Kenneth A. Barton II

Trademark Trial and Appeal Board

Jun 6, 2002

No. 75915192 (T.T.A.B. Jun. 6, 2002)

Mailed: 06 JUN 2002
Paper No. 9
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Kenneth A. Barton II
________
Serial No. 75/915,192
_______
Mick A. Nylander, Esq. for Kenneth A. Barton II.
Amy E. Hella, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney).
_______
Before Simms, Hairston and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
Kenneth A. Barton II (applicant) filed an application
to register the mark PHASHIONS (in typed form) on the
Principal Register for goods ultimately identified as
“clothing for men, women and children, namely athletic
shirts, pants, slacks, shorts, jackets, and shoes” in
International Class 25.1
1 Serial No. 75/915,192, filed February 1, 2000. 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. 75/915,192
2
The examining attorney refused registration under
Section 2(e)(1) on the ground that applicant’s mark is
merely descriptive of the goods. 15 U.S.C. § 1052(e)(1).
When the examining attorney made the refusal to register
final, applicant filed a notice of appeal. Both applicant
and the examining attorney have submitted briefs, but no
oral argument was requested.
Before we discuss the merits of the case, we must
clarify what is the mark on appeal. The application itself
and the drawing in this case clearly show the mark for
which applicant seeks registration as PHASHIONS. In the
first Office action, the mailing label and the body of the
Office action refer to the mark as PHASHIONS. However, in
applicant’s response to this Office action, the mark is
spelled PHASIONS without a second “h.” In the next Office
action, the mailing label and the body of the Office action
again refer to the mark as PHASHIONS. In its notice of
appeal and Appeal Brief, applicant continues to refer to
its mark as PHASIONS without the second ‘h.” In her appeal
brief, the examining attorney for the first time refers to
the mark as PHASIONS. Despite these inconsistencies, it is
clear that applicant applied to register the mark
PHASHIONS. An application must contain a drawing that
“shall be a substantially exact representation of the mark
Ser. No. 75/915,192
3
as intended to be used on or in connection with the goods.”
37 CFR § 2.51(a)(2). There are no specimens in this intent
to use application nor is there anything to indicate that
at the time the mark was filed the mark was anything other
than PHASHIONS. Applicant cannot change its mark by
spelling it differently in its later filed papers. Accord
In re Hacot-Colombier, 105 F.3d 616, 41 USPQ2d 1523, 1527
(Fed. Cir. 1997) (“[T]o grant Hacot-Colombier the benefit
of the priority date would allow a party seeking the
benefit of a foreign priority date to file any drawing,
then conform the drawing to the foreign filing at a later
date. The statutory and regulatory rules are not so
loose”); Visa International Service Association v. Life-
Code Systems, 220 USPQ 740, 743 (TTAB 1983) (“The general
test of whether an alteration is material is whether the
mark would have to be republished after the alteration in
order to fairly present the mark for purposes of
opposition”). Therefore, since applicant has clearly
applied to register the mark PHASHIONS, we will only
discuss that mark. If applicant intends to seek
registration for another mark, it must file a new
application for that term.
In her final Office action, the examining attorney held
that “PHASHIONS is a novel spelling of the word FASHIONS”
Ser. No. 75/915,192
4
(p. 2) and she submitted evidence that “fashions” is a term
used to describe clothing. First, the examining attorney
supplied a definition of fashion as meaning “something,
such as a garment, that is in the current mode: Her dress
is the latest fashion.”2 In addition, the evidence included
printouts showing that the term “fashion” is used to refer
to clothing. Examples from these printouts include:
Barbara Glass, WMAQ-Channel 5’s fashion editor, will
host the show, which features fashions from stores in
the Gurnee mall.
Chicago Daily Herald, March 18, 2001, p. 2.
As commentator for fashion shows on the main stage, she
will focus on the fun and romance of fashions. Salsa
dancing and hip music will add flair to the parade of
clothing.
Knoxville News-Sentinel, March 13, 2001, p. B1.
The fashion show will feature historically inspired
clothing from the American Girls Collection. Local
models will present fashions while commentary and
period music brings the past alive.
The Tennessean, October 19, 2000, p. 3D.
Because of rap’s influence on street fashions -–
typically baggy, brightly colored clothing – it has
become common for apparel designers to advertise
through concert sponsorship.
Baltimore Sun, August 6, 2000, p. 1D.
The event will feature fashions from Canal Clothing.
Ft. Worth Star-Telegram, March 10, 2000, p. 6.
The show will reflect the tournament’s entry into the
new millennium with futuristic fashions. One portion
of the show featuring animal print clothing will
include a live leopard.
2 The American Heritage Dictionary of the English Language
(1992).
Ser. No. 75/915,192
5
News and Observer (Charlotte, NC), February 27, 2000,
p. A1.
Fashion Cents and One Price Clothing Store, both of
which offer low-to moderate-priced women’s fashions.
Virginian-Pilot, January 21, 2000, p. D1.
The examining attorney also included copies of
registrations in which the term “fashion” was disclaimed
for various clothing items. The examining attorney found
that the term PHASHIONS “does give the commercial
impression of FASHIONS because of the commonality of the
spelling –ASHION” (final Office action, p. 2) and held the
term was merely descriptive for applicant’s clothing.
Applicant, on the other hand, argues primarily that its
mark creates a commercial impression that is different from
the term “fashion” and that it is not merely descriptive.3
We agree with the examining attorney that the term
PHASHIONS is merely descriptive, and we, therefore, affirm
the refusal to register the mark under Section 2(e)(1) of
the Trademark Act.
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
Ser. No. 75/915,192
6
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 need only
describe a single significant quality or property of the
goods. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009
(Fed. Cir. 1987); Meehanite Metal Corp. v. International
Nickel Co., 262 F.2d 806, 120 USPQ 293, 294 (CCPA 1959).
We start by noting that there is ample evidence in the
record to support the examining attorney’s conclusion that
the term “fashion” is at least descriptive for clothing
items. The dictionary definition, printouts, and
registrations demonstrate that the term “fashion” is a term
commonly used to describe clothing. The only question in
this case is whether the term “phashions” is likewise
merely descriptive for clothing items. We find that
prospective purchasers would recognize “phashions” as
simply a slight misspelling of the term “fashions.” The
Supreme Court has held that:
The word, therefore is descriptive, not indicative of
the origin or ownership of the goods; and being of
3 Underlying applicant’s argument is its misspelling of the mark
identified in its intent to use application.
Ser. No. 75/915,192
7
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
“is the phonetic equivalent of the words ‘HIGH TORQUE’”);
and In re Organik Technologies Inc., 41 USPQ2d 1690 (TTAB
1997) (ORGANIK).
Similarly here, applicant’s mark merely substitutes
the letters “ph” for the letter “f.” The letters “ph”
could easily be pronounced the same as the “f” in fashions.
See 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.
Ser. No. 75/915,192
8
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”); Keller
Products, Inc. v. Rubber Linings Corp., 213 F.2d 382, 101
USPQ 307 (7th Cir. 1954) (KOVE equivalent of descriptive
term “cove). When confronted with the word PHASHIONS on
clothing, customers would recognize the term as a simple
misspelling of the term “fashion” commonly used to describe
clothing.
Therefore, applicant’s applied-for mark PHASHIONS is
merely descriptive for applicant’s clothing for men, women
and children.
Decision: The examining attorney’s refusal to
register the mark PHASHIONS on the ground that it is merely
descriptive of the identified goods is affirmed.