Grumpy Cat Limited

Trademark Trial and Appeal Board

Oct 26, 2018

No. 85838010 (T.T.A.B. Oct. 26, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: October 26, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Grumpy Cat Limited
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Serial No. 85838010
Serial No. 85836812
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Kia Kamran of Kia Kamran PC, for Grumpy Cat Limited.

Deborah E. Lobo, Trademark Examining Attorney, Law Office 109, Michael
Kazazian Managing Attorney.
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Before Kuhlke, Cataldo, and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Grumpy Cat Limited (“Applicant”) seeks registration on the Principal Register of the
following image as a special form mark1 for

1 A photograph may be an acceptable drawing of a special form mark if it accurately depicts
the mark and does not show additional matter that is not part of the mark. TMEP § 807
(October 2017). We observe that just as a particular image or photograph of an individual
may be a valid trademark if used consistently on specific goods and services, a photograph of
Serial Nos. 85838010 and 85836812
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the following goods and services:
Digital materials, namely, downloadable video files
featuring comedy; computer application software for
mobile phones, namely, software for games and
distributing images, videos and information in
International Class 9. 2
Paper goods, namely, posters, art prints, note cards,
greeting cards, Christmas cards, postcards, postage
stamps, calendars in International Class 16.3
Stuffed and plush toys; action figures; dolls; toy animals in
International Class 28.4
Entertainment services, namely, providing a website
featuring non-downloadable photographic, audio, video

an animal may be a valid trademark if used consistently on specific goods and services. See
Pirone v. MacMillan Inc., 894 F.2d 579, 13 USPQ2d 1799, 1801 (2d Cir. 1990); Brooks v.
Topps Co., 86 USPQ2d 1361, 1367 (S.D.N.Y. 2007) (“photographs are not inherently
distinctive” and are “protected only if, through usage, they have acquired distinctiveness and
secondary meaning.”) (citing Pirone, 13 USPQ2d at 1801). See also In re Elvis Presley
Enterprises Inc., 50 USPQ2d 1632, 1633-34 (TTAB 1999) (discussing whether the likeness of
an image in general of Elvis Presley serves as a mark) (citing Pirone, 13 USPQ2d at 1801).
2 Application Serial No. 85838010 (’010 application) was filed on January 31, 2013, based
upon Applicant’s claim of first use anywhere and use in commerce since at least as early as
November 8, 2012 for the Class 9 goods.
3 ’010 application based upon Applicant’s claim of first use anywhere and use in commerce
since at least as early as November 9, 2012 for the Class 16 goods.
4 Application Serial No. 85836812 (’812 application) was filed on January 30, 2013 based upon
Applicant’s allegation of a bona fide intention to use the mark in commerce under Section
1(b) of the Trademark Act, 15 U.S.C. § 1051(b). An amendment to allege use was filed on
January 22, 2015 alleging first use anywhere and use in commerce since at least as early as
November 30, 2013 for the Class 28 goods.

Both applications include the following description of the mark and color statement:
“The mark consists of the head and neck of a white feline with brown and black ears. The cat
has green eyes with black pupils. Surrounding each eye of the cat is an irregular shaped circle
consisting of brown, black and beige fur. The cat has white fur above its nose and surrounding
its mouth. Its nose and mouth are outlined in pink and black. The cat’s mouth is in a frown.
Surrounding the mouth are white whiskers.” “The colors white, beige, brown, black, green,
and pink are claimed as a feature of the mark.”

Serial Nos. 85838010 and 85836812
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and prose presentations in the field of comedy in
International Class 41.5
In both applications, the Trademark Examining Attorney has refused
registration under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on
the ground that the image is merely descriptive of the goods and services and that
Applicant has failed to establish acquired distinctiveness under Section 2(f) of the
Trademark Act, 15 U.S.C. § 1052(f).6 When the refusals were made final, Applicant
appealed and requested reconsideration in both applications. After reconsideration
was denied, Applicant sought consolidation of the appeals, which was granted by the
Board.7 After consolidation, Applicant requested a remand to the Examining
Attorney to consider new evidence of acquired distinctiveness. Jurisdiction was
restored to the Examining Attorney, but the Examining Attorney maintained the
final refusals and the consolidated appeals resumed. We affirm the refusals to
register.
Background
Grumpy Cat is the nickname given to Tardar Sauce, an actual housecat shown in
the applied-for mark and publicly available images with a frowning facial expression.

5 ’010 Application, based upon Applicant’s claim of first use anywhere and use in commerce
since at least as early as September 27, 2012 for Class 41 services.
6 The section 2(f) claim was made in the alternative. ’010 Application January 24, 2013
Response to Office Action, p. 1; ’812 application, June 19, 2014 Response to Office Action, p.
1.
7 We refer to the briefs and record in the ’010 application unless otherwise noted.
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Tardar Sauce became an Internet meme after pictures of her were posted on
Reddit.com in September 2012.8
9

8 ’010 application, December 26, 2013 Response to Office Action, pp. 1, 7 (statement of counsel
and exhibit); ’812 application, November 18, 2013 Response to Office Action, pp. 1, 2, 13, 20
(statement of counsel, and corroborating exhibits). A meme is “an idea, behavior, style or
usage that spreads from person to person within a culture.” Id. at p. 2. See also Random
House Dictionary (2018), www.dictionary.com. (A meme is defined as “a cultural item in the
form of an image, video, phrase, etc., that is spread via the Internet and often altered in a
creative or humorous way.”). The Board may take judicial notice of dictionary definitions,
including online dictionaries that exist in printed format or have regular fixed editions. Univ.
of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982), aff’d,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377
(TTAB 2006).
9 Reddit page posting of Tardar Sauce image that became a meme. ’010 application, December
26, 2013 Response to Office Action, p. 7. Following is an example of the Reddit posted image
of Tardar Sauce altered in humorous way (meme) by captioning the image with a statement
from the cat’s point of view. Id. at 22. .

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Section 2(e)(1), Mere Descriptiveness
Section 2(e)(1) of the Trademark Act precludes registration of a mark that, when
applied to the goods or services of the applicant, is merely descriptive of them. 15
U.S.C. § 1052(e)(1). A term, or an image, in this case, “is merely descriptive if it
immediately conveys knowledge of a quality, feature, function, or characteristic of the
goods or services with which it is used.” In re Chamber of Commerce of the U.S., 675
F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); In re Abcor
Dev. Corp., 588 F.2d 811, 200 USPQ 215, 217-218 (CCPA 1978). An accurate pictorial
depiction, such as an illustration or photograph, is considered just as descriptive as a
word if it conveys information as to the content, subject matter, feature or
characteristic of the goods or services. See, e.g., In re Swatch Grp. Mgmt. Servs. AG,
110 USPQ2d 1751 (TTAB 2014) (both the word Tourbillon and the design portion of
the mark, which represents a tourbillon, merely descriptive of applicant’s goods); In
re Soc’y for Private and Commercial Earth Stations, 226 USPQ 436 (TTAB 1985)
(pictoral representation of a satellite dish held merely descriptive of an association
promoting the interests of members of the earth station industry); In re Underwater
Connections, Inc., 221 USPQ 95, 95 (TTAB 1983) (pictorial representation of a
compressed air gas tank held merely descriptive of travel-tour services involving
underwater diving). A mark or image need not describe all of the characteristics,
attributes or functions of a product or service to be considered merely descriptive; it
need only describe “one significant function or attribute or property.” In re Bright-
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Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). Descriptiveness of an image is not
considered in the abstract but is considered in relation to the particular goods or
services for which registration is sought, the context in which it is being used, and
the possible significance that the image would have to the average purchaser of the
goods or services because of the manner of use or intended use. In re Bayer, 82
USPQ2d at 1831 (citing In re Abcor 200 USPQ at 216). See also In re Chamber of
Commerce, 102 USPQ2d at 1219.
A. Arguments and Evidence
The Examining Attorney’s position is that the design or image of the cat, in the
same way as the legally equivalent word “cat,” merely describes a feature of the goods
and services, because “applicant’s Class 28 toys are in the shape or form of a cat and
applicant’s Class 9, 16 and 41 goods and services all feature subject matter in the
form of images and content relating to cats,” particularly, “a cat that resembles the
cat shown in the mark.”10 The Examining Attorney also argues that stuffed toys in
the shape or form of cats, downloadable videos and software featuring cats or cat-
themed content, and calendars, postage stamps, prints and cards featuring cats or

