Jesse James

Trademark Trial and Appeal Board

Jun 8, 2006

No. 76561134 (T.T.A.B. Jun. 8, 2006)

Mailed:
8 June 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Jesse James
________

Serial No. 76561134
_______

Anthony M. Keats of Keats McFarland & Wilson LLP for Jesse
James.

Jennifer Chicoski, Trademark Examining Attorney, Law Office
101 (Ronald R. Sussman, Managing Attorney).
_______

Before Grendel, Drost, and Kuhlke, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On November 20, 2003, applicant Jesse James filed an
intent-to-use application to register the mark THIRTYS (in
standard character form) on the Principal Register for
“automobile parts, namely, car wheel rims” in Class 12.1
The examining attorney refused registration under
Section 2(e)(1) on the ground that applicant’s mark is
merely descriptive of the identified goods. 15 U.S.C.

1 Serial No. 76561134.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser. No. 76561134
2
§ 1052(e)(1). When the examining attorney made the refusal
to register final, applicant filed a notice of appeal.2
The examining attorney argues (Brief at unnumbered pp.
3-4) that:
When the significance of the term “THIRTYS” is
considered within the context in which it will be used,
namely on “car wheel rims,” the average purchaser of
such goods in the market place would immediately
understand the mark’s reference to a specific
characteristic of the goods – their diameter size in
inches. Therefore, the mark is merely descriptive of
the goods.

Applicant argues that there is only a single reference
to the exact term “thirtys” and “the use of ‘twentys’ and
‘twenty fours’ is likewise irrelevant and inapplicable to
the applied-for mark because such references do not involve
Applicant’s mark.” Brief at 5.
Therefore, the question is whether the term “THIRTYS”
is merely descriptive of car wheel rims.
A mark is merely descriptive if it immediately conveys
information concerning a quality or characteristic of
the product or service. The perception of the relevant
purchasing public sets the standard for determining
descriptiveness. Thus, a mark is merely descriptive if
the ultimate consumers immediately associate it with a
quality or characteristic of the product or service.
On the other hand, if a mark requires imagination,
thought, and perception to arrive at the qualities or

2 Applicant also has another application (No. 76562049) on appeal
for the mark TREINTAS for the same goods. The word is alleged to
be the Spanish word for “Thirties” and it has been refused on a
similar ground. However, because of the differences in the
record and issues, we have chosen to issue separate opinions in
these cases.
Ser. No. 76561134
3
characteristics of the goods or services, then the mark
is suggestive.

In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d
1778, 1780 (Fed. Cir. 2003) (citations and internal
quotation marks omitted). See also In re Abcor Development
Corp., 588 F.2d 811, 200 USPQ 215, 217 (CCPA 1978) and In
re Nett Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001). It is clear that when we are analyzing a mark
to determine if it is merely descriptive, we must consider
the mark in the context of the identified goods or services
and not in the abstract. Abcor, 200 USPQ at 218.
The first question we address is the spelling of the
term “Thirtys.” The term “thirty” is “a cardinal number,
10 times 3.” The Random House Dictionary of the English
Language (unabridged) (2d ed. 1987).3 The same dictionary
identifies the plural of this word as “thirties.”
Applicant’s term THIRTYS would be pronounced the same as
the normal plural “thirties.” This slight misspelling
would not change the meaning of the term if the underlying
term is itself descriptive. The Supreme Court has held
that:
The word, therefore is descriptive, not indicative of
the origin or ownership of the goods; and being of

3 We take judicial notice of this definition. University of
Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594,
596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser. No. 76561134
4
that quality, we cannot admit that it loses such
quality and becomes arbitrary by being misspelled.
Bad orthography has not yet become so rare or so
easily detected as to make a word the arbitrary sign
of something else than its conventional meaning….

Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U.S.
446, 455 (1911). See also Armstrong Paint & Varnish Works
v. Nu-Enamel Corp., 305 U.S. 315 (1938) (NU-ENAMEL; NU held
equivalent of “new”); In re Quik-Print Copy Shops, 616 F.2d
523, 205 USPQ 505, 507 n.9 (CCPA 1980) (QUIK-PRINT held
descriptive; “There is no legally significant difference
here between ‘quik’ and ‘quick’”); Fleetwood Co. v. Mende,
298 F.2d 797, 132 USPQ 458, 460 (CCPA 1962) (“TINTZ [is] a
phonetic spelling of ‘tints’”); King-Kup Candies, Inc. v.
King Candy Co., 288 F.2d 944, 129 USPQ 272, 273 (CCPA 1961)
(“It is clear, therefore, that the syllable ‘Kup,’ which is
the full equivalent of the word ‘cup,’ is descriptive);
Andrew J. McFarland, Inc. v. Montgomery Ward & Co., 164
F.2d 603, 76 USPQ 97, 99 (CCPA 1947)(KWIXTART merely
descriptive for electric storage batteries); Hi-Shear Corp.
v. National Automotive Parts Association, 152 USPQ 341, 343
(TTAB 1966) (HI-TORQUE “is the phonetic equivalent of the
words ‘HIGH TORQUE’”); and In re Organik Technologies Inc.,
41 USPQ2d 1690, 1694 (TTAB 1997) (ORGANIK “is the phonetic
equivalent of the term ‘organic’"). Even if there was no
evidence that such terms as NU, QUIK, KWIK, KUP, or ORGANIK
Ser. No. 76561134
5
were used, it would not mean that they were not
descriptive.
We now look at the evidence in support of the
examining attorney’s argument that “THIRTYS” is merely
descriptive. An article in the Detroit Free Press (August
3, 2003) provides some basic information. It explains that
“Rims” are: “[a]nother name for wheels. Rims are not to be
confused with wheel covers or hub caps. Tires are mounted
around the rim.” The article defines “20s” as follows:
“If someone says they are riding on 20s, they are driving a
vehicle with 20-inch wheels. Many vehicles operate on a
standard of 15-inch wheels, but 20s are a very popular size
nationally.” Similarly, “24s” are defined as “24-inch
wheels. This is the size that’s popular everywhere this
summer.” The article quotes an interviewee as saying that:
“Rappers talk about their cars and rims on the radio and
you can see them in the videos. I think that is why they
have taken off.”
An article at www.sema.org describes the aftermarket
for rims as follows:
Wheels are getting absurdly large. There was a time
when 20s were huge; now 20s are almost commonplace.
The Dodge Ram pickup comes from the factory with 20s
on it, and now you’re seeing 26s at the SEMA Show. We
understand that GM is now voiding warranties in
vehicles that have 22s on them.

Ser. No. 76561134
6
Another article on the Advanced Auto Parts website has
a paragraph entitled “Got 20s?” The article reports that:
“The big trend for SUVs is much larger wheels, 22-, 24- and
even 26-inch wheels are now in vogue. Keep in mind,
however, that as wheels go up in size, usually the weight
does as well, which increases rotational mass and the
leverage on the brakes and suspension.”
The examining attorney also includes evidence of use
of the term “30” and similar terms in relation to auto rims
or wheels. At www.cheap-wheels-n-rims.com, there is an
article entitled “Give your auto the right look with custom
car rims and aftermarket wheels.” The article reports that
the “hottest of today’s custom rims are getting bigger and
bigger. Aftermarket wheels range in sizes from 14 inches
right up to 30 inches! … The trend of aftermarket wheels is
getting bigger every single summer.” Another article on
the same website refers to “the sizes of these rims has
gotten later [sic] and larger sizes for custom mags range
from 12, 13, 14, 15, 16, 17, 19, 20, 24, 26 and 30 inches
for SUV trucks like the Cadillac Escalade.” At
www.unverferth.com, rims are available in 24-, 26-, 28-,
and 30-inch diameters.”
The examining attorney even retrieved a vignette from
an electronic bulletin board conversation concerning Acura
Ser. No. 76561134
7
vehicles in December 2003. The conversation opened with
the subject “30” rim!!” The writer displayed a photo of a
car with large wheels and reported: “Yesterday while ridin
with a friend I saw two cars roll by ridin on HUGE rims.
We waved at the drivers and they told us, yep, 30’s. I had
my phone on me so I took a few pics, remember it’s a phone
before it is a camera, but this will give u an idea of what
they look like.” The first response to this message was:
“I didn’t know they had 30s out, are those custom?”
The examining attorney also submitted some additional
evidence to show that rims are often referred to by the
number that describes their diameter in plural form.
http://restored-classics.com (“custom chrome twentys”);
www.fordf150.net (“The Harley wheels are twentys though,
you wouldn’t be able to use them with your tires”); and
www.dodgedakotas.com (“chrome twentys”).4 Furthermore, the
lyrics of several songs show the use of a plural number to
refer to the size of the wheels on the vehicle. See, e.g.,
www.anysonglyrics.com (50 Cent, True Loyalty, “Look at them
twenty-fours diamonds spin”) and www.sing365.com (Insane
Clown Posse, 24’ on a ’84, “24’s on my 84 Regal. I’m
riding down your block with 2 Desert Eagles”).

