K-2 Corporation

Trademark Trial and Appeal Board

Sep 7, 2006

No. 78364151 (T.T.A.B. Sep. 7, 2006)

Mailed:
September 7, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re K-2 Corporation
________

Serial No. 78364151
_______

Cindy L. Caditz of Klarquist Sparkman, LLP for K-2
Corporation.

M. Catherine Faint, Trademark Examining Attorney, Law
Office 103 (Michael Hamilton, Managing Attorney).
_______

Before Quinn, Drost and Zervas, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:
K-2 Corporation has appealed from the final refusal of
the examining attorney to register on the Principal
Register the term CINCH (in standard character form) as a
trademark for the following goods: “sports equipment,
namely snowboard bindings” in International Class 28.1

1 Application Serial No. 78364151 was filed on February 6, 2004,
based on applicant's assertion of its bona fide intention to use
the mark in commerce.

THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 78364151
2
The examining attorney has finally refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. §1052(e)(1), on the ground that, when used on
applicant's goods, the mark CINCH would be merely
descriptive of such goods.
Applicant has appealed the final refusal. Both
applicant and the examining attorney have filed briefs.
The examining attorney maintains that the mark
“describes a significant function of the goods, namely to
tighten the snowboard bindings.” Brief at unnumbered p. 7.
In support of her refusal, the examining attorney relies on
several dictionary definitions of “cinch.” The dictionary
definition taken from www.msn.encarta.com, submitted with
the first Office action, states:
noun …
1. something easily done: something that can be
done or achieved with very little effort
(informal) 2. something certain: something that
is absolutely certain to happen (informal) 3.
RIDING strong girth: a girth for a saddle,
consisting of a thick strap secured by passing
the end through two metal rings 4. firm grip: a
firm grip (archaic)

transitive verb …
1. tighten: to tighten something by constricting
it 2. RIDING put cinch on horse: to put a cinch
on a horse 3. grasp something around middle: to
grasp something around the middle, as a belt does
(informal) 4. make certain of: to make certain
of something (dated informal)

Serial No. 78364151
3
The examining attorney also included with her October 26,
2005 denial of applicant's request for reconsideration the
following definitions of “cinch”: “a tight grip” from
www.m-w.com; “A tight grip” and “To get a tight grip on”
from www.bartleby.com; “a firm hold or tight grip” and “to
gird with a cinch; gird or bind firmly” from
www.infoplease.com; and “to place a cinch on; attach
securely, tighten” from www.wordsmyth.net. Additionally,
the examining attorney relies on four web pages, made of
record with her Office actions, which state in relevant
part:
1. From www.wakepics.com (involving
wakeboarding)

Title: Bindings of the Future. Enter Zeus.

They weigh just over 3 lbs each, which is pretty
standard for a high-end binding that has a solid
base plate. … There a[re] two cinch locations –
one at the top that supports your upper ankle,
and a second on the top of your foot that allows
for a higher level of board control. These
bindings come in an assortment of sizes that will
fit just about any rider ranging from size 5-14.

2. From www.buychoice.com (involving a
snowshoe)

We all know that the binding is the heart of a
snowshoe. … The binding draws tight with a
bootlace that runs through huge 3/8 inch speed
laces, so even frozen laces flow smoothly. The
laces cinch with a cam type cord lock that is
easy to use with mittens and will not loosen with
use. …

Serial No. 78364151
4
Specs
• Simple cord closure binding
• Cam locking cord cinch for easy, secure
operation

3. From www.stokecity.ca (“Canada’s Online
Wakeboard and Wakeskate Community.”)2

Hyperlite Split Bindings

… Three easy to cinch front lace guides combined
with an adjustable Velcro toe and top strap with
the similar eva toe and heel material found in
our high-end models.

4. From www.wildsnow.com (involving skiing)

Randonne alpine touring “AT” ski gear – What is
Hip”
…
As parallel technique and gear improved, skiers
wanted more resistance to heel lift. An
interesting development that resulted was the
Amstutz Spring. This fascinating device, which
would still work well today, was simply a strap
you cinched around your instep, then attached to
a spring or rubber band that was anchored to your
ski behind your heel. Perfect. You could lift
your heels with adjustable resistance – or cinch
down for an almost modern alpine like feel.

The examining attorney concludes that these articles “show
that those who use bindings with sports gear expect to be
able to tighten those bindings and they do this by
‘cinching’ them ….” Brief at unnumbered p. 3.

2 Although this web site is from Canada, we consider it because
applicant has not objected to it on the basis that it is from
Canada and because the information provided on the web site is
largely informational. See In re King Koil Licensing Company,
Inc., 79 USPQ2d 1048 (TTAB 2006).
Serial No. 78364151
5
Applicant argues that the examining attorney has not
presented a prima facie case because the evidence presented
by the examining attorney is “negligible” and because CINCH
has multiple “meanings and connotations” when applied to
applicant's snowboard binding, i.e.:
… applicant's snowboard bindings are easy to use;

… the snowboard bindings will facilitate the
performance of snowboarding tricks by a user;

… the snowboard bindings will keep the user
securely fastened to the snowboard;

… the performance of the bindings will make
snowboarding easier than other bindings; and

… the snowboard bindings can be tightened by the
user to achieve an optimal fit.