10 21 TTABVUE 9, 10. As indicated, the Examining Attorney does argue that Applicant’s
mark describes the subject matter of the goods and services because it features the specific
Tardar Sauce image: “applicant’s mark … is unregistrable on the Principal Register, without
evidence of acquired distinctiveness, because the subject matter of applicant’s goods and
services is a cat, and in particular, a cat that resembles the cat shown in the mark.” 21
TTABVUE 9; ’010 application, June 27, 2013 Office Action, p. 1 (“the design … merely
describe[s] a feature and characteristic of the goods and services, that is, the subject matter
of the goods and services is the cat depicted in the mark.”); ’812 application, July 22, 2014
Office Action, p.1 (“Applicant’s argument that the mark is not descriptive … is not persuasive.
… Moreover, as the evidence of record shows, the goods are stuffed or plush cats that are
intended to resemble or depict the cat shown in the mark.”).
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cat themes are common in the marketplace.11 As to the Class 41 entertainment
services, the Examining Attorney notes that third-party websites feature “funny cat
videos, video clips, cat stories, cat photos and pictures and cat jokes,” showing that
the word “‘cat’ is necessary to describe the content and subject matter of the goods
and services.”12
Applicant, on the other hand, argues that “Applicant’s Mark is not a standard
depiction of a generic cat, nor is it for actual cat goods, or cat services, rather, it is a
distinctive depiction of a frowning and quite unusual looking cat—a cat which is
actually famous precisely due to its unusual look.”13 Applicant contends that the
applied-for image rises above mere descriptiveness of an image of a cat because of an
incongruous combination of descriptive elements (“coloring” and “frowning
expression”) that creates an unusual and unique result.14 Applicant asserts that due
to its uniqueness, the applied-for mark (hereinafter referred to as the “Tardar Sauce
image”) “is more like a stylized representation” of a cat which is registrable.15
Applicant also argues that “[t]he Examining Attorney has indiscriminately applied
the legal equivalent doctrine to state that the Mark equals the word ‘CAT’” and
provided no evidence that competitors use or need to use the particular image

11 Id. at 14-15.
12 Id. at 16.
13 19 TTABVUE 12.
14 Id. at 15-16.
15 Id. at 12.
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comprising the applied-for mark.16 (emphasis in original). Applicant submits that the
Tardar Sauce image “do[es] not immediately call to mind cat goods and services.”17
As provided in the record, photographs of some of the involved goods and
advertisements for the involved goods and services are reproduced below.
Class 9 computer application (“app”) software for mobile phones:

18

16 Id. at 11-14 (emphasis in original).
17 Id. at 12.
18 ’010 application, August 23, 2014 Office Action, p. 149.
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19
Class 16 postage stamps, calendars and greeting cards:

20

19 ’010 application, August 23, 2014 Office Action, p. 148.
20 ’010 application, August 23, 2014 Office Action, p. 96. The Tardar Sauce image on a United
States Postal Service stamp is displayed on the United States Postal Service web page with
other “cat postage stamps,” and identified as “custom postage.” Id.
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21
22

21 ’010 Application specimen.
22 ’010 Application specimen, July 22, 2014 Response to Office Action, p. 6.
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Class 28 goods:
23 24
25
2627

23 ’812 Application specimen.
24 ’812 application, January 22, 2015 Response to Office Action, p. 35.
25 ’812 application, January 22, 2015 Response to Office Action, p. 27.
26 ’812 application, January 22, 2015 Response to Office Action, p. 35.
27 ’812 application, January 22, 2015 Response to Office Action, p. 27.
Serial Nos. 85838010 and 85836812
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Class 41: website featuring non-downloadable video presentations:
28
29

28 ’010 application specimen; ’010 application, July 22, 2014 Response to Office Action, p. 11.
29 ’010 application, June 27, 2013 Office Action, p. 9.
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30
31

30 ’010 application, December 26, 2013 Response to Office Action, p. 34.
31 ’010 application, August 23, 2014 Office Action, pp. 157-160.
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B. Analysis
As an initial matter, we find the Examining Attorney’s invocation of the “legal
equivalents” doctrine to be inapposite in this case. An image or design and the word(s)
which identify or describe the design may be legal equivalents that conjure up the
same mental image to prospective purchasers. Thistle Class Ass’n v. Douglass &
McLeod, Inc., 198 USPQ 504, 511 (TTAB 1978) (citing Shunk Mfg. Co. v. Tarrant Mfg.
Co., 318 F.2d 328, 137 USPQ 881, 883 (CCPA 1963) and cases cited therein); In re
Duofold Inc., 184 USPQ 638, 640 (TTAB 1974). In Thistle Class Ass’n., the Federal
Circuit’s predecessor court held that the term THISTLE and an emblem depicting a
thistle were legal equivalents used to describe a class of sailboats. The court’s holding
was based on the fact that applicant and opposer, as well as numerous third parties,
had used the two marks consistently with one another over a period of several decades
to designate a specific class of sailboat. There is no similar evidence of longstanding
and simultaneous use of the purported equivalents in this case. Additionally, we do
not believe that the question of descriptiveness can be resolved simply by equating
the realistic cat image with the word “cat” and then finding that it describes any
products or services relating to cats generally, or grumpy looking cats, specifically.32
There are undoubtedly many ways to graphically depict a grumpy looking cat that
are substantially different in appearance from Applicant’s applied-for mark.

32 Most of the Examining Attorney’s Internet evidence shows goods and services similar to
Applicant’s, featuring photographic images of cats (unrelated to Tardar Sauce) or cat
illustrations as the subject matter or content. This evidence is not probative.

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Depictions of cats can be of many breeds and varieties, and feature many different
colors or color combinations, and Applicant’s applied-for mark is based on a drawing
that is limited to a particular cat, with the accompanying description that, while not
specifying a breed or type of cat, describes a cat with particular colors in particular
places.
As to Applicant’s arguments regarding the Examining Attorney’s lack of evidence
of “competitor need” or “competitor use,” the relevant standard requires only that we
consider whether the image conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the goods or services. In re Fat Boys
Water Sports LLC, 118 USPQ2d 1511, 1514 (TTAB 2016) (no requirement that the
Examining Attorney prove that others have used the mark at issue or need to use it);
In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (same). It is well established that
even if an applicant is the only user of a merely descriptive term, design, or image,
this does not render that term, design, or image distinctive, if it otherwise conveys an
immediate idea of an ingredient, quality, characteristic, feature, function, purpose or
use of the goods or services. Pierce Arrow Motor Car Co., 55 F.2d 434, 12 USPQ 315,
316 (CCPA 1932); In re Fat Boys, 118 USPQ2d at 1514; In re Swatch Grp., 110
USPQ2d at 1761 n.50 (citation omitted). See also Clairol, Inc. v. Roux Distrib. Co.,
280 F.2d 863, 126 USPQ 397, 398 (CCPA 1960) (even novel ways of referring to a
product may nonetheless be merely descriptive).
Applicant has also argued that In re D.C. Comics, Inc., 689 F.2d 1042, 215 USPQ
394 (CCPA 1982) is applicable to the Class 28 refusal. We find that case is
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distinguishable. The issue presented on appeal in In re D.C. Comics was whether
drawings of fictional comic book characters Superman, Batman and Joker could
function as trademarks for toy doll figurines of those characters. The Federal Circuit’s
predecessor court found that such marks were registrable for a doll made in the form
of the character. Here, the issue is not whether the Tardar Sauce image fails to
function as a trademark for the Class 28 stuffed toys. Rather, we are presented with
the simpler question of whether the Tardar Sauce image is merely descriptive of a
stuffed or plush toy intended to represent her.
Lastly, we are unpersuaded by Applicant’s arguments that the Tardar Sauce
image is akin to a highly stylized image. Cf. Allen v. Men’s World Outlet Inc., 679 F.
Supp. 360, 5 USPQ2d 1850, 1855 n.12 (S.D.N.Y. 1988) (photographic likeness of
humans not arbitrary or fanciful). The image is a photographic likeness or portrait of
an actual cat and is not a highly stylized image or a fanciful cartoon character. Cf.
Pirone 13 USPQ2d at 1801 (a portrait of a cartoon character is fanciful while a
portrait of a human being is not; “an individual’s likeness is not a consistently
represented fixed image–different photographs of the same person may be markedly
dissimilar”).33
We now consider whether the Tardar Sauce image is merely descriptive as used
in connection with the applied-for goods and services.

