JohnsonvilleSausage, LLC

Trademark Trial and Appeal Board

Jun 30, 2006

No. 78429616 (T.T.A.B. Jun. 30, 2006)

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Mailed:
June 30, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Johnsonville Sausage, LLC
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Serial No. 78429616
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Brian G. Gilpin of Godfrey & Kahn, S.C. for Johnsonville
Sausage, LLC.

Susan Stiglitz, Trademark Examining Attorney, Law Office
109 (Dan Vavonese, Managing Attorney).
_______

Before Seeherman, Zervas and Cataldo, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Johnsonville Sausage, LLC has appealed from the final
refusal of the Trademark Examining Attorney to register
SUPER-CHILLED in standard character form for “sausage.”1
Registration has been refused pursuant to Section 2(e)(1)
of the Trademark Act, 15 U.S.C. §1052(e)(1), on the ground

1 Application Serial No. 78429616, filed June 3, 2004, pursuant
to Section 1(b) of the Trademark Act (intention to use the mark
in commerce).
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76020517
2
that applicant’s mark is merely descriptive of its
identified goods.
Applicant and the Examining Attorney filed briefs on
appeal. Applicant did not request an oral hearing.
We affirm the refusal.
A term is deemed to be merely descriptive of goods or
services, and therefore prohibited from registration by
Section 2(e)(1) of the Trademark Act, if it forthwith
conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the
goods or services. See, e.g., In re Gyulay, 820 F.2d 1216,
3 USPQ2d 1009 (Fed. Cir. 1987); and In re Abcor Development
Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978).
Whether a term is merely descriptive is determined not
in the abstract, but in relation to the goods or services
for which registration is sought, the context in which it
is being used on or in connection with those goods or
services, and the possible significance that the term would
have to the average purchaser of the goods or services
because of the manner of its use. That a term may have
other meanings in different contexts is not controlling.
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
Moreover, “[t]he question is not whether someone presented
with only the mark could guess what the goods or services
Ser No. 76020517
3
are. Rather, the question is whether someone who knows
what the goods or services are will understand the mark to
convey information about them.” In re Tower Tech Inc., 64
USPQ2d 1314, 1316-17 (TTAB 2002). See also In re Patent &
Trademark Services Inc., 49 USPQ2d 1537 (TTAB 1998); In re
Home Builders Association of Greenville, 18 USPQ2d 1313
(TTAB 1990); and In re American Greetings Corporation, 226
USPQ 365 (TTAB 1985).
It is the Examining Attorney’s position that
applicant’s mark is merely descriptive because it refers to
the manner in which applicant’s sausages are stored and
shipped. In support of this position, the Examining
Attorney made of record various Internet webpages and
excerpts of articles taken from the NEXIS database, some of
the most relevant of which are shown below (emphasis
added):
Hams are cooked in a computer-
controlled hot water tank. Water
cooking maintains an exact and even
temperature—never overcooking or
undercooking. The cooked product is
removed from the mold and quickly
super-chilled.
“Progressive Grocer,” September 1996

Though the box claims that the sleeve
will chill a bottle in five minutes, it
took 15 minutes for a bottle of my
Chardonnay to get cool, not super-
chilled.
“Chicago Sun Times,” August 5, 1993
Ser No. 76020517
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...On processing lines, beef carcasses
are steam-pasteurized at 180 degrees F
to achieve a 40-log pathogen reduction
and immediately superchilled in water.
“Food Engineering: The Magazine for
Operations and Manufacturing
Management,” www.foodengineeringmag.com

Then, as poultry production became big
business, processing plants took over
some of the local butcher’s work,
turning out dressed super-chilled (ice
pack) whole birds in great volume.
“Arkansas Democrat-Gazette,” January 2,
1985

Headline: Fresh ideas in climate
control; efficient consumer response
initiatives will change the way you
handle temperature sensitive products
We are adapting our systems to this new
trend in super-chilled products.
“Transportation & Distribution,”
October 1997

During the brewing process, Molson Ice
is super-chilled to below freezing
temperatures, leading to the formation
of ice crystals.
“Modern Brewery Age,” September 27,
1993

Commercial packaged chicken isn’t
“frozen,” it’s “superchilled.” That’s
the silly trade term. It’s
“superchilled” to a rocklike texture
and bears a remarkable resemblance to
“frozen” chicken. The poultry and fish
cases at Costco are generally kept at
33F to 35F. The “superchilled”
granitic chicken is put into the cases
as delivered. The poultry packers
discovered that superchilling their
products killed some bacteria,
seriously slowed others and extended
the shelf life in stores.
Ser No. 76020517
5
www.talkaboutcooking.com

