Joel Wiens

Trademark Trial and Appeal Board

Oct 13, 2010

No. 78526520 (T.T.A.B. Oct. 13, 2010)

Mailed: 10/13/10

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Joel Wiens
________

Serial No. 78526520
_______

Richard O. Bartz of Bartz & Bartz for Joel Wiens.

Sharon A. Meier, Trademark Examining Attorney, Law Office
112 (Angela Wilson, Managing Attorney).
_______

Before Quinn, Walters and Ritchie, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

Joel Wiens filed an application to register on the
Supplemental Register the designation JOC for “protective
athletic garments, namely, men’s hockey shorts with cup
pouches and sock clips, men’s hockey pants with cup
pouches, goalie hockey compression shorts with cup pouches,
cups and socks holders, women’s hockey shorts with pelvic
protectors and sock holders, with cup pouches and straps,
men’s briefs with cup pouches, men’s compression shorts
with protective cups, men’s compression shorts with
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Ser No. 78526520
2
adjustable protection cups, men’s shorts with contour cup
pouches, and men’s pants with built-in cup pouches”.1
The trademark examining attorney refused registration
on the Supplemental Register because applicant’s
designation is the phonetic equivalent of the word “jock,”
and this term is generic for the goods identified in the
application. As such, the designation is incapable of
registration.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
The examining attorney maintains that JOC is the
phonetic equivalent and a slight misspelling of the term
“jock,” that is, the generic term for the class of
applicant’s goods. According to the examining attorney,
the relevant purchasing public, that includes both male and
female athletes, understands that the term “jock” primarily
refers to a type of protective athletic garments commonly
called “jock shorts” or “jock pants.” In support of the
refusal the examining attorney introduced dictionary
definitions of the term “jock,” a third-party patent
registration, and numerous third-party web pages retrieved

1 Application Serial No. 78526520, filed December 3, 2004,
alleging first use anywhere and first use in commerce on October
31, 1993.
Ser No. 78526520
3
from the Internet showing generic uses of “jock” in
connection with clothing of the type identified in the
present application.
Applicant contends that his use of the designation JOC
is “as a colloquialism for athlete,” and further “does not
dispute that the mark JOC is an obvious misspelling of, and
phonetically equivalent to, the colloquial term ‘Jock.’”
(Brief, p. 2). Although conceding that JOC is merely
descriptive, applicant argues that the designation is not
generic and, thus, is registrable on the Supplemental
Register, with the potential to acquire distinctiveness
through continued use in commerce. More specifically,
applicant asserts that there are “two different definitions
for the term ‘Jock’ in the same context...both to identify
a person who is an athlete and a designation for an
athletic support undergarment characterized by an
elasticized belt and a pouch for supporting and protecting
the genitals.” (Brief, p. 4). But applicant contends that
the “athlete” definition of the colloquialism “jock” is the
primary meaning, especially because applicant’s goods are
not limited to just jock straps, but rather include female
undergarments. In this connection, applicant states that
women consumers do not necessarily understand the term
“jock” to refer primarily to a jockstrap, and that they
Ser No. 78526520
4
primarily associate the term “jock” with an athlete.
Applicant points out that his usage of JOC is meant to
convey the “athlete” meaning of the term, especially in
view of his use of “athletic-looking models” in
advertisements. Applicant has submitted photographs and
labels showing how his mark is actually used, dictionary
listings for “jock,” excerpts from his product catalog,
excerpts from the Amazon.com website showing athletic
garments for sale, and copies of five registered patents,
covering athletic garments, owned by applicant.
To be registrable on the Supplemental Register, the
matter sought to be registered must be “capable of
distinguishing applicant’s goods or services” pursuant to
Section 23 of the Trademark Act, 15 U.S.C. §1091. Generic
terms are, by definition, incapable of indicating a
particular source of the goods or services. “The critical
issue in genericness cases is whether members of the
relevant public primarily use or understand the term sought
to be protected to refer to the genus of goods or services
in question.” In re 1800Mattress.com IP LLC, 586 F.3d
1359, 92 USPQ2d 1682, 1684 (Fed. Cir. 2009), citing H.
Marvin Ginn Corp. v. International Association of Fire
Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir.
1986). Determining whether a term is generic involves a
Ser No. 78526520
5
two-step inquiry: First, what is the genus of goods or
services at issue? Second, is the term sought to be
registered understood by the relevant public primarily to
refer to that genus of goods or services? Id. “Evidence
of the public’s understanding of the term may be obtained
from any competent source, such as purchaser testimony,
consumer surveys, listings in dictionaries, trade journals,
newspapers, and other publications.” In re Merrill Lynch,
Fenner and Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143
(Fed. Cir. 1987). To be generic, members of the relevant
public must primarily use or understand applicant’s term as
referring to the genus of his goods. Ginn, 228 USPQ at
530.
Registrability must be determined in this appeal on
the basis of the goods as set forth in the application. In
re Vehicle Information Network Inc., 32 USPQ2d 1542, 1544
(TTAB 1994). Registration will be denied if a mark is
generic of any of the goods for which registration is
sought. See In re Quik-Print Copy Shop, Inc., 205 USPQ
505, 507 (CCPA 1980).
Our first task under Marvin Ginn is to determine,
based on the record before us, the genus of applicant’s
goods. Applicant and the examining attorney are in
essential agreement on this first factor. We find that the
Ser No. 78526520
6
genus of goods at issue is men’s and women’s protective
athletic garments.
We next determine whether the designation applicant
seeks to register, JOC, is understood by the relevant
public primarily to refer to that genus of goods. The
relevant public comprises men and women athletes or, more
generally, men and women who participate in athletic and/or
sporting contests.
The examining attorney introduced a dictionary
definition of the term “jock,” the phonetic equivalent of
“joc”:
1. An athletic supporter
2. Sports. An athlete, especially in
college.
3. Slang. One characterized by
excessive concern for machismo.
Etymology: Short for jockstrap.