33 The fact that the Tardar Sauce image is not fanciful is borne out by the multitude of
photographic images in the record of Tardar Sauce which are dissimilar from the applied-for
image.
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Class 9 Goods
As to the Class 9 goods, we find the Examining Attorney’s evidence probative to
support the position that the Tardar Sauce image is merely descriptive of these goods.
As shown in the marketing materials, a significant feature of the “photo bomb” app
software is the ability to insert images of Tardar Sauce into photographs; in
connection with the weather application, a consumer may specifically download a
Tardar Sauce theme. Specifically, the applied-for mark is a significant feature or
characteristic of the goods.
Class 16 Goods
As to Applicant’s Class 16 goods, the evidence supports the Examining Attorney's
position that the Tardar Sauce image describes the subject matter of the Class 16
goods. For instance, the evidence of record shows the Tardar Sauce image used as a
significant feature of the stamps, greeting cards and calendars, all of which feature
the cat image displayed as a decorative element of the product.
Class 28 Goods
As to the Class 28 goods, we find that the Tardar Sauce image is merely
descriptive of the stuffed toy because a key feature, or characteristic of the stuffed toy
is that it portrays Tardar Sauce.34 The Tardar Sauce image used in connection with

34 In the ’812 application, in connection with an information request, Applicant stated, among
other things, that “[t]he goods are intended to be in the shape and form of the cat Grumpy
Cat in particular, with the features and characteristics of specifically Grumpy Cat …
Applicant is not going to use the Mark with anything other than goods that depict the meme
‘Grumpy Cat’ …. When looking at Applicant’s goods, consumers will know that they are
looking at Grumpy Cat and not a generic cat.” November 18, 2013 Response to Office Action,
p. 1.
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the tags or labels attached to these goods immediately conveys to the consumer
information that the stuffed toy or toy animal is a portrayal of Tardar Sauce, which
Applicant does not dispute.35
Class 41 Services
As to the Class 41 services, the evidence in the record establishes the subject
matter or content of the entertainment services includes, and indeed focuses on, the
cat identified in the mark. Thus, a significant feature of the content of the
entertainment services (non-downloadable videos) is Tardar Sauce. Purchasers
seeing the Tardar Sauce image in connection with the Class 41 services would
immediately understand that the subject matter relates to this particular cat without
the need for imagination or thought.
Thus, we find that the Tardar Sauce image is merely descriptive of the Class 9, 16
and 28 goods and the Class 41 services within the meaning of Trademark Act Section
2(e)(1).
Acquired Distinctiveness in the Alternative
In support of its alternative claim of acquired distinctiveness, Applicant has
submitted a claim of ownership of prior Registration No. 4820434 as well as asserted
evidence of acquired distinctiveness. We therefore consider whether the Tardar Sauce

35 In the ’812 application, Applicant stated “just because a depiction of Grumpy Cat in the
form of the Mark on a tag … may impart to the consumer aspects of how the toys attached to
the tag might look, this does not prevent the Mark from functioning as a trademark.” The
question here, though, is whether the Tardar Sauce image is merely descriptive, not whether
it functions as a mark. We view this statement as an implicit concession that the image on
the tag conveys information about the plush toys. June 19, 2014 Response to Office Action,
p.1.
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image has acquired distinctiveness in connection with the Class 9, 16, and 28 goods
and the Class 41 services.
A. Prior registration
In appropriate cases, prior registrations on the Principal Register of the same
mark may be accepted as prima facie evidence of acquired distinctiveness if the goods
or services in the registration(s) are sufficiently similar or related to the goods or
services in the application. Trademark Rule 2.41(a)(1), 37 C.F.R. § 2.41(a)(1); In re
Olin Corp., 124 USPQ2d 1327, 1334 (TTAB 2017). In relying on this rule, an applicant
is essentially seeking to tack the use of the registered mark to its use of the present
mark for purposes of transferring distinctiveness to the new mark. In re Brouwerij
Bosteels, 96 USPQ2d 1414, 1423 (TTAB 2010) (citation omitted). The analysis used
to determine whether Applicant’s present mark is “the same mark” as its previously
registered mark, for purposes of the rule, is the analysis used in tacking cases. Id.
Tacking is a factual question that considers whether two marks are legal equivalents,
i.e., whether the marks “create the same continuing commercial impression so that
consumers consider both as the same mark.” Hana Financial, Inc. v. Hana Bank,
Hana Fin., Inc. v. Hana Bank, 135 S. Ct. 907, 113 USPQ2d 1365, 1366-67 (2015).
Aside from the legal equivalency of the marks in the registration(s) and the
application, if the similarity or relationship between the goods or services is not self-
evident based on the respective identifications in the registration and application, the
purported similarity between the goods or services must be established through
submission of relevant evidence and an explanation. TMEP § 1212.04(c).
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Applicant owns a prior registration, Reg. No. 4820434, for the Tardar Sauce
image, as a mark, reproduced below

for the following goods:
Class 9: Protective covers and cases for cell phones,
laptops, tablet computers and media players; mouse pads;
decorative magnets, refrigerator magnets.
Class 21: Merchandise, namely, mugs, coffee mugs,
porcelain mugs, beer mugs, beer steins, travel mugs,
commuter mugs, mugs not of precious metal, coffee cups,
tea cups, coasters not of paper and not being table linen.
Class 25: Clothing, namely, t-shirts, shirts, long-sleeved
shirts, polo shirts, sweatshirts, hoodies.
Class 28: Playing cards.
Applicant argues that its prior registration “for the exact same mark” supports a
claim of distinctiveness because the goods in the prior registration are sufficiently
similar to the Class 9 and 16 goods and Class 41 services in the ’010 application and
the Class 28 goods in the ’812 application.36 In particular, Applicant argues that the

36 The registration was the result of a request to divide the ’010 application, as the Examining
Attorney withdrew the refusal as to Class 9 protective covers, mouse pads and magnets and
did not issue a refusal for Class 21 and 25 goods. January 30, 2015 Request to Divide, p. 1;
August 23, 2014 Office Action, p. 1; June 27, 2013 Office Action, p.1. Notwithstanding that
the Office strives for consistency, Applicant’s ownership of a registration for the Tardar Sauce
image on the Principal Register for these goods does not require a different result. “The PTO
is required to examine all trademark applications for compliance with each and every
eligibility requirement … even if the PTO earlier mistakenly registered a similar or identical
mark suffering the same defect.” In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632,
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Class 9 protective covers and cases, mouse pads and magnets are sufficiently similar
to its Class 9 downloadable videos and application software; its Class 21 mugs, coffee
cups, tea cups and coasters (not of paper) are sufficiently similar to the Class 16 paper
goods; its Class 25 clothing is sufficiently similar to its Class 41 entertainment
services; and its Class 28 playing cards are sufficiently similar to its Class 28 stuffed
or plush toys, action figures, dolls and toy animals. Aside from these conclusory
statements, Applicant does not explain how the goods in the prior registration are
sufficiently similar or related. Applicant also submitted copies of third-party
registrations, three for each class, as its only evidence that the goods listed in the
prior registration are related to the goods and services in the ’010 and ’812
applications and may emanate from the same source. Applicant has referenced the
likelihood of confusion case In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6
(TTAB 1988) in support.37
Although the mark in Reg. No. 4820434 is the legal equivalent of the mark in the
’010 and ’812 applications, the goods and services in the ’010 and ’812 applications
are not the same or similar, and the respective identifications in the prior registration

