Joseph E. Sielski

Trademark Trial and Appeal Board

May 21, 2015

No. 86032662 (T.T.A.B. May. 21, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: May 21, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Joseph E. Sielski
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Serial No. 86032662
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Morland C. Fischer of Law Offices of Morland C. Fischer for Joseph E. Sielski.

Daniel S. Stringer, Trademark Examining Attorney, Law Office 103 (Michael
Hamilton, Managing Attorney).
_______

Before Cataldo, Shaw and Masiello,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Joseph E. Sielski (“Applicant”) seeks registration on the Principal Register of the
mark CHEF’S CUBE (in standard characters) for the following goods, as amended:
“vacuum packaging machines for sealing plastic pouches,” in International Class 7.1
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(e)(1) of the Trademark Act of 1946, 15 U.S.C. § 1052(e)(1), on
the ground that CHEF’S CUBE merely describes a function, feature or

1 Application Serial No. 86032662 was filed on August 8, 2013, based upon Applicant’s
allegation of May 21, 2013 as a date of first use of the mark anywhere and in commerce
under Section 1(a) of the Trademark Act.
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characteristic of the identified goods. When the refusal was made final, Applicant
appealed. Both Applicant and the Examining Attorney filed briefs.
A term is merely descriptive of goods (or services) within the meaning of Section
2(e)(1) if it forthwith conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use thereof. In re Chamber of Commerce
of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012). See also, In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether a mark is merely
descriptive is determined in relation to the goods for which registration is sought
and the context in which the term is used, not in the abstract or on the basis of
guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978);
In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002). A term need not immediately
convey an idea of each and every specific feature of the goods in order to be
considered merely descriptive; it is enough if it describes one significant attribute,
function or property of them. See In re Gyulay, 3 USPQ2d at 1010; In re
H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338
(TTAB 1973). This requires consideration of the context in which the mark is used
or intended to be used in connection with those goods, and the possible significance
that the mark would have to the average purchaser of the goods in the relevant
marketplace. See In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219; In
re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007);
In re Abcor Dev. Corp., 200 USPQ at 218; In re Venture Lending Assocs., 226 USPQ
285 (TTAB 1985).
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In other words, the question is whether someone who knows what the goods or
services are will understand the mark to convey information about them. DuoProSS
Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753,
1757 (Fed. Cir. 2012); In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB
2002); In re Patent & Trademark Servs. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998).
“On the other hand, if one must exercise mature thought or follow a multi-stage
reasoning process in order to determine what product or service characteristics the
term indicates, the term is suggestive rather than merely descriptive.” Coach Servs.
Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1616 (TTAB 2010) (quoting In re
Tennis in the Round, Inc., 199 USPQ 496, 497 (TTAB 1978)), vacated-in-part on
other grounds, 668 F.3d 1356, 101 USPQ2d 1713 (Fed. Cir. 2012).
Where marks are comprised of multiple words, it is generally held that if the
individual components of a mark retain their descriptive meaning in relation to the
goods, the combination results in a composite mark that is itself descriptive and not
registrable. In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1823 (TTAB 2012). See
also, e.g., In re King Koil Licensing Co., 79 USPQ2d 1048, 1052 (TTAB 2006)
(holding THE BREATHABLE MATTRESS merely descriptive of beds, mattresses,
box springs, and pillows where the evidence showed that the term “BREATHABLE”
retained its ordinary dictionary meaning when combined with the term
“MATTRESS” and the resulting combination was used in the relevant industry in a
descriptive sense); In re Associated Theatre Clubs Co., 9 USPQ2d 1660, 1663 (TTAB
1988) (holding GROUP SALES BOX OFFICE merely descriptive of theater ticket
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sales services, because such wording “is nothing more than a combination of the two
common descriptive terms most applicable to applicant’s services which in
combination achieve no different status but remain a common descriptive compound
expression”).
Only where the combination of descriptive terms creates a unitary mark with a
unique, incongruous, or otherwise nondescriptive meaning in relation to the goods is
the combined mark registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551,
157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161,
1162-63 (TTAB 2013).
In support of the refusal to register, the Examining Attorney made of record
with his November 22, 2013 Office Action, the following definitions of the terms
comprising the mark from Collins American English Dictionary
(collinsdictionary.com):
chef – a cook in charge of a kitchen, as of a restaurant; head cook
any cook;
cube – a solid with six equal, square sides
anything having more or less this shape.
In addition, the Examining Attorney made of record with his November 22, 2013
Office Action copies of pages from informational and commercial Internet websites
displaying various vacuum packaging machines used to seal plastic pouches
containing food. The following examples are illustrative:
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(xutiapack.com/Vacuum-machine);
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(Vacuumsealersunlimited.com); and
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(jawfeng.com/en/product).
The Examining Attorney further made of record with his May 7, 2014 Office
Action additional Internet webpages, of which the following are illustrative:
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(domesticdivasblog.com);
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(bdoutdoors.com/story/vacuum-sealer-vacmaster); and
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(twenga.com/vacuum-sealer).
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The Examining Attorney argues that the CHEF’S CUBE mark merely describes
“a feature and intended user of applicant’s goods; namely, cube-shaped vacuum
packaging machines for use by chefs.”2 The Examining Attorney further argues that
the evidence of record establishes that chefs use vacuum packaging machines, and
that “vacuum packaging machines are commonly designed in the shape of a cube.”3
Applicant “admits the dictionary definitions of ‘chef’ and ‘cube’ and that vacuum
packaging machines could be cubical in shape.”4 However, Applicant contends that
“use of the applicant’s vacuum packaging machines is not limited to a chef.”5
Applicant further contends that CHEF’S CUBE is arbitrary and fanciful and that
“the evidence being relied upon by the Examining Attorney fails to show or suggest
that the compound mark CHEF’S CUBE is a commonly-used term of art or would
have any particular meaning or significance in any trade or business, let alone the
business of applicant.”6 (emphasis in original).
The evidence made of record by the Examining Attorney indicates, and Applicant
acknowledges, that vacuum packaging machines of a type identified in the involved
application may be used by chefs. The record also indicates, and Applicant further