The American Heritage Dictionary of the English Language
(3d ed. 1992). Entries of “jock” in various other
dictionaries made of record reflect the same range of
relevant definitions. “An athletic supporter, often
referred to as a jockstrap or a jock, is an undergarment
used by athletes to support their genitals.”
(www.ehow.com).
As just indicated, it is not disputed that “joc” is
the phonetic equivalent and/or a misspelling of the term
Ser No. 78526520
7
“jock.” “A slight misspelling of a word will not turn a
descriptive or generic word into a non-descriptive mark.”
TMEP §1209.03(j) (7th ed., Oct. 2010). See In re Carlson,
91 USPQ2d 1198 (TTAB 2009) (URBANHOUZING would be perceived
by consumers as the equivalent of the descriptive term
URBAN HOUSING, rather than as including the separate word
ZING); In re Ginc UK Ltd., 90 USPQ2d 1472 (TTAB 2007)
(generic meaning of “togs” not overcome by misspelling of
the term as TOGGS); and In re Hubbard Milling Co., 6 USPQ2d
1239 (TTAB 1987) (MINERAL-LYX held generic for mineral
licks for feeding livestock). Thus, we turn to consider
the uses of “jock” in connection with protective athletic
garments.
The examining attorney introduced excerpts of the
websites of third-party online retailers showing sales of
athletic supporters referred to as “jocks.” In point of
fact, the terms “athletic supporter” and “jock” essentially
are interchangeable. See, e.g, “Under Armour TurfGear
Performance Jock with Cup Support”; “Reebok Sr. Goalie
Jock”; “Bike’s new Performance line of jocks and support
gear”; and “A durable, comfortable jock that provides
maximum protection for all sports.” The record also
includes applicant’s Design Patent No. 571533 for “Combined
Adjustable Jock Cup Pouch and Pants,” and No. 579628 for
Ser No. 78526520
8
“Adjustable Jock Cup Pouch,” both items that appear to be
encompassed by the identification of goods in the present
application. In this connection, we note that every item,
as identified in the identification of goods, including
women’s hockey shorts, includes a protective “cup” or “cup
pouch.”
We appreciate the fact that applicant’s goods do not
appear to encompass athletic supporters per se, but rather
goods, such as shorts and pants, that incorporate the
qualities and functions of an athletic supporter. Thus,
more significant is the evidence of record showing uses of
“jock” in connection with other types of athletic garments.
The following excerpt includes an explanation of “jock
shorts”:
Jock Shorts
If you’re looking for jock shorts that
protect your goods and support your
muscles, then you’re going to love our
collection at International Jock.
We’ve got fantastic styles with built-
in jocks from superior brands such as
Safe-T-Gard, Stromgren and Bike, to
name a few.