1635 (Fed. Cir. 2016) (existence of subsisting incontestable standard character registration
of CHURRASCOS for restaurant services on the Principal Register did not preclude finding
that stylized CHURRASCOS mark was generic for the same restaurant services). See also In
re Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221(Fed. Cir. 2009)
(“Applicant’s allegations regarding similar marks are irrelevant because each application
must be considered on its own merits.”); In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics
similar to Nett Designs' application, the PTO's allowance of such prior registrations does not
bind the Board or this court.”).
37 14 TTABVUE 3.
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and the ’010 and ’812 applications do not make the relatedness of the goods and
services self-evident. We therefore consider whether Applicant’s third-party
registrations establish that there is a relationship between the prior registration’s
goods and the ’010 and ’812 applications’ goods and services.
As to the Class 9 goods, the three third-party registrations show a variety of
diverse goods in this class. These registrations are insufficient to establish
relatedness. See In re Princeton Tectonics, Inc., 95 USPQ2d 1509, 1511 (TTAB 2010)
(the diversity of the goods identified in this registration diminishes the probative
value in establishing that any two items identified in the registration are related).
A similar problem exists with two of the third-party registrations for Class 28, owned
by the same registrant, covering a diverse variety of Class 28 goods including
artificial Christmas trees, golf clubs, athletic wrist supports, party favors, and bounce
houses. The single third-party registration that covers the Class 28 goods for both the
prior registration and pending application is insufficient evidence within the context
of the entire record to establish relatedness.
As to the Class 25 goods and Class 41 services, the third-party registrations
submitted are not probative because none of the registrations recite the Class 41
services identified in the ’010 application. Lastly, the third-party registrations that
cover the Class 16 goods in the pending application and the Class 21 goods in the
prior registration do provide some evidence of relatedness. But the respective nature
and purposes of the Class 16 goods (stamps, notepads, posters, calendars, and
greeting cards) and the Class 21 goods (mugs, cups and “coasters not of paper”) are
Serial Nos. 85838010 and 85836812
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entirely different. The Class 21 goods are used with beverages while the Class 16
goods are paper goods used to send correspondence, write notes, send greetings, for
room decoration, or to keep track of the month and day. In the absence of additional
evidence or explanation, we find the registrations are insufficient to establish
relatedness for transference of acquired distinctiveness. See TMEP 1207.01(a)(vi)
(describing types of evidence that may be included to show relatedness).
Thus, we agree with the Examining Attorney that the Class 9, 21 and 25 goods in
the prior registration are not sufficiently similar or related to the Class 9, 16 and 28
goods and the Class 41 services in the ’010 and ’812 applications to support a claim
of acquired distinctiveness based on a prior registration. To the extent Applicant
argues that the Examining Attorney did not submit evidence as to the lack of
relatedness of the goods and services, it is Applicant’s burden, not the Office’s, to
prove distinctiveness in connection with a Section 2(f) claim. See Yamaha Intern.
Corp. v. Hoshino Gakki Co., Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1006 (Fed. Cir.
1988); In re Meyer & Wenthe, Inc., 267 F.2d 945, 122 USPQ 372, 375 (CCPA 1959); In
re Rogers, 53 USPQ2d 1741, 1744 (TTAB 1999).
B. Additional Evidence of Acquired Distinctiveness
We now consider Applicant’s other evidence of acquired distinctiveness. Acquired
distinctiveness is generally understood to mean an acquired “mental association in
buyers’ minds between the alleged mark and a single source of the product.” Apollo
Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1848
(TTAB 2017) (quoting 2 McCarthy on Trademarks and Unfair Competition § 15:5 (4th
Serial Nos. 85838010 and 85836812
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ed., June 2017 Update)). The amount and character of evidence required to establish
acquired distinctiveness depends on the facts of each case. Roux Labs., Inc. v. Clairol
Inc., 427 F.2d 823, 166 USPQ 34, 39 (CCPA 1970). Acquired distinctiveness may be
shown by direct and/or circumstantial evidence. Direct evidence includes actual
testimony, declarations or surveys of consumers as to their state of mind.
Circumstantial evidence is evidence from which consumer association might be
inferred, such as years of use, extensive amount of sales and advertising, and any
similar evidence showing wide exposure of the mark to consumers. In re Ennco, 56
USPQ2d 1279, 1283 (TTAB 2000). Evidence of acquired distinctiveness must “relate
to the specific [goods or] services set forth in the application, and the specific mark
for which registration is sought.” In re K-T Zoe Furniture Inc., 16 F.3d 390, 29
USPQ2d 1787, 1789 (Fed. Cir. 1994).
Applicant’s evidence of acquired distinctiveness includes statements of counsel,38
as well as declarations39 (dated January 20, 2015 and February 23, 2015) from Susan

38 ’010 application, December 26, 2013 Response to Office Action, p.1; ’010 application, July
22, 2014 Response to Office Action, p. 1; ’010 application, February 23, 2015 Request for
Reconsideration, p. 7; ’812 application, January 22, 2015 Request for Reconsideration, p. 6;
’812 application, June 19, 2014 Response to Office Action, p.1; ’812 application, November 18,
2013 Response to Office Action, p. 1. Neither an affidavit nor declaration was submitted from
Applicant to support counsel’s statements regarding acquired distinctiveness of the Tardar
Sauce image. It is preferable for an applicant to submit information of this nature in a
declaration or affidavit signed by an officer of Applicant. We also have no foundational
information about counsel’s investigation of, or understanding of, Applicant's business that
would put her in a position to make statements regarding Applicant’s marketing and
promotional activities. We consider only those statements that are supported by documentary
evidence or otherwise corroborated in the record. In re Highlights for Children, Inc. 118
USPQ2d 1268, 1276 (TTAB 2016) (citation omitted).
39 Applicant submitted two declarations with each application. 19 TTABVUE 21; 4 TTABVUE
24-30.
Serial Nos. 85838010 and 85836812
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O’Halloran, Communications Manager of Ganz, a licensee of Applicant for computer
software applications, greeting cards, note cards and plush toys;40 the declaration
(dated February 20, 2015) of Lori Conley, Senior Director, Marketing Services of
ACCO Brands USA LLC, a licensee of Applicant for boxed and miniature decorative
wall calendars;41 and the declaration (dated January 21, 2015) of Bruce Scott Raiffe,
President of Gund Division of Enesco, for plush toys.42
In support of its Section 2(f) claim, Applicant argues that Tardar Sauce (a/k/a
Grumpy Cat) is an “instant Internet celebrity” and has “garnered considerable fame,
media attention, accolades, and merchandise licensing arrangements.”43 In
particular, Applicant has argued that:
through the Internet (where the meme of Grumpy Cat
originated), “…a new trademark may achieve wide usage
and ‘secondary meaning’ within a matter of days or weeks,
compared to the many years required in the days of more
leisurely advertising.” (quoting 2 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition at §§
15:54 and 15:56 (4th ed.)) Indeed, “…the Internet has made
it easier than ever to reach millions of people around the
globe in a matter of seconds….” Id. Accordingly, the quick
viral rise of the Mark on the Internet and its resulting use
in advertising and on goods and services … should be
enough length of use to lend towards a showing of acquired
distinctiveness.44

40 ’010 application, February 23, 2015 Request for Reconsideration, pp. 20-23; ’812
application, January 22, 2015 Request for Reconsideration, pp. 22-25.
41 ’010 application, February 23, 2015 Request for Reconsideration, p. 24.
42 ’812 application, January 22, 2015 Request for Reconsideration, pp. 19-21.
43 ’010 application, December 26, 2013 Response to Office Action, p.1; ’812 application,
November 18, 2013 Response to Office Action, p.1.
44 ’010 application, July 22, 2014 Response to Office Action, p.1; ’812 application, June 19,
2014 Response to Office Action, p. 1.
Serial Nos. 85838010 and 85836812
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1. Evidence Corroborating Statements of Counsel in Connection with
Goods
As stated, evidence of acquired distinctiveness must relate to the specific mark
and the goods and services for which registration is sought and not relate to
recognition of Tardar Sauce herself, as an “Internet celebrity.” In re K-T Zoe
Furniture, 29 USPQ2d at 1789. See also In re Franklin County Historical Society, 104
USPQ2d 1085, 1093 (TTAB 2012) (“[A]lthough applicant’s museum services may
attract many visitors and indeed it may have national recognition with multiple
awards, it has not established acquired distinctiveness specific to the term “CENTER
OF SCIENCE AND INDUSTRY.”). Applicant has submitted the following evidence
through counsel regarding acquired distinctiveness:45
Tardar Sauce is the subject of a book called “Grumpy Cat:
A Grumpy Book” that has been translated into other
languages.46

45 ’812 application, November 18, 2013 Response to Office Action, p.1; ’010 application,
December 26, 2013 Response to Office Action, p.1; ’812 application, January 22, 2015 Request
for Reconsideration, p.1; ’010 application, February 23, 2015 Request for Reconsideration,
p.1. Some of the news stories and articles appear to include the original Internet meme image
. ’010 application, December 26, 2013 Response to Office Action, pp. 18, 39; ’010
application, February 23, 2015 Request for Reconsideration, pp. 10-15; ’812 application,
November 18, 2013 Response to Office Action, p. 18; ’812 application, January 22, 2015
Request for Reconsideration, pp. 9-14.

