Kenmark Optical Co.

Trademark Trial and Appeal Board

Mar 27, 2003

No. 76203682 (T.T.A.B. Mar. 27, 2003)

Mailed: 27 MAR 2003
Paper No. 13
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Kenmark Optical Company
________
Serial No. 76/203,682
_______
Jack A. Wheat of Stites & Harbison PLLC for Kenmark Optical
Company.
Paul F. Gast, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
_______
Before Cissel, Hanak and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
Kenmark Optical Company (applicant) filed an
application to register the mark SPORTZ (in typed form) on
the Principal Register for goods ultimately identified as
“eyewear, namely, goggles for use in a wide variety of
indoor and outdoor athletic activities” in International
Class 28.1
1 Serial No. 76/203,682, filed February 2, 2001. The application
contains an allegation of a bona fide intention to use the mark
in commerce.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser. No. 76/203,682
2
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.
§ 1052(e)(1). When the examining attorney made the refusal
to register final, applicant filed a notice of appeal.
The examining attorney’s2 position is that the primary
significance of the term “SPORTZ” in relation to the
identified goods is a reference to athletic activities.
“The goggles are clearly worn for use in athletic
activities. As such they are ‘sports goggles.’” Brief at
2. Applicant, on the other hand, maintains that it is
“only claiming extremely narrow protection for the peculiar
spelling SPORTZ” and the term is a double entendre “because
it has more than one meaning. Rather than solely athletic
endeavors, SPORTZ is synonymous with ‘wears,’ ‘shows off’
or ‘has on.’” Brief at 3 (emphasis in original).
We affirm.
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics of
the goods or services or if it conveys information
regarding a function, purpose, or use of the goods or
services. In re Abcor Development Corp., 588 F.2d 811, 200
2 The current examining attorney was not the original examining
attorney in this case.
Ser. No. 76/203,682
3
USPQ 215, 217 (CCPA 1978). See also In re Nett Designs,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). We
look at the mark in relation to the goods or services, and
not in the abstract, when we consider whether the mark is
descriptive. Abcor, 200 USPQ at 218. Courts have long
held that, to be “merely descriptive,” a term must only
describe a single significant quality or property of the
goods. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010
Fed. Cir. 1987); Meehanite Metal Corp. v. International
Nickel Co., 262 F.2d 806, 120 USPQ 293, 294 (CCPA 1959).
The examining attorney has included evidence of third-
party registrations that the term “sports” is merely
descriptive when applied to eyewear used in a variety of
indoor and outdoor athletic activities. Registration Nos.
2,248,822; 1,916,969; and 2,143,223 all contain a
disclaimer of the term “sport[s]” when used in association
with eyewear and eyewear-related retail services. In
addition, applicant’s website describes its SPORTZ eyewear
as:
Impact tested frames designed just for the high-energy
sports crowd. There’s nothing like the added security
of shock absorbing eyewear.
Applicant itself asserts that it is only claiming
protection for the “peculiar spelling SPORTZ” (Brief at 3)
and that the term SPORTZ “is not the word ‘sports’ used in
Ser. No. 76/203,682
4
a merely descriptive sense” (Brief at 2). Therefore, there
is no serious dispute that the term “sports” is merely
descriptive of eyewear used in athletic activities.3
The next question is whether the slight misspelling of
the term “sports” to “sportz” results in the term becoming
not merely descriptive for the goods. The Supreme Court
has held that:
The word, therefore is descriptive, not indicative of
the origin or ownership of the goods; and being of
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).
Other cases have recognized that a slight misspelling
does not change a merely descriptive term into a suggestive
term. See 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’”); Hi-Shear Corp. v. National Automotive
Parts Association, 152 USPQ 341, 343 (TTAB 1966) (HI-TORQUE
3 Indeed, applicant has offered to disclaim the term “sports.”
Request for Reconsideration at 1.
Ser. No. 76/203,682
5
“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”").
Similarly here, applicant’s mark merely spells the
word “sports” with a “z” instead of a final “s.” This
simple misspelling does not change the commercial
impression or the way prospective purchasers would view the
term. Fleetwood Co. v. Mende, 298 F.2d 797, 132 USPQ 458,
460 (CCPA 1962) (“TINTZ [is] a phonetic spelling of
‘tints’”). See also 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); Norsan Products Inc. v. R.F.
Schuele Corp., 286 F. Supp. 12, 159 USPQ 689 (E.D. Wis.
1968) (KUF’N KOLAR equivalent of “cuff and collar”).
Applicant argues that the term “sports” has a double
entendre because it also can mean to wear apparel or
accessories. If a misspelling “involves more than simply a
misspelling of a descriptive or generic word,” it may not
be merely descriptive. In re Grand Metropolitan
Ser. No. 76/203,682
6
Foodservices Inc., 30 USPQ2d 1974, 1975 (TTAB 1994)
(Applicant’s “MufFuns” (stylized) mark has a different
commercial impression than the generic term “muffin”). See
also In re Priefert Mfg. Co., 222 USPQ 731, 733 (TTAB 1984)
(Applied-for mark “HAY DOLLY” reminiscent of the famous
Broadway hit “HELLO DOLLY”). Here, the term “sports” or
“sportz,” when applied to eyewear used in athletic or
sporting events, does not create a significant double
entendre. See In re Volvo Cars of North America Inc., 46
USPQ2d 1455, 1460 (TTAB 1998) (“We hasten to add that to
the extent that applicant's designation DRIVE SAFELY
engenders some minor double entendre, this should not
result in registration inasmuch as the primary significance
of the phrase remains that of a commonplace safety
admonition”). Similarly, while applicant’s term could have
other meanings, applicant’s goods are, in effect, sports
goggles. The term “sports” or “sportz,” when used with
these goods, would immediately inform prospective
purchasers that, in the words of applicant’s website,
applicant’s eyewear is “designed for the high-energy sports
crowd.” See Thompson Medical Company, Inc. v. Pfizer, 753
F.2d 208, 225 USPQ 124, 131 (2d Cir. 1985) (SPORTSCREME
held descriptive for topical analgesic. “No exercise of
the imagination is necessary for the public to understand
Ser. No. 76/203,682
7
that the product is a cream useful in connection with
sports. Marks that describe the use to which a product is
put are descriptive.”)
Therefore, applicant’s mark SPORTZ is merely
descriptive under Section 2(e)(1) of the Trademark Act of a
feature or characteristic of applicant’s goggles used in a
wide variety of indoor and outdoor athletic activities.
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.