Brief at p. 6. According to applicant, “the Examiner
isolates one definition (‘to tighten something by
constricting it’) and rejects out of hand any notion that
the word ‘cinch’ can have any other connotation relevant to
snowboard bindings.” Id. Applicant argues that because
the examining attorney has not established that the
immediate meaning of “cinch” in connection with snowboard
bindings in the mind of a consumer is the “tightening”
definition, and the evidence is inadequate to support the
contention that the mark is merely descriptive, the
examining attorney has failed to carry her burden of
establishing a prima facie case. Reply at p. 7.
Serial No. 78364151
6
Additionally, applicant argues that if the examining
attorney has presented a prima facie case, applicant's
evidence overcomes that prima facie case. Id.
Specifically, applicant notes that its “bindings feature
innovative technology that enable a user to easily attach
to, or detach from, a snowboard, as well as to make quick
adjustments for an optimal fit, without compromising
support or control”; and that “a key feature and selling
point of Applicant's bindings is that they are easy to use
without sacrificing high performance.” Brief at p. 9.
This feature is touted in a webpage from
www.shorelinesnowboards.com, made of record by the
examining attorney with her first Office action. The
webpage itself states:
The new K2 Cinch binding is one of hte [sic]
fastest binding [sic] to get in and out of, with
all of the feel and performance of a strap
binding. The highbackfolds [sic] back and the
ankle strap lifts up ath [sic] the same time,
allowing for an opening of the system, without
compromission [sic] the snug fit or the
comfortable perfomrnce [sic] of the ankle strap.

In this regard, applicant argues that a consumer is “just
as likely to associate the indisputably suggestive ‘ease’
definition of ‘cinch’”; and that there is a double entendre
in relation to applicant's snowboard bindings. Reply at
pp. 7-9. Applicant concludes that its mark is suggestive
Serial No. 78364151
7
because none of the “meanings and connotations” noted above
“about Applicant's snowboard bindings is ‘immediately’
conveyed … [and] it takes some imagination to perceive
these thoughts.” Brief at p. 11.
Applicant has also argued that the Office has
consistently found the word “cinch” suggestive, noting “over
150 registrations or applications … include the word
‘cinch’”; and that “many of these specifically claim a
tightening function, but were nevertheless approved and
registered by the Trademark Office.” Brief at p. 12.
Applicant has submitted the TESS records for only nine
registrations with its request for reconsideration filed
October 3, 2005.
A term is deemed to be 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
of the goods or services. 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 (CCPA 1978). A term need
not immediately convey an idea of each and every specific
feature of the applicant's goods or services in order to be
considered merely descriptive; it is enough that the term
describes one significant attribute, function or property
Serial No. 78364151
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of the goods or services. In re H.U.D.D.L.E., 216 USPQ 358
(TTAB 1982); and In re MBAssociates, 180 USPQ 338 (TTAB
1973).
We first consider whether the examining attorney has
made out a prima facie case of mere descriptiveness. The
examining attorney has submitted several dictionary
definitions of “cinch,” which include “tighten: to tighten
something by constricting it”; and a “tight grip.” Also,
the examining attorney has submitted pages from several web
sites showing use of “cinch” as “tighten” or a “tight grip”
in the context of bindings used in sports in which a board
is secured to an athlete’s foot by bindings. Further, a
depiction of applicant's binding, submitted with the first
Office action, shows a binding with two straps that may be
tightened. This evidence establishes prima facie that
“cinch” describes a feature of applicant's goods, i.e.,
that tightening is required of the binding straps.
We next consider whether applicant has rebutted the
examining attorney’s prima facie case.3 The record reflects

3 In this regard, we note that the copies of the registrations
for marks containing CINCH submitted by applicant are of limited
probative value. Specifically, none of the registrations cover
goods that are similar to applicant's goods. Further, one
registration, i.e., Registration No. 2541911 for the mark CINCH-
BELT, is registered on the Supplemental Register, not the
Principal Register. Also, prior decisions of examining attorneys
“are not binding on the agency or the Board. Each case must be
Serial No. 78364151
9
that there are multiple definitions of “cinch” and that one
of such definitions is “something easily done.” The
evidence from www.shorelinesnowboards.com emphasizes the
speed with which one may get into and out of applicant's
snowboard binding – ease in getting into and out of
applicant's snowboard binding hence is a desirable feature
of applicant's bindings. Thus, “easy to use” is one
connotation that consumers would also likely attribute to
applicant's mark.
There is no evidence in the record beyond the
dictionary definitions to support any suggestion that this
“easy to use” connotation is merely descriptive, and the
examining attorney does not so contend. “It is well-
established that the determination of mere descriptiveness
must be made not in the abstract or on the basis of
guesswork.” See In re Remacle, 66 USPQ2d 1222, 1224 (TTAB
2002). Inasmuch as both the “tightening” and “easy to use”
connotations are connotations that purchasers may attribute
to the mark, and because the record does not suggest that
the “easy to use” connotation immediately describes a
feature, function, characteristic or purpose of applicant's
goods, we have doubts as to whether applicant's mark is

decided on its own merits.” In re National Novice Hockey League,
Inc., 222 USPQ 638, 641 (TTAB 1984).
Serial No. 78364151
10
merely descriptive. In such situations, we are required to
resolve those doubts in applicant's favor. In re Morton-
Norwich Products, Inc., 209 USPQ 791, 791 (TTAB 1981) (The
Board's practice is “to resolve doubts in applicant's favor
and publish the mark for opposition.”). See also Remacle,
66 USPQ2d at 1224. We do so, and find that applicant has
rebutted the examining attorney’s prima facie case of mere
descriptiveness.
Decision: The refusal to register the mark as merely
descriptive under Section 2(e)(1) of the Trademark Act is
reversed.