46 The book is described as teaching “the fine art of grumpiness” and features “brand new as
well as classic photos, and including grump-inspiring activities and games.” ’010 application,
December 26, 2013 Response to Office Action, pp. 8-13. The cover of the book contains the
Tardar Sauce image. Nonetheless, we conclude that consumers would view the cover image
as nothing more than a cover photograph. Cf. In re Gibson Guitar Corp., 61 USPQ2d 1948,
1953 (TTAB 2001) (book did not support acquired distinctiveness of guitar body; readers
unlikely to regard round shouldered shape unique or to serve source identifying function). In
Serial Nos. 85838010 and 85836812
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Tardar Sauce is the subject of a movie deal with Broken
Road Productions. A story about the movie deal made the
front page of the Wall Street Journal with Tardar Sauce
portrayed as a stipple drawing.47
Tardar Sauce was on the cover of New Yorker magazine
under the heading “Boom Brands,” was the subject of a
news story in USA Today, and appeared in People
Magazine.48
Tardar Sauce has appeared on various news and television
shows including The Today Show, Good Morning America,
Anderson Cooper Live, The Soup, CBS Evening News and
TMZ.49
Tardar Sauce received press for becoming a “spokescat” for
Nestle Purina PetCare’s Friskies brand.50
Tardar Sauce won the 2012 meme of the year (Webby
awards), was awarded a Friskies Lifetime Achievement
award, was named most influential cat of 2012 by MSNBC,
most important Meme of 2012 by Mashable, and 2013
Queen of the South at the South West Interactive
conference.51

the ’812 application, Applicant argued in its January 22, 2015 Request for Reconsideration,
p. 6 that the book (as well as Applicant’s licensed use on cat food) should be considered related
to the Class 28 goods because the book (and the cat food) is displayed with the other goods at
trade shows to show what goods Applicant has licensed and marketed together. However, we
find the book image does not support the acquired distinctiveness of the applied-for goods
and services as the average consumer would not likely regard the book and the Class 28 goods
to be linked. Cf. Stuart Spector Designs Ltd. v. Fender Musical Instruments Corp., 94
USPQ2d 1549, 1575 (TTAB 2009) (examples of exposure through third-parties’ permitted or
licensed use not supportive of acquired distinctiveness as it did not direct the attention of
potential consumers to identify the proposed mark as an indication of commercial source).
47 ’010 application, December 26, 2013 Response to Office Action, p. 14.
48 ’010 application, December 26, 2013 Response to Office Action, pp. 15, 30.
49 ’010 application, December 26, 2013 Response to Office Action, pp. 23-28.
50 ’010 application, December 26, 2013 Response to Office Action, p. 18.
51 ’010 application, December 26, 2013 Response to Office Action, pp. 19-22, 31.
Serial Nos. 85838010 and 85836812
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Tardar Sauce appeared as part of an advertising campaign
for Disneyland.52
While fame of a mark is relevant to secondary meaning, In re Industrie Pirelli
Societa Per Azioni, 9 USPQ2d 1564, 1565 (TTAB 1988), Applicant conflates
arguments about the fame of Tardar Sauce herself with the fame of the Tardar Sauce
image as a trademark.53 See e.g., In re Franklin County Historical Society, 104
USPQ2d at 1089 (although museum had achieved national recognition, it was unable
to show acquired distinctiveness of “CENTER OF SCIENCE AND INDUSTRY”).
The foregoing evidence, while perhaps establishing recognition of Tardar Sauce
herself as the subject of an Internet meme and an “Internet celebrity,” (or cat-
lebrity)54 does not establish recognition by consumers of the Tardar Sauce image as
a trademark in connection with the applied-for goods and services. The examples of
media coverage provided by Applicant are limited in number and describe the various
activities of Tardar Sauce; they do not discuss the applied-for goods and services or
the Tardar Sauce image. Likewise, Tardar Sauce’s personal appearances on television
and at other venues appear unrelated to the goods and services in the involved
applications and do not direct the attention of consumers or potential consumers to
them. See Stuart Spector Designs Ltd. v. Fender Musical Instruments Corp., 94
USPQ2d 1549, 1575 (TTAB 2009) (finding examples of exposure through third-

52 ’010 application, December 26, 2013 Response to Office Action, pp. 16-17.
53 See for example, ’812 application, November 18, 2013 Response to Office Action, p.1 in
which Applicant stated “[a]s indicated by the above evidence, Grumpy Cat’s image is famous.
Thus, the Mark (as indicative of Grumpy Cat) is therefore famous itself.”
54 Internet cat celebrity. ’010 application, December 26, 2013 Response to Office Action, p. 19.
Serial Nos. 85838010 and 85836812
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parties’ permitted or licensed use in various media, including television, live
performances, movies, charitable events and merchandising did not direct the
attention of potential consumers to identify the outline of the guitar body as an
indication of commercial source, and not supportive of acquired distinctiveness of
guitar body). Tardar Sauce’s receipt of awards also does not tend to show the public
associates the Tardar Sauce image with Applicant’s goods and services as the awards
relate to her status as an Internet meme or Internet cat celebrity and are not
recognition directed towards Applicant’s goods or services. See e.g., We Media Inc. v.
General Electric Co., 218 F. Supp. 2d 463, 68 USPQ2d 1108 1113-1114 (S.D.N.Y.
2002), (evidence of awards for website and magazine show business served “laudable
goal” and the “product was well respected within its channels of trade” but did not
tend to show the public recognized WEM’s marks to signify its products and services),
aff’d 94 F.App’x. 29 (2d. Cir. 2004); In re Franklin County Historical Soc’y, 104
USPQ2d at 1093 (fact that museum was award-winning insufficient for
distinctiveness claim).
Applicant has provided no unsolicited media coverage recognizing or referring to
the Tardar Sauce image as pointing to Applicant or one particular anonymous source
in connection with the ’010 and ’812 applications’ goods and services.55 Therefore, the

55 4 TTABVUE 14-19. ’010 application, December 26, 2013 Response to Office Action, pp. 14,
16-19, 29, 31. Two of the webpages provided are in foreign languages. Websites located
outside the United States may have probative value depending on the circumstances,
including whether the consuming public in the United States is likely to have been exposed
to the foreign website. In re Florists’ Transworld Delivery Inc., 106 USPQ2d 1784, 1786
(TTAB 2013). In this case, we do not know the extent of exposure to the public of these
websites, but in any event, these websites are not probative as the stories contain the meme
Serial Nos. 85838010 and 85836812
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unsolicited media coverage introduced by Applicant fails to show widespread
recognition by the relevant public of the Tardar Sauce image as a source-indicator for
the applied-for goods and services.
2. Social Media and Ganz website use
Applicant also points to its use of social media platforms and website evidence,56
to support its claim of acquired distinctiveness. Although Applicant provided
documentary evidence in connection with the ’010 application to corroborate counsel’s
statements, it did not submit evidence in connection with the ’812 application, (Class
28 goods). For that application, Applicant provided website links to the Facebook,
Twitter, Instagram, YouTube and Tumblr pages. This is insufficient to make the
webpages themselves of record.57 In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB
2013) (providing hyperlinks insufficient to make evidence of record). Therefore, we

image, and not the mark, and do not appear to reference the Tardar Sauce image or the
applied-for goods.
56 The website evidence Applicant provided for the Class 9 and 16 goods (’010 application)
and Class 28 goods (’812 application) consists of webpages from licensee Ganz whose website
includes Tardar Sauce web pages. ’010 application, July 22, 2014 Response to Office Action,
pp. 48, 50, 51; ’010 application, February 23, 2015 Request for Reconsideration, p. 22
O’Halloran declaration ¶ 12; ’812 application, January 22 2015 request for Reconsideration,
pp. 40-42; ’812 application, June 19, 2014 Response to Office action, pp. 50, 55, 57-59; ’812
application, January 22, 2015 Request for Reconsideration, p. 24 O’Halloran declaration ¶
12.
57 ’812 application, November, 18 2013 Response to Office Action, p. 1. The Examining
Attorney did not advise Applicant regarding this deficiency in the December 19, 2013 Office
Action. But even if we consider the Examining Attorney to have waived any objection to these
website links, only the website address itself would be of record. In re HSB Solomon
Associates LLC, 102 USPQ2d 1269, 1273-74 (TTAB 2012) (even if Examining Attorney was
considered to have waived objection to website address, only the website address itself would
be of record as “the Board would not utilize the address to access the site and consider
whatever content appeared.”).
Serial Nos. 85838010 and 85836812
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consider the social media evidence only in connection with the Class 9, 16 and 41
goods and services in the ’010 application.
Following are the social media platforms that Applicant’s counsel has identified
with accompanying page images:58
The Twitter page (twitter.com) of Tardar Sauce, has over
125,000 followers.
The official Instagram page (instagram.com) for Tardar
Sauce (managed by licensee Ganz) has more than 130,000
followers.
The official Facebook page (facebook.com) for Tardar Sauce
(managed by licensee Ganz) has over 2.5 million likes.59 A
later Facebook page exhibit provided by Applicant shows
7,498,419 likes.60
The official YouTube channel (youtube.com) for Tardar
Sauce has over 145,000 subscribers and over 24 million
views.61