Why Choose Jock Shorts over Jock
Straps?
If you’ve never worn jock shorts and
don’t know what they offer that
jockstraps don’t, here’s a heads up:
they use supportive materials to
prevent muscle fatigue in your legs,
pelvis and lower back. Also known as
“compression shorts,” these garments
Ser No. 78526520
9
generally use Lycra or spandex blends
to support your muscles. In long-
lasting activities like baseball and
cross-country running, jock shorts can
truly increase your competitive edge.
(www.internationaljock.com)

Also of record is a third-party patent, namely Patent
No. 7216371 for “Jock support short”:
An alternative to the jock strap is an
athletic support short, which secures a
protective cup over the groin region of
a user without the use of jock-type
straps, and may be comfortably worn as
outerwear or under other clothing or
equipment...it would be beneficial to
provide a jock support device
possessing the comfort provided by a
short with the level of protection
afforded by conventional jock straps.

The record includes numerous website excerpts showing
the sale of “jock shorts” and “jock pants” as alternatives
to the traditional jock strap. The following examples are
representative of the evidence: “Shock Doctor Loose Adult
Hockey Jock Shorts”; “Bauer Jock Plus Junior Jock Shorts”;
and “Johnnygard Compression Jock Shorts”
(www.prohockeyequipment); “Easton Synergy Compression Jock”
(www.ushockey.com); “Shock Doctor 272 Senior Comp Hockey
Jock Pants” (www.prohockeyequipment.com); “Itech JT201 Jr.
Compression Jock Pant”; and “Reebok Compression Jock Pants”
(www.hockeymonkey.com); and “see below for an excellent
selection of various brands of senior, junior and youth
Ser No. 78526520
10
hockey shorts and hockey jock shorts.”
(www.skatingfitness.com). Also of record is the following
excerpt:
The company [Bike] is launching a line
with new fabrics and designs that they
say will hit stores next year. They’re
also set to debut the “Boxer Jock” and
the “Brief Jock” products with the
support of a jock without the outdated
appearance.”
www.valleyadvocate.com

There also is evidence showing the following uses of
“jock short” or “jock” specifically in connection with
women’s athletic garments: “Itech Women’s Jock Short”
(www.hockeyworld.com); and “Shock Doctor 274 Female Basix
Compression Hockey Jock.” (www.hockeyonestore.net).
Based on the evidence of record, we find that “joc,”
the phonetic equivalent and a misspelling of the term
“jock,” is generic for shorts and pants that feature
protective cups and/or cup pouches. See In re Central
Sprinkler Co., 49 USPQ2d 1194 (TTAB 1998) (ATTIC is generic
for sprinklers installed primarily in attics); and In re
Reckitt & Colman, North America Inc., 18 USPQ2d 1389 (TTAB
1991) (PERMA PRESS is generic for soil and stain removers
for use on permanent press products). Because the
designation JOC is used in connection with “jock”-type
athletic garments, this meaning will be the primary
Ser No. 78526520
11
meaning, and one that clearly dominates over the meaning of
“jock” as “an athlete.” The commonly understood and well
recognized meaning of the word “jock” in connection with
athletic wear, coupled with the numerous examples showing
use of “jock” in connection with athletic garments such as
shorts and pants, convince us that relevant consumers will
perceive the applied-for mark JOC as the name of a product
that functions like a “jock.” While we recognize that
applicant’s garments may not be “jocks” in the classic
sense, the goods incorporate a “jock” as that term is
understood in the athletic garment field. Given the
widespread generic use of “jock” in connection with
athletic shorts and pants, the designation “joc,” the
phonetic equivalent and misspelled version of “jock,” is
incapable of distinguishing applicant’s goods from the same
or similar goods of others.
Decision: The refusal to register on the Supplemental
Register is affirmed.