Green Green Earth Inc.

Trademark Trial and Appeal Board

May 13, 2013

No. 85302829 (T.T.A.B. May. 13, 2013)

Mailed:
May 13, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Green Green Earth Inc.
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Serial No. 85302829
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Matthew H. Swyers of The Swyers Law Firm, PLLC for Green
Green Earth Inc.

Lourdes Ayala, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
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Before Seeherman, Grendel and Taylor, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Green Green Earth Inc. has appealed from the final
refusal of the trademark examining attorney to register the
mark VERTICAL FARM, in standard characters, for goods
identified as “hydroponics grow box in the nature of a
closed environment equipped with lights, exhaust system,
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 85302829
2
hydroponics growing container and odor control system.”1
Registration has been refused pursuant to Section 2(e)(1)
of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground
that applicant’s mark is merely descriptive of a feature
and characteristic of the identified goods.
Both applicant and the examining attorney have filed
appeal briefs.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052(e)(1), if it forthwith
conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the
goods or services. In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 217-18 (CCPA 1978). A term need not
immediately convey an idea of each and every specific
feature of the applicant’s goods or services in order to be
considered to be merely descriptive; rather, it is
sufficient that the term describes one significant
attribute, function or property of the goods or services.
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is

1 Application Serial No. 85302829, filed April 23, 2011, based
on Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b)
(intent-to-use).

Ser No. 85302829
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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 the goods or services, and the possible
significance that the term 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).
It is the examining attorney’s position that VERTICAL
FARM describes “a feature or characteristic of applicant’s
goods, namely, that the hydroponics grow boxes when used
together or apart create a vertical farm or are used for
vertical farming.” Brief, unnumbered p. 5. As explained
in a Wikipedia article on Vertical Farming, “vertical
farming is a concept that argues that it is economically
and environmentally viable to cultivate plant or animal
life within skyscrapers, or on vertically inclined
surfaces.” The article states that American ecologist
Dickson Despommier has argued that plant and animal life
should be cultivated within skyscrapers. His concept would
promote the mass cultivation of plant and animal life for
Ser No. 85302829
4
commercial purposes in skyscrapers, and would use advanced
greenhouse technology such as hydroponics and aeroponics.2
An April 1, 2007 article in “New York” magazine,
http://nymag.com, discussed the possibilities of creating a
vertical farm along the lines envisioned by Professor
Despommier, in which skyscrapers would be converted into
crop farms. The article goes on to say that, while
calculations about the actual environmental benefits are
speculative, “a real-life example offers a clue: After a
strawberry farm in Florida was wiped out by Hurricane
Andrew, the owners built a hydroponic farm. By growing
strawberries indoors and stacking layers on top of each
other, they now produce on one acre of land what used to
require 30 acres.”3
A December 11, 2008 “Time Magazine” article entitled
“Vertical Farming,” time.com, states:
Vertical farming could allow food to be grown
locally and sustainably,” says Glen Kertz, CEO of
Valcent, a tech company based in El Paso, Texas,
that’s trying out the process. His firm uses
hydroponic greenhouse methods to grow upward
rather than out. The result saves space -- vital
in urban areas -- and allows farmers to irrigate
and fertilize with far less waste.4

2 Office action mailed August 5, 2011, TSDR p. 3.
3 Office action mailed August 5, 2011, TSDR p. 6.
4 Office action mailed June 26, 2012, TSDR p. 5.
Ser No. 85302829
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An article on “Vertical Farming-Greenhouse Farming” on
the website Squidoo explains:
Vertical farming is a proposal to build high rise
buildings within urban areas to enable the
growing of food crops to help avoid the impending
food shortage which is envisaged in the near
future. … To put in a nutshell vertical farming
is like a high rise greenhouse, sometimes having
the label farmscrapers.

The article goes on to explain that “Hydroponics is the
name given to a method for growing plants without the use
of soil, instead using mineral nutrient solutions to
promote growth.”5
And by 2011, an article described a prototype vertical
farm in existence in South Korea as a “little three storey
[sic] demonstration project in a nondescript building
operating much like Dickson Despommier has described in his
book, The Vertical Farm….” A photograph shows heads of
lettuce “lined up in stacked layers.”6
It is clear from the foregoing that hydroponics is a
method used in connection with vertical farming. As a
result, the relevant class of consumers for applicant’s
goods, seeing the mark VERTICAL FARM in connection with
hydroponics grow boxes, would immediately understand that

5 Office action mailed June 26, 2012, TSDR p. 2.
6 “Real Live Vertical Farm Built in South Korea, Churning Out
Lettuce,” July 25, 2011, Treehugger website, www.treehugger.com,
Office action mailed August 5, 2011, TSDR p. 5.
Ser No. 85302829
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these boxes would be suitable for use in a vertical farming
structure or environment.
Although applicant contends that the term VERTICAL
FARM would not “promptly trigger a consumer to think of a
closed environment equipped with lights, exhaust system,
hydroponics growing containers and odor control systems,”
brief, p. 7, this argument would have us view the mark in a
vacuum. As stated above, whether a term is merely
descriptive is determined not in the abstract, but in
relation to the goods for which registration is sought.
Applicant has also pointed out that its grow boxes are not
intended for use in multistory greenhouses, or on rooftops
of tall buildings. First, the term “vertical farming” is
used not only for the literal farming skyscrapers
envisioned by Professor Despommier, but for plants that are
grown in a layered arrangement, such as the stacked layers
of lettuce shown in the South Korea project. Moreover,
even if we were to accept that applicant’s grow boxes are
not currently intended to be used in multistory greenhouses
or on rooftops of tall buildings, as identified in
applicant’s application the grow boxes can be used in
vertical farming. Because the mark immediately and
directly conveys information about this characteristic of
the identified goods, the mark is merely descriptive.
Ser No. 85302829
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Decision: The refusal of registration is affirmed.