58 ’010 application, December 26, 2013 Response to Office Action, pp. 1, 32, 33, 34 and 36;
’010 application, February 23, 2015 Request for Reconsideration, p. 26. The O’Halloran
declarations also testify as to Applicant’s Pinterest account but no exhibit has been provided
to show use. ’010 application, February 23, 2015 Request for Reconsideration, p. 22
O’Halloran declaration, ¶ 12; ’812 application, January 22, 2015 Request for Reconsideration,
p. 24 O’Halloran declaration ¶ 12.
59 Counsel also made an unverified and uncorroborated statement about Applicant’s “reach”
of this Facebook page.
60 ’010 application, February 23, 2015 Request for Reconsideration, p. 7, 26.
61 ’010 application December 26, 2013 Response to Office Action, p. 34.
Serial Nos. 85838010 and 85836812
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Twitter:

62
63

62 Id. at 32 (Twitter).
63 Id.
Serial Nos. 85838010 and 85836812
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Facebook:
64

65

64 Id. at 33 (Facebook).
65 ’010 application, February 23, 2015 Request for Reconsideration, p. 26. (Facebook).
Serial Nos. 85838010 and 85836812
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Instagram:
66
YouTube:
67
Applicant has not explained how it has used these platforms to promote the
Tardar Sauce image in connection with the ’010 application’s applied-for goods and
services rather than promoting Tardar Sauce herself. Cf. In re Semel, 189 USPQ 285,
287 (TTAB 1975) (“in evaluating the significance of advertising figures . . . it is
necessary to consider not only the extent of advertising but also whether the use of

66 ’010 application, December 26, 2013 Response to Office Action, p. 36 (Instagram).
67 Id. at 34. (YouTube).
Serial Nos. 85838010 and 85836812
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the designation [or design] therein has been of such nature as to create in the minds
of the purchasing public an association of the designation [or design] with the user
and/or his goods”). The Facebook and Instagram page exhibits do not show use of the
Tardar Sauce image and are not probative.68 See e.g, Nazon v. Ghiorse, 119 USPQ2d
1178, 1184 n.11 (TTAB 2016) (use of mark’s effect on consumers could not be
determined because there was no documentary evidence submitted showing how the
mark was used on two additional Facebook pages, nor was there any evidence to
establish use of the term as a mark). The provided Twitter page exhibit has limited
probative value for the same reasons. Although the profile photo on the page is closer
to the applied-for image, it is not the same because it is in black and white, includes
the words “Grumpy Cat,” and includes background matter. See In re Mogen David
Wine Corp., 372 F.2d 539, 152 USPQ 593, 595 (CCPA 1967) (where advertising
depicting the bottle design sought to be registered always featured the word mark
MOGEN DAVID, such evidence failed to prove acquired distinctiveness in the design
itself); In re Franklin County Historical Soc’y, 104 USPQ2d at 1093 (finding examples
of distinctiveness insufficient as none shows use of the proposed mark, “CENTER OF
SCIENCE AND INDUSTRY,” without the acronym COSI). The YouTube page exhibit
also has a profile photo that is somewhat similar to the applied-for image, but it more
closely resembles the meme image as it includes someone’s hand and background
matter. Aside from the displayed YouTube image being different than the Tardar

68 ’010 application, December 26, 2013 Response to Office Action, pp. 33, 36; ’010 application,
February 23, 2015 Request for Reconsideration, p. 26.
Serial Nos. 85838010 and 85836812
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Sauce image, this use would be viewed as nothing more than a profile photo
resembling the meme image. Cf. Nazon v. Ghiorse, 119 USPQ2d at 1184 (discounting
asserted use of mark on Twitter page, noting that it appears in the nature of a Twitter
handle rather than as a trademark; no evidence to establish use of term as a mark).
The Facebook exhibit shows 7,498,419 likes,69 the Instagram exhibit shows 131,618
followers, and the Twitter exhibit shows 125,134 followers, but these figures alone,
without any association with the Tardar Sauce image, do not establish an association
between the Tardar Sauce image and Applicant’s Class 9, and 16 goods or Class 41
services.70 The fact that Applicant’s YouTube channel exhibit shows over 145,000
subscribers and over 24 million views, while perhaps demonstrating the popularity
of Applicant’s videos, does not reveal the extent, if any, to which consumers perceive
the Tardar Sauce image as a source indicator of the videos, for Applicant’s Class 41
services. Cf. Braun Inc. v. Dynamics Corp., 975 F.2d 815, 24 USPQ2d 1121, 1133
(Fed. Cir. 1992) (“[L]arge consumer demand for Braun’s blender does not permit a

69 The Facebook page submitted with the ’010 application, December 26, 2013 Response to
Office Action, p. 32, shows 2,542,631 likes while the Facebook page submitted with the ’010
application, February 23, 2015 Request for Reconsideration, p. 26, shows 7,498,419 likes. The
growth in “likes” without the association of the Tardar Sauce image is not probative.
70 ’010 application, December 26, 2013 Response to Office Action, p. 32. The exhibit provided
does not display any actual tweets on the page but displays the figure of 1320 tweets. As no
tweets are displayed, it is not clear that any of the 1320 tweets relate to the applied-for goods
and services. There also is no indication what impact the tweets have on the purchasing
public (e.g., the potential reach of the tweets and whether the followers see the tweets i.e.,
engagement, engagement rate and impressions, and retweets) as no Twitter analytics have
been provided. Caroline Mrohs, How Many Likes Did It Get? Using Social Media Metrics to
Establish Trademark Rights, 25 Cath. U. J. L. & Tech 154, 164 (2017). (“When account
owners can use metrics to track how the public and their relevant consumer base receive
their social media, there is more assurance that their followers are making a connection
between the content produced by the accounts (including trademarks) and who the account
owners are (the source).”)
Serial Nos. 85838010 and 85836812
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finding the public necessarily associated the blender design with Braun.”); 555-
1212.com Inc. v. Commc’n House Int’l Inc., 157 F. Supp.2d 1084, 59 USPQ2d 1453,
1459 (N.D. Cal. 2001) (“The Media Metrix report only provides that a large number
of Internet users visit plaintiff's web site [555-1212.com]. It does not provide any
reasonable inference to conclude that these users perceive plaintiff’s domain name as
a brand name instead of a merely descriptive Internet address”).
Turning to licensee Ganz’s manner of use of the Tardar Sauce image on the Ganz
website, shown below, the only webpage provided showing the image generally
references “cool Grumpy Cat gear” but does not specifically identify the Class 9, 16 or
28 goods.71 While there is one web page that shows a window cling,72 which may be
covered under the Class 28 goods, the Tardar Sauce image is not displayed on this
webpage and no tag or label with the image is shown on the good.73

71 July 22, 2014 Response to Office Action ’010 application, pp. 48, 50, 51; ’812 application,
January 22, 2015 Request for Reconsideration, pp. 40-42; ’812 application, June 19, 2014
Response to Office action, p. 50.
72 A window cling is a stuffed toy with suction cups that allows attachment to a window.
’812 application, January 22, 2015 Request for Reconsideration,
p. 40.
73 Id.
Serial Nos. 85838010 and 85836812
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Ganz Website: .74
The other related Ganz webpages include photographs of store displays of Applicant’s
other goods (stationary, sticky pads, and coasters) and not the applied-for Class 9, 16
and 28 goods.75 Applicant’s own website grumpycats.com, shown below, does show
use of the image in connection with the Class 41 services.76
Applicant’s website:
. However we have no information
related to this website from which we could infer consumer exposure. See In re

