Grow Co., Inc.

Trademark Trial and Appeal Board

Jul 22, 2004

No. 76487502 (T.T.A.B. Jul. 22, 2004)

Mailed:
July 22, 2004
Paper No. 11
Bottorff
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Grow Company, Inc.
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Serial No. 76487502
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Myron Amer of Myron Amer, P.C. for Grow Company, Inc.
Raul Cordova, Trademark Examining Attorney, Law Office 114
(Margaret Le, Managing Attorney).
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Before Walters, Bottorff and Drost, Administrative
Trademark Judges.
Opinion by Bottorff, Administrative Trademark Judge:
On February 3, 2003, applicant filed the above-
captioned application seeking registration on the Principal
Register of the mark QX, in typed form, for Class 42
services recited in the application as
analytical services, namely, method development
and validation, raw material testing, amino
acid analysis, vitamin analysis, mineral
testing, residue testing, dissolution and
disintegration testing, accelerated stability
testing/shelf life studies, trace analysis, ph
moisture content, melting point, and optical
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
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rotation, microbiological testing, qualitative
and quantitative analysis of fats and oils,
hydrocarbon, solvent, and wax analysis, and
advising on usage of instrumentations, namely,
fourier transform infrared, atomic absorption,
ultra violet/vis, gas chromatography, flame
ionization, high performance liquid
chromatography and thin layer chromatography.
The application is based on use in commerce under Trademark
Act Section 1(a), 15 U.S.C. §1051(a), and November 15, 2002
is alleged as the date of first use of the mark anywhere
and the date of first use of the mark in commerce.
At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register applicant’s mark on
the ground that the mark is not a substantially exact
representation of the mark as it appears on the specimen of
record. See Trademark Rule 2.51(a)(1), 37 C.F.R.
§2.51(a)(1).
Applicant and the Trademark Examining Attorney filed
main appeal briefs, but applicant did not file a reply
brief, and applicant did not request an oral hearing. We
affirm the refusal to register.
Applicant’s specimen of use consists of a two-sided,
8.5” x 11” three-panel brochure, both sides of which are
reproduced below (in reduced form).
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Trademark Rule 2.51(a) provides that “[i]n an
application under section 1(a) of the Act, the drawing of
the mark must be a substantially exact representation of
the mark as used on or in connection with the goods and/or
services.” We find that the mark applicant seeks to
register, i.e., QX (in typed form) is not depicted on the
specimen of record, and that the Trademark Examining
Attorney’s refusal therefore is proper.
First, it is apparent that the mark QX does not appear
on the first page of the specimen brochure. The letters Q
and X appear, in highly stylized form, as the first and
last letters of the stylized word QUALIMAX, but such usage
does not constitute service mark use of QX, per se, either
in typed form or special form.
As for the second page of the brochure, applicant
contends that the letters QX, in stylized form, appear in
the middle panel as paragraph “bullets” next to each of
applicant’s types of analytical services. The middle panel
is reproduced below at actual size, followed by a greatly
enlarged reproduction of two of the “bullets” themselves:
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However, we agree with the Trademark Examining
Attorney’s contention that these “bullets” are so highly
stylized that purchasers will not perceive them to be the
letters QX. As noted by the Trademark Examining Attorney,
it appears that the bullets consist of the stylized Q and
the stylized X that also appear as the first and last
letters of the word QUALIMAX, which is depicted in stylized
lettering on the first page of the brochure. The X is
depicted as a highly stylized stick figure human, who is
standing on a “platform” created by the extended tail of
the Q. We find that this highly stylized manner in which
the letters are depicted is an essential feature of the
commercial impression created by the mark as it appears on
the specimen. It is unlikely that purchasers will readily
understand, or even notice, that the “bullets” are
comprised of the letters QX, per se. Those letters, per
se, do not create a separate and distinct commercial
impression as they appear on the specimen, and they
therefore do not function as a trademark in and of
themselves. See, e.g., In re Chemical Dynamics Inc., 839
F.2d 1569, 5 USPQ2d 1828 (Fed. Cir. 1988); In re Miller
Sports Inc., 51 USPQ2d 1059 (TTAB 1999); and In re Boyd
Coffee Co., 25 USPQ2d 2052 (TTAB 1993).
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In essence, applicant is attempting to register in
typed form what is indisputably a special form mark.
Trademark Rule 2.52(a)(2), 37 C.F.R. §2.52(a)(2), provides
that a typed form drawing may only be used if “the mark
does not include a design element.” Because the design
element or stylization of the letters QX is so inextricably
integrated into the mark as it is displayed on the
specimen, we find that the mark may not be registered in
typed form. See In re Morton Norwich Products, Inc., 221
USPQ 1023 (TTAB 1983); In re Mango Records, 189 USPQ 126
(TTAB 1975); and In re United Services Life Insurance
Company, 181 USPQ 655 9TTAB 1973).1
For the reasons discussed above, we find that the
specimen of record does not evidence use of the mark
depicted on the drawing page, and that the application
therefore does not comply with Trademark Rule 2.51(a)(1).
Relatedly, we also find that the mark, as it is used on the
specimen of record, inextricably includes a design element,
1 Applicant has offered to submit an amended drawing which
depicts the mark in the special form in which it appears on the
specimen. We agree, however, with the Trademark Examining
Attorney’s contentions that (a) no such amended drawing was ever
submitted, and (b) even if it had been submitted, such an
amendment would constitute a material alteration of the mark and
would therefore be impermissible under Trademark Rule 2.72(a)(2),
37 C.F.R. §2.72(a)(2).
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and that it therefore may not be registered in typed form.
Trademark Rule 2.52(a)(2).
Decision: The refusal to register is affirmed.