4 We note the use of the nontraditional spelling of “twenties.”
Ser. No. 76561134
8
From this evidence, we draw the following conclusions.
Rims or wheels are often simply referred to by the plural
number that describes their size. The number can be
spelled in an understandable, but non-traditional, way,
e.g., twentys. Rim sizes have been getting larger and
larger with even production vehicles such as the Dodge Ram
pickup coming with 20s or 20-inch rims. Aftermarket rims
have similarly been increasing in size with various
articles indicating that 26-inch rims are not uncommon.
Other information now indicates that wheel sizes of 28 and
30 inches are beginning to appear. Indeed, there is one
report on an electronic bulletin board of an early
encounter with a car that had been modified to include 30-
inch rims and the writers referred to them as “30’s” or
“30s.”5 Similarly, applicant’s term “Thirtys” would merely
describe 30-inch wheels for automobiles.
Applicant argues that his term is “an abbreviation,
contraction, foreshortening or whimsical alternative
spelling for tire rims equal or greater than thirty inches
in diameter.” Brief at 3. If a misspelling “involves more
than simply a misspelling of a descriptive or generic

5 We emphasize that our decision does not rest on the use of the
term “30’s” or “30s” on this bulletin board. We do point to it
as an example of the natural progression of language that would
be used to refer to the size of rims as they become larger.
Ser. No. 76561134
9
word,” it may not be merely descriptive. In re Grand
Metropolitan Foodservices Inc., 30 USPQ2d 1974, 1975 (TTAB
1994) (Applicant’s “MufFuns” (stylized) mark has a
different commercial impression than the generic term
“muffin”). However, we see nothing whimsical about the
term “thirtys.” It is no more whimsical than the earlier
large size rims that were referred to simply as “twentys,”
“20s,” “twenty-fours,” or “24s.” It is not so much an
abbreviation as it is what Judge Rich referred to as
follows:
[T]he users of language have a universal habit of
shortening full names -- from haste or laziness or
just economy of words. Examples are: automobile to
auto, telephone to phone, necktie to tie, gasoline
service station to gas station. I regard it as
inevitable that a gas monitoring badge will be called
a gas badge…

Abcor, 200 USPQ at 219 (Rich, J. concurring).

Regarding applicant’s allegations (Brief at 5) that
the “evidence of record is clearly insufficient,” we simply
disagree. The term “30” obviously is exactly descriptive
of wheels having a thirty-inch diameter. There is no
difference between using the Arabic numeral “30” or the
word “thirty.” Both mean exactly the same thing, the
number 30. Applicant’s identification of goods includes
Ser. No. 76561134
10
wheels of thirty-inch diameter.6 The evidence demonstrates
that wheels are frequently referred to by the plural number
of their size. People even use similar misspellings when
using these terms. We have no doubt that if prospective
purchasers of car rims were to encounter the term THIRTYS
on thirty-inch car rims, they would immediately understand
that the term was merely descriptive of these goods.
Decision: The examining attorney’s refusal to
register applicant’s mark on the ground that it is merely
descriptive of the identified goods is affirmed.

6 There is no argument by applicant in this case that the term
“thirty” would not describe his wheels. If that were the case,
there would then be a question of whether the mark was
deceptively misdescriptive of the goods.