74 ’812 application, January 22 2015 Request for Reconsideration, p. 41; ’812 application, June
19, 2014 Response to Office Action, p. 50; ’010 application, July 22, 2014 Response to Office
Action, p. 48.
75 We further note that in many of these displays, the Tardar Sauce image looks more like
the content of the product rather than the mark for the product. For example, the Tardar
Sauce image is displayed on the face of the coasters and sticky pads and predominates,
appearing more as a decorative picture than as a trademark. ’010 application, July 22, 2014
Response to Office Action, pp. 45-46, 49.
76 Specimen ’010 application p. 9; ’010 application, July 22, 2014 Response to Office Action,
p. 11.
Serial Nos. 85838010 and 85836812
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Brouwerij Bosteels, 96 USPQ2d at 1424 (although mark displayed on website, no
information with respect to the number of visitors to the website to afford a
determination of whether a significant number of people in the United States have
even viewed the alleged mark at the website). But even if we had this information as
to unique visitors, it may not necessarily support a reasonable inference of acquired
distinctiveness as to those particular services given that the website is not devoted
strictly to the offering of videos. Cf. DeGidio v. West Grp., 355 F.3d 506, 69 USPQ2d
1538, 1543 (6th Cir. 2004) (“[m]ere use of a website does not equal identification with
a particular provider”). We find the social media and website evidence does not tend
to support a finding of acquired distinctiveness of the Tardar Sauce image either
because the information is insufficient to provide such an inference or these platforms
do not direct the attention of consumers or potential consumers to the applied-for
mark and goods or services.
3. Declarations from licensees.
The following summarizes the declaration testimony of Applicant’s licensees for
plush toys, calendars, software application, notepads and greeting cards:
a. Calendars
Lori Conley, Senior Director, Marketing Services for ACCO Brands USA, LLC
(“ACCO”) states that ACCO has licensed the Tardar Sauce image in connection with
boxed and miniature-wall decorative calendars that bear the image, that ACCO uses
the image in marketing the goods and affixes the image to packaging and tags, and
Serial Nos. 85838010 and 85836812
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that she is making the declaration in the belief that the image is distinctive.77 The
declaration also states that the image’s fame caused ACCO to enter into a licensing
agreement for the products with Applicant, and that its success in selling the
products “may show that the purchasing public views the Mark as an indicator of
origin for Grumpy Cat.”78
Ms. Conley’s testimony lacks specificity as it provides no information (e.g.,
advertising and sales figures of calendars) from which we could infer consumer
exposure to the image. See In re Soccer Sport Supply Co., 507 F.2d 1400, 184 USPQ
345, 348 (CCPA 1975) (evidence fails to disclose information from which the number
of people exposed to the design could be estimated—such as circulation of the
publications in which the advertisements appear, advertising expenditures, number
of advertisements published, volume of sales of the soccer balls, and the like). Ms.
Conley’s statement that ACCO’s success in selling the products “may show” that the
purchasing public views the image as a source indicator is equivocal, speculative and
conclusory. In any event, the Board will not substitute a witness’s opinion for our
evaluation of the facts. Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d
1399, 1402 (TTAB 2010). ACCO’s business motivations for entering into a licensing
arrangement with Applicant do not support an inference of acquired distinctiveness.

77 4 TTABVUE 28. ’010 application, February 23, 2015 Request for Reconsideration, p. 24,
Conley declaration, ¶¶ 1, 3, 5, 6.
78 4 TTABVUE 28. ’010 application, February 23, 2015 Request for Reconsideration, p. 24,
Conley declaration, ¶¶ 4, 7.
Serial Nos. 85838010 and 85836812
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Ms. Conley’s declaration is insufficient to support a finding of acquired
distinctiveness of the image in connection with calendars.
b. Ganz - software application for mobile phones, greeting cards,
and note cards, and plush toys

Susan O’Halloran, Communications Manager of Ganz (“Ganz”) states that “the
unique recognition power and fame of Grumpy Cat” caused Ganz to enter into
licensing agreements for use of the image in connection with websites and certain
products, and that the image is “inextricably connected to the distinctive and famous
Grumpy Cat” who the public immediately “identifies as being Grumpy Cat” rather
than an ordinary cat.79 More than 16,000 stock keeping units (“skus”) for greeting
cards and note cards using the image were manufactured for sale in the United
States.80 Ganz’s software app. using the Tardar Sauce image has more than 70,000
users. In describing the manner of use of the image, O’Halloran explains that it is
affixed to signage and displays in connection with the licensed goods (software apps.,
notecards, and greeting cards). The image also is used in connection with a wide range

79 ’010 application, February 23, 2015 Request for Reconsideration, p. 21 O’Halloran
declaration ¶¶ 6, 7, 9; ’812 application, January 22, 2015 Response to Office Action, p. 23
O’Halloran declaration ¶¶ 5, 6, 9.
80 ’010 application, February 23, 2015 Request for Reconsideration, p. 21 O’Halloran
declaration, ¶ 10; ’812 application, January, 22, 2015 Response to Office Action, p. 23
O’Halloran declaration ¶ 10 Although Applicant has characterized this testimony as
referencing sales of goods, the declaration merely states that numerous skus were
manufactured and that the goods for these skus are being sold in the United States.
Serial Nos. 85838010 and 85836812
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of marketing materials, handouts, trade advertising, showroom fixtures,81 on Ganz’s
corporate website, and on social media (Facebook, Instagram, and Pinterest), as
managed by Ganz.82 Ganz spent one and a half years in marketing, design, catalog
production, product development and sales efforts in developing and promoting the
“Grumpy Cat Products.”83 In O’Halloran’s opinion, the mark is “quite well established
throughout the United States in connection with Grumpy Cat products” and
consumers purchase the products because they associate the mark as denoting
authentic Grumpy Cat Limited merchandise.84 The declaration also states that
Applicant itself supports the Tardar Sauce image through social media, other

81 The Tardar Sauce image has been displayed on trade show booths in connection with
stuffed toys. See e.g., ’812 application, June 19, 2014 Response to Office Action, p. 49.

82 ’010 application; February 23, 2015 Request for Reconsideration, p. 22, O’Halloran
declaration, ¶ 11. Apart from the declaration, webpages have been provided that corroborate
O’Halloran’s statements regarding Facebook. ’010 application, December 26, 2013 Office
Action p. 33; ’010 application, February 23, 2015 Request for Reconsideration, p. 26.
83 ’010 application, February 23, 2015 Request for Reconsideration, p. 22, O’Halloran
declaration ¶ 16; ’812 application, January, 22, 2015 Response to Office Action, p. 24
O’Halloran declaration ¶ 16.
84 ’010 application, February 23, 2015 Request for Reconsideration, p. 22, O’Halloran
declaration, ¶¶ 13, 14; ’812 application, January, 22, 2015 Response to Office Action, p. 24
O’Halloran declaration ¶ 12.
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merchandising, and Tardar Sauce personal appearances.85 The January 20, 2015
O’Halloran declaration relating to plush toys repeats almost all of the statements
made in the February 23, 2015 declaration, but excludes information related to the
Class 9 and 16 goods. The declaration indicates that the manner of use for the plush
toys is labels and tags, and 100,000 pieces of 15 skus of plush toys were offered for
sale by Ganz.86
First, Ganz’s entering into a licensing agreement with Applicant due to the alleged
“fame” of Tardar Sauce does not reflect evidence of distinctiveness of the image as a
trademark but an attempt to capitalize on Tardar Sauce’s popularity for commercial
use. Second, we have already addressed Applicant’s social media efforts, (both
managed and not managed by Ganz) and the Ganz website, above. Ms. O’Halloran’s
general reference to Applicant’s own efforts at merchandising and personal
appearances lack sufficient specifics to provide support for a claim of acquired
distinctiveness of the image; we discussed above that the personal appearances
identified by applicant in the record are unrelated to the mark and the applied-for
goods.
Third, Ganz’s one and a half years spent in product development, catalog design
and catalog production in connection with the Class 9, 16 and 28 goods relate to the
development and production of the goods themselves, rather than efforts made in