2 6 TTABVUE 7. Record citations are to TTABVUE, the Trademark Trial and Appeal
Board’s publically available docket history system. See Turdin v. Trilobite, Ltd., 109
USPQ2d 1473, 1476 n.6 (TTAB 2014).

3 Id.

4 4 TTABVUE 3.

5 4 TTABVUE 4.

6 4 TTABVUE 3.
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acknowledges, that vacuum packaging machines may be cube shaped.7 However,
the evidence of record fails to show that the cubical shape of Applicant’s goods or
other vacuum packaging machines so shaped is a significant feature thereof. The
evidence excerpted above clearly indicates that vacuum packaging machines are
produced in a variety of shapes other than cubes, strongly suggesting that the cube
shape of Applicant’s goods is an arbitrary, aesthetic or practical choice of product
design. The Examining Attorney fails to explain how the cubical shape of
Applicant’s goods is a significant feature, aspect or characteristic of vacuum
packaging machines such that the mark CHEF’S CUBE may be merely descriptive
of thereof.
The Examining Attorney specifically relies upon the following cases as support
for the refusal to register: In re Planalytics, Inc., 70 USPQ2d 1453, 1456 (TTAB
2004) (“Applicant’s identification of services makes it clear that its services are
directed to those who are in the field of making purchasing decisions for natural
gas. The evidence supports the conclusion that these people would be referred to as
gas buyers.”); In re Camel Mfg. Co., 222 USPQ 1031, 1032 (TTAB 1984) (“That at
least some of applicant’s goods are directed toward the category of purchaser we
could refer to as the ‘mountain camper’ is clear from a perusal of applicant’s Winter
1982 catalog… .”). However, in these cases, the mark clearly described an intended
user of the goods (GASBUYER and MOUNTAIN CAMPER). The mark at issue,
CHEF’S CUBE, combines an intended user of the goods with a term indicating one

7 Indeed, the specimen of record submitted with the involved application consists of a
photograph of Applicant’s mark as it appears on a cube-shaped vacuum packaging machine.
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of several shapes in which it may be produced. The Examining Attorney further
relies upon In re Metcal Inc., 1 USPQ2d 1334, 1335 (TTAB 1986) (“The term
SOLDER STRAP consists of two nouns, each of which has an immediately
cognizable meaning in relation to appellant’s goods.”). In that case, the goods were
heat-conducting straps used in the soldering process. The mark in that case
combined “solder,” describing the primary use of the goods and “strap,” describing
the fundamental nature of the goods. Similarly, in In re H.U.D.D.L.E., 216 USPQ at
359 (“Applicant’s goods are in fact fixtures in the form of curved tubes which serve
as holders and racks.”), the Board found that TOOBS is a misspelling of “tubes,”
which merely described the nature of the goods and might even be the generic name
therefor. Unlike these cases, the evidence of record does not support a finding that
CHEF’S CUBE merely describes a significant characteristic or feature of vacuum
packaging machines. Rather, the mark describes an intended user and one of many
shapes in which the goods may be made. As a result, we find the evidence of record
is insufficient to support a finding that CHEF’S CUBE merely describes an
intended user of the identified goods and a significant feature thereof, and, as such,
is insufficient to support the refusal of registration.
We hasten to point out that there may be instances in which a mark – such as
CHEF’S VACUUM, for instance – may merely describe an intended user and
significant characteristic of goods such as those identified herein. However, the
record in this case does not support such a finding as to the involved mark, CHEF’S
CUBE.
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DECISION: The refusal of registration under Trademark Act Section 2(e)(1) is
reversed.