionary
definitions, including online dictionary entries which exist in
printed format, and we take judicial notice of the definition
provided by the examining attorney. See In re CyberFinancial.Net
Inc., 65 USPQ2d 1789 (TTAB 2002). See also University of Notre
Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594
(TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser. No. 78919452
4
doubt that the term AMERICA’S particularly signifies origin
in the United States of America.
Turning then to the term WINDOW CLEANER in applicant’s
mark, the examining attorney maintains that this term is
generic or highly descriptive of applicant's services.
Applicant has not disputed this, and in fact, has entered a
disclaimer of the term. A disclaimer is essentially an
admission of the merely descriptive nature of such term and
the lack of an exclusive right therein at the time of the
disclaimer. In re DNI Holdings Ltd., 77 USPQ2d 1435 (TTAB
2005). Thus, WINDOW CLEANER clearly constitutes a highly
descriptive or generic term for, at the very least,
applicant's various services in the cleaning and
maintenance businesses, including window cleaning and
consulting services regarding window cleaning, set forth in
his application. The presence of a generic or highly
descriptive term in a mark that also contains a primarily
geographically descriptive term does not serve to detract
from the primary geographical significance of the mark as a
whole; AMERICA’S therefore is the dominant origin-
indicating feature of the mark. See, e.g., In re Cambridge
Digital Systems, 1 USPQ2d 1659, 1662 (TTAB 1986) (“[W]e do
not believe that the addition of the highly descriptive
word DIGITAL and the design detract from the primary
Ser. No. 78919452
5
geographic significance of the mark, CAMBRIDGE being the
dominant origin-indicating feature of the mark.”); In re
BankAmerica Corp., 231 USPQ 873 (TTAB 1986).
The primary significance of the mark AMERICA’S WINDOW
CLEANER, when considered as a whole, is therefore
geographical in connection with window cleaning and related
services.
Additionally, although this is an intent-to-use
application, there appears to be no question that the
services listed in the application will come from the
United States of America. Applicant is identified as a
United States citizen in his application, with a California
address. Where there is no genuine issue that the
geographical significance of a term is its primary
significance, and where the geographical place named by the
term is neither obscure nor remote, a public association of
the goods with the place may ordinarily be presumed from
the fact that the applicant's goods come from the
geographical place named in the mark. See, e.g., In re
California Pizza Kitchen Inc., supra; In re Handler Fenton
Westerns, Inc., 214 USPQ 848 (TTAB 1982). Thus, a public
association of the services with the United States of
America is presumed. Applicant has offered no explanation
as to why his various services would not be associated by
Ser. No. 78919452
6
the purchasing public with the United States of America if
sold under the mark AMERICA’S WINDOW CLEANER.
Applicant submitted numerous registrations for marks
containing AMERICA or AMERICA’S with his response to the
initial Office action and argues that “[t]hey are highly
similar in formation and offer strong evidence in support
of registration.” Brief at p. 7. These registrations are
not persuasive because each case must be decided on its own
merits based on the evidence of record. See In re Nett
Designs Inc., 236 F3d 1339, 57 USPQ2d 1564 (Fed. Cir.
2001). We obviously are not privy to the records involved
in the registered marks and, in any event, the allowance of
those registrations does not control the result in this
case, which involves a different mark.
Further, applicant, with his request for
reconsideration, submitted a list of registrations
containing AMERICA’S or AMERICAS taken from the Office’s
TESS database of marks. The submission of a list of
registrations is insufficient to make them of record. In
re Duofold Inc., 184 USPQ 638 (TTAB 1978). Also, the list
is of extremely limited probative value because it does not
show the goods or services for the marks, and does not
indicate whether the marks have been registered on the
Ser. No. 78919452
7
Supplemental Register or under Section 2(f) of the
Trademark Act, 15 U.S.C. § 1052(f).
Applicant, at p. 6 of his brief, has argued:
[T]here is no possibility that a consumer, upon
encountering Applicant's mark will believe that
the term AMERICA’S primarily signifies that the
United States is the location nor origin of the
services. Instead, the term AMERICA’S, when used
in conjunction with the phrase WINDOW CLEANER
introduces precisely the type of “nuance” that
should remove the Mark from the primarily
geographically descriptive category. Namely, the
addition of the term AMERICA’S invokes a sense of
patriotism and even personal ownership in the
services being offered under the mark. The
services offered are befitting of “America’s
windows,” and all of the pride and patriotism
associated therewith.

Applicant has not supported his argument regarding this
“nuance” with any evidence. Suffice it to say that we are
not persuaded the consuming public will recognize “a sense
of patriotism and even personal ownership” in the mark
AMERICA’S WINDOW CLEANER for window cleaning and services
related thereto.
In view of the foregoing, we find that the examining
attorney has established a prima facie case that
applicant's mark is geographically descriptive of
applicant's services under the test articulated earlier in
this decision, and applicant has not rebutted the examining
attorney’s prima facie case.
Ser. No. 78919452
8
Decision: The refusal to register under Section
2(e)(2) is affirmed for the services in International
Classes 35 and 37.