Leng-d’Or, S.A.

Trademark Trial and Appeal Board

May 29, 2003

No. 75232739 (T.T.A.B. May. 29, 2003)

Mailed:
May 29, 2003
Paper No. 45
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re LENG-D’OR, S.A.
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Serial No. 75/232,739
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Barbara H. Lowenthal of Gottlieb Rackman & Reisman, P.c. for
LENG-D’OR, S.A.
Kimberly K. Frye, Trademark Examining Attorney, Law Office 104
(Sidney Moskowitz, Managing Attorney).
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Before Simms, Seeherman and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
LENG-D’OR, S.A. seeks registration on the Principal
Register for the mark as shown below:
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75/232,739
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for services recited as “commercial wholesale business
management services in the field of snack food,” in
International Class 35.1
Several issues relating to the form in which the mark was
represented and to the details of an acceptable recitation of
services dominated prosecution during the intent-to-use phase
of examination. However, the sole issue before the Board in
the instant appeal is whether the specimens of record
demonstrate use of this mark in connection with the services
set forth in the statement of use, as recited above.
While applicant’s counsel, in her appeal brief, argues
the appropriateness of the specimens under previous cases
decided by this Board,2 this argument misses the point of the
refusal to register. As noted by the Trademark Examining
Attorney, the real problem here is that the recitation of
services in the application does not accurately reflect
applicant's activities:
As is clear from the brochures, the applicant manufactures
snack food. The brochures make repeated reference to the
1 Application Serial No. 75/232,739 was filed on January 29, 1997
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce. A Notice of Allowance issued on September 29,
1998, and applicant filed a Statement of Use under 37 C.F.R. §2.88
on March 24, 1999, claiming use at least as early as July 11, 1964
and use in commerce between Spain and the United States at least as
early as March 17, 1995. The file now contains verified specimens
described as labels for goods as well as brochures describing
applicant’s operations and its various snack pellets.
2 For example, In re Metriplex, Inc., 23 USPQ2d 1315 (TTAB 1992),
and In re Red Robin Enterprises, Inc., 222 USPQ 911 (TTAB 1984).
Serial No. 75/232,739
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applicant’s snack food products. [Trademark Examining
Attorney’s footnote 2 – “This conclusion is further
supported by the specimen originally submitted with the
statement of use; a label used on applicant's products.]
The photographs in the brochures are of the applicant’s
manufacturing plant and the raw ingredients used in making
the snack pellets. The applicant’s mark appears on the
first page of the brochures above the tagline SNACK FOODS
and under the slogan, LENG-D'OR: A WORLD OF PELLETS.
Following the text of the brochures are separate pages for
the applicant’s individual snack food items, containing
nutritional and preparation information for each. At the
bottom of each of these pages the applicant’s mark appears
above the slogan "A world of pellets". Thus, the brochure
is clearly an advertisement for the applicant’s snack food
products and, at best, the manufacture thereof. Indeed,
the applicant’s own assertion is that the specimen shows
the Applicant is “involved in providing services in
connection with snack foods.” Applicant's Brief at 6.
This is insufficient to render the specimens acceptable to
show use of the mark in conjunction with the commercial
wholesale business management services listed in the
statement of use.
Even accepting the applicant’s position that the specimens
show use of the mark in connection with snack food
manufacturing, production and distribution services, the
brochures fail to show use of the mark in connection with
the services listed in the statement of use … .
(Trademark Examining Attorney’s appeal brief, unnumbered p. 3).
Simply stated, throughout the prosecution of this
application, the recitation of services has been limited to
“business management services.” This language implies that
applicant is providing the service of managing the business
operations of another. However, the specimens of record
demonstrate clearly that applicant is in the business of
developing, manufacturing and marketing bulk quantities of
food pellets for further processing into snack foods.
Managing one’s own production plant and/or global distribution
Serial No. 75/232,739
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operations is not a service separate and apart from
applicant’s primary services, which are nowhere recited
herein.
Accordingly, while the current specimens of record would
be acceptable to support specifically enumerated goods and/or
services,3 such identifications and/or recitations would not be
within the scope of the original recitation of services.
Hence, the specimens of record fail to demonstrate use of this
mark in connection with the services set forth in the
statement of use.
Decision: The refusal to register is affirmed.
3 For illustrative purposes, we note that the options for
applicant, in re-filing another application with the United States
Patent and Trademark Office for registration of this mark, might
well include, inter alia, recitations of services, or even an
identification of goods, like the following:
•= “Food products, namely processed potato, wheat, corn, rice
and other cereal-based snack pellets sold in bulk form to
commercial food manufacturers,” in International Class 30
•= “Wholesale distributorships featuring snack food pellets,”
in International Class 35
•= “Manufacturing snack food pellets to the order and/or
specification of others,” in International Class 40