85 ’010 application, February 23, 2015 Request for Reconsideration, p. 22 O’Halloran
declaration ¶ 17; ’812 application, January 22, 2015 Request for Reconsideration, p. 24
O’Halloran declaration ¶ 17.
86 ’812 application, January, 22, 2015 Response to Office Action, p.23 O’Halloran declaration
¶ 10.
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connection with establishing acquired distinctiveness with the consuming public.
Ganz’s promotional efforts with respect to the Tardar Sauce image are largely in
connection with industry trade shows, trade magazines and trade catalogs but Ms.
O’Halloran’s statements lack key information such as trade show attendance at its
booth and circulation figures for the trade magazine and trade catalogs to support a
claim of distinctiveness. See Apollo Med., 123 USPQ2d at 1856 (Board found
promotional efforts insufficient to support distinctiveness, noting that there was no
specific information regarding trade show visitors and trade publication circulation).
Although Ms. O’Halloran provided information as to the number of skus
manufactured for distribution of the goods, we have no information related to the
number of units sold or sales volume from which we could infer distinctiveness. See
In re Soccer Sport Supply, 184 USPQ at 348 (evidence fails to disclose information
from which the number of people exposed to the design could be estimated—such as
volume of sales of the soccer balls). As to the software application, while figures for
the number of users (70,000) has been provided, it has limited probative value
because this information lacks a meaningful context e.g., comparison with
competitive products and market share. That is, it tells us very little about whether
consumers of Applicant’s software applications have come to recognize the Tardar
Sauce image as a source indicator. We conclude that the O’Halloran declarations are
not sufficiently probative to support a claim of distinctiveness.
Serial Nos. 85838010 and 85836812
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c. Gund – Plush Toys
Bruce Scott Raiffe, President of the Gund division of Enesco LLC (“Gund”), states
that Tardar Sauce is “a famous feline,” “beloved meme,” “widely-famous,” and her
fame caused Gund to enter into a licensing agreement with Applicant.87 Gund created
20 skus of plush toy products and spent in excess of $250,000 for development of the
plush toys and for related advertising using the Tardar Sauce image.88 The image is
affixed to packaging and tags.89 According to Raiffe, the plush toy products are “an
inarguable success” and “bona fide hits” generating $5 million in sales.90 Raiffe also
states that the owner of Tardar Sauce engages in merchandising, licensing, and
personal appearances using the mark but does not provide any specific details.91
As stated with regard to the other licensees, Gund’s entering into a licensing
agreement with Applicant due to the alleged “fame” of Tardar Sauce, is not evidence

87 ’812 application, January 22, 2015 Request for Reconsideration, p. 20, Raiffe declaration
¶¶ 4-5.
88 ’812 Application, January 22, 2015 Request for Reconsideration, p. 20 Raiffe declaration
¶¶ 5, 9.
89 ’812 application, January 22, 2015 Request for Reconsideration, p. 21 Raiffe declaration ¶
19. See ’812 application, January 22, 2015 Response to Office Action p. 1, specimen; ’812
application, November 18, 2013 Response to Office Action, p. 22.
90 ’812 application, January 22, 2015 Request for Reconsideration, p. 20 Raiffe declaration ¶
12.
91 ’812 application, January 22, 2015 Request for Reconsideration, p. 20 Raiffe declaration ¶
11. In Raiffe’s opinion, the success in marketing and selling the products shows the mark is
an indicator of origin. ’812 application, January 22, 2015 Request for Reconsideration, p. 21
Raiffe declaration ¶ 22. But success in marketing does not necessarily permit a finding that
the Tardar Sauce image is a source indicator. See Braun, 24 USPQ2d at 1133 (high consumer
demand for blender “does not permit a finding public necessarily associated the blender
design” with a single source). Raiffe also states that consumers associate the Tardar Sauce
image with Applicant. ’812 application, January 22, 2015 Request for Reconsideration, p. 20
Raiffe declaration ¶ 14. As stated, the ultimate conclusion is left to the fact finder, not witness
opinion.
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of distinctiveness, but an attempt to capitalize on Tardar Sauce’s popularity for
commercial use. Raiffe’s testimony as to Applicant’s own efforts to support the mark
(i.e., licensing, merchandising, and Tardar Sauce personal appearances) lack
specificity.92 The Raiffe declaration also lacks specific information about the amount
of advertising expenditures because the figure provided does not distinguish between
advertising and development of the product. The $5 million sales figure for the plush
toys is substantial, and Mr. Raiffe testified that the sales establish that the stuffed
toys are “bona fide hits.” However, we find that the $5 million sales volume, while
demonstrating commercial success for the plush toy, does not demonstrate that
purchasers view the Tardar Sauce image as an indicator of source. See Braun, 24
USPQ2d at 1133 (high consumer demand for blender “does not permit a finding the
public necessarily associated the blender design” with single source); In re Bongrain

92 There is one example in the record of a personal appearance by Tardar Sauce in connection
with the Gund products . ’812 application, January 22, 2015 Request for
Reconsideration, p. 44. But a greater number of personal appearances would be required to
support a distinctiveness claim. See Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema,
Ltd., et al., 467 F. Supp. 366, 201 USPQ 740, 744-45 (S.D.N.Y. 1979), (distinctiveness of
Dallas Cowboy cheerleader uniform based in part on 90 dance performances and personal
appearances (150-200 per year) over a period of seven years), aff’d, 604 F.2d 200, 203 USPQ
161 (2d Cir. 1979). The previously mentioned Tardar Sauce personal appearances on
television, at conferences, and at Disneyland appear unrelated to the Class 28 goods. Cf.
Stuart Spector Designs, 94 USPQ2d at 1549 (exposure of proposed mark through third-
parties’ permitted or licensed use in various media, including television, live performances,
charitable events not supportive of acquired distinctiveness because these uses did not direct
the attention of potential consumers to identify the proposed mark as an indication of
commercial source).

Serial Nos. 85838010 and 85836812
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Int’l (American) Corp., 894 F.2d 1316, 1318, 13 USPQ2d 1727, 1729 (Fed. Cir. 1990)
(growth in sales may be indicative of popularity of product itself rather than
recognition as denoting origin). We conclude that the Raiffe declaration is not
sufficiently probative to support acquired distinctiveness of the Class 28 toys.
For the reasons discussed and considering the evidence in the record as a whole,
we find that Applicant has not demonstrated acquired distinctiveness of the Tardar
Sauce image in connection with its Class 9, 16 or 28 goods or the Class 41 services.
Amendment to Supplemental Register
Applicant has stated in its requests for reconsideration, appeal briefs and reply
briefs that it “is reserving its right to request an alternative amendment to seek
registration on the Supplemental Register in the event the Board affirms both of such
refusals.”93
However, Applicant’s statement of an intention to amend to the Supplemental
Register at a later date does not secure that right. In re Integrated Embedded, 120
USPQ2d 1504, 1511, (TTAB 2016). “Our prior precedents are clear that once the
Board has rendered a final decision, a request to amend to the Supplemental Register
is not possible.” Id. at 1512. See also Trademark Rule 2.142(g), 37 C.F.R. § 2.142(g),

93 ’812 application, January 22, 2015 Request for Reconsideration, p.1; ’010 application,
February 23, 2015 Request for Reconsideration, p. 1; 19 TTABVUE 23; 22 TTABVUE 9.
During prosecution, the Examining Attorney advised Applicant multiple times of the option
of amending to the Supplemental Register; however, Applicant did not amend the ’010 and
’812 applications to seek, in the alternative, registration on the Supplemental Register. 21
TTABVUE 4, 7, 19, nn. 6, 7, 12, 79. Although in its reply brief Applicant characterizes its
requests to amend to the Supplemental Register as an alternative amendment, Applicant’s
filings merely indicate that it is “reserving its right to request an alternative amendment,”
in the future. 22 TTABVUE 9.
Serial Nos. 85838010 and 85836812
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(the rule provides for reopening after appeal only for purposes of a disclaimer). In
view of the foregoing, to the extent Applicant seeks leave to file a request to amend
to the Supplemental Register, the request is denied as untimely.

Decision: The Section 2(e)(1) refusal to register Applicant’s mark is affirmed with
respect to Classes 9, 16 and 41 in Application Serial No. 85838010 and with respect
to Class 28 in Application Serial No. 85836812. The refusal to register Applicant’s
mark based on the failure to prove acquired distinctiveness is affirmed with respect
to Classes 9, 16 and 41 in Application Serial No. 85838010 and Class 28 in Application
Serial No. 85836812.