“Fresh” chicken is often (always?)
“superchilled” before shipping, which
isn’t quite the same as freezing.
www.cooking-forum.net March 13, 2004

The Examining Attorney also points to Jenn-Air’s “A
User’s Guide for Food Storage and Food Safety,” submitted
by applicant, which, under the heading “Poultry and Fish,”
states:
The optimal place for storing fresh
meat, fish and poultry is in a storage
drawer with ClimateZone technology set
on the “meats” setting. This setting
provides a consistent, superchilled 31°F
compartment which keeps these items
fresh for longer.

In addition, the Examining Attorney relies on the
second verb definition of “chill”: “to cool food or drink
in a refrigerator, or be left to cool there,”2 and on the
third definition of “super”: “exhibiting the
characteristics of its type to an extreme or excessive
degree .”3 These dictionary definitions were
properly made of record.

2 Encarta World English Dictionary, online edition.
3 Merriam-Webster’s Collegiate Dictionary, online edition. The
Examining Attorney also submitted a definition of “super” as
meaning “of high grade or quality.” Because, in the context of
this mark, we believe that “super” would be viewed as modifying
“chilled,” rather than as directly describing the goods, we do
not consider this definition to be applicable.
Ser No. 76020517
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Applicant, too, has submitted a number of dictionary
definitions for the words “super” and “chill,” including
slang definitions taken from dictionary.com. These
definitions show, inter alia, that “chill” can mean “hang
out” or “relax” or “raw” or “discourage,” or be an
adjective showing approval,” and that “super” can mean a
“supernumerary” or “superintendent” or “very large or
powerful.” However, as noted above, that a term may have
other meanings in different contexts is not controlling.
As applied to applicant’s goods, sausages, potential
purchasers would not believe that “super” refers to
“superintendent,” or that “chill” would have the slang
meaning “very cool.” Rather, as combined in the mark,
SUPER would be perceived as modifying “CHILLED,” and
consumers would ascribe to the word SUPER its meaning of
“to an excessive degree” and to “CHILLED” the meaning of
“made something cold” or “has become cold” (the past tense
of the definitions of “chill” as a verb).4 Thus, the
meaning of the mark as a whole would be something that has

4 In this connection, we take judicial notice of the definitions
of “chill” as meaning “to become cold” and “to lower in
temperature” in The American Heritage Dictionary of the English
Language, © 1970. The Board may take judicial notice of
dictionary definitions. University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser No. 76020517
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been excessively cooled, or cooled to a lower temperature
than normal.
The numerous excerpts showing usage of the term
“super-chilled” in the food industry show that this is the
meaning the mark would have when applied to sausages.
Although the Examining Attorney has not submitted evidence
showing that sausages have been described as “super-
chilled,” the excerpts show use of this term to describe
chicken, ham and food products in general. Consumers
seeing SUPER-CHILLED in connection with sausages would not
need to exercise any degree of imagination or undertake any
thought process to understand that the sausages have been
cooled to a lower-than-normal temperature, the meaning of
SUPER-CHILLED.
We note applicant’s argument that “consumers hearing
the term SUPER-CHILLED, even if armed with the knowledge
that the mark relates to some type of food product, would
not immediately think of sausages.” Brief, p. 4. This
argument fails to consider the well-established principle,
set forth above, that mere descriptiveness is determined in
relation to the goods or services for which registration is
sought. Thus, it is not a question of whether someone
presented with only the mark could guess what the goods or
services are, even if they are given the “hint” that the
Ser No. 76020517
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general category is foodstuffs. For the same reason, we
find unpersuasive applicant’s argument that “a typical
consumer would likely not be able to arrive at Applicant’s
Goods from seeing or hearing Applicant’s mark without
having prior knowledge of the nature of Applicant’s Goods.”
Id.
Applicant also asserts that registration of SUPER-
CHILLED “would in no way deprive Applicant’s competitors of
the right to inform consumers that their goods are related
to sausage.” Brief, p. 7. Again, a term is merely
descriptive, and therefore unregistrable, if it directly
informs consumers of a quality, characteristic, or other
feature of the goods. That competitors may use other terms
to tell consumers that their goods are sausages, or even to
describe a characteristic of their goods, is not the point.
Applicant may not deprive competitors of using a term that
directly informs consumers of a significant characteristic
of their goods.
Decision: The refusal of registration is affirmed.