Link Snacks

Trademark Trial and Appeal Board

Aug 14, 2007

No. 78566714 (T.T.A.B. Aug. 14, 2007)

Mailed: August 14, 2007
UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Link Snacks, Inc.
___________

Serial No. 78566714
___________

Scott W. Johnston of Merchant & Gould P.C. for Link Snacks,
Inc.

Rebecca Smith, Trademark Examining Attorney, Law Office 110
(Chris A.F. Pedersen, Managing Attorney).
____________
Before Zervas, Taylor, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:
This appeal involves the examining attorney’s final
requirement for an acceptable identification of goods. For
the reasons set out below, we reverse.
The subject application was filed by Link Snacks, Inc.
on February 14, 2005, seeking registration of the mark FEED
YOUR WILD SIDE (in standard characters) for “meat snacks” in
international class 29, and alleging a bona fide intent to
use the mark in commerce on the identified goods. In her
first office action, the original examining attorney made
one requirement:
IDENTIFICATION OF GOODS
The identification of goods is
unacceptable as indefinite because the
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 78566714
2
wording is overbroad and could include
goods in other classes. TMEP section
1402.01. The applicant may adopt the
following identification, if accurate.
Meat snacks, namely, _____________
[indicate specific goods].
International Class 29.

Applicant responded, declining to further specify its
goods. Applicant pointed out that “meat snacks” is not an
indefinite identification of goods, and that both applicant
and others have previously been granted registrations
containing the term in the identification of goods. The
examining attorney then approved the application for
publication. Nonetheless, the approval was subsequently
withdrawn. A newly-assigned examining attorney explained
that she had “been informed that the identification of goods
is not acceptable as is and the Office cannot accept the
current identification of goods.”1 Accordingly, the
examining attorney reiterated and made final the earlier
requirement for a more specific identification of goods,
adding only that the term “meat snacks” could include goods
properly classified in International Class 30. The
examining attorney did not address the arguments applicant
raised in its response to the first office action, nor did

1 In her brief, the examining attorney notes that “the
application was withdrawn from publication and was returned to
[her] from the Administrator for Classification after [the
Administrator’s] review of the Official Gazette.” Br. at 2.
Serial No. 78566714
3
she introduce any evidence in support of the assertion that
some of the applicant’s goods could include goods outside of
International Class 29.
Following the final refusal, applicant requested
reconsideration of the final requirement, again arguing that
“meat snacks” is the common commercial name of its goods,
and that the USPTO has previously accepted the disputed
term. Attached to applicant’s request for reconsideration
were a number of web pages demonstrating commercial use of
the term “meat snacks,” and copies of various trademark
registrations and applications in which the goods include
“meat snacks.” Once again, the examining attorney
maintained the refusal, denying the request for
reconsideration. Again, the examining attorney did not
address applicant’s evidence or arguments, nor did she offer
any evidence in support of the refusal.
This appeal followed.2
Preliminary Matter
Before turning to the merits of this appeal, we note
that applicant filed with its appeal brief approximately 170

2 We note that applicant’s brief includes a request that, in the
event that the examining attorney’s requirement is upheld, the
application be remanded to allow applicant an opportunity to
submit an amendment. Brief at 2. For applicant’s information,
an application which has been decided on appeal will generally
not be reopened, except to submit a disclaimer. Trademark Rule
(cont’d)
Serial No. 78566714
4
pages of evidence. It appears that this information may be
partially or wholly duplicative of the evidence attached to
applicant’s request for reconsideration.
The record in an appeal closes upon the filing of a
notice of appeal and the “Board will ordinarily not consider
additional evidence filed with the Board by the applicant or
by the examiner after the appeal is filed.” Trademark Rule
2.142(d); See generally TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 1207 (2d ed. rev. 2004). We note that the
examining attorney has not discussed this material in her
brief. Accordingly, we have not considered the untimely
evidence attached to applicant’s brief on appeal.3
Discussion
Issue on Appeal
According to the examining attorney,
The identification of goods is
unacceptable as indefinite because the
wording is overbroad and could include
goods in other classes. TMEP section

2.142(g). Because we reverse the requirement, applicant’s
request for remand is moot.
3 Because submission of these materials was improper, we have not
undertaken the onerous task of comparing each of the items
submitted on appeal with evidence which had been timely submitted
during examination.
To the extent that the evidence attached to applicant’s brief
is the same as that previously submitted, it is already of record
as part of the application file, and its submission was
unnecessary. See ITC Entertainment Group Ltd. v. Nintendo of
America Inc., 45 USPQ2d 2021, 2022-23 (TTAB 1998) (submission of
duplicative papers is a waste of time and resources, and is a
burden upon the Board).
Serial No. 78566714
5
1402.01. The applicant must clarify the
type of meat snack they provide by
common commercial name since some of
these goods could be classified in class
30. The applicant may wish to consult
the on-line identification manual on the
PTO homepage for acceptable common names
of goods.

Final Office Action. We accordingly understand that the
examining attorney rejected applicant’s identification of
its goods because, as stated, the goods could fall into more
than one class, and that is the issue we address on appeal.4
Applicant’s Prior Registrations
We first address applicant’s argument that both it and
its competitors have previously received trademark
registrations for goods described as “meat snacks.” With
its request for reconsideration, applicant submitted a
number of registrations and pending applications in which
the term is used, and applicant has maintained its argument
that the USPTO has historically accepted “meat snacks” as an
acceptable identification of goods, and that this “policy”
should be continued here. Although a number of

4 There is an unfortunate ambiguity in the word “indefinite” as
sometimes used by the examining corps in discussing
identifications of goods or services. The word can variously
refer to clarity (whether the identification of goods can be
understood), scope (whether a term is so broad as to not give
fair notice of the goods upon which mark is used), or
classification (whether the goods can be properly classified in
one international class). While these concepts are related, the
only explanation the examining attorney provided for the refusal
in this case referred to the latter of these issues, and we thus
(cont’d)
Serial No. 78566714
6
applications5 and registrations have been submitted by
applicant, we note that approximately ten of the
registrations include the term “meat snacks” without
significant further qualification.
Our primary reviewing court recently addressed the
question of whether the USPTO’s prior registration of marks
using an allegedly indefinite (because it could identify
goods in more than one class) term precludes the Office from
later asserting that such language is unacceptable. In re
Omega SA, ___ F.3d ___, ___ USPQ2d ___ (Fed. Cir. 2007)
(precedential) (No. 06-1234; slip op. available at
www.fedcir.gov). In Omega, the examining attorney required
further definition of the term “chronographs” (the examining
attorney suggested “chronographs for use as watches”) on the
ground that the term could include watches in International
Class 14, as well as time recording instruments in
International Class 9.
Omega agreed that “chronographs” could include goods in
International Class 9. However, it declined to further
narrow the term in its new application, arguing that the

consider that to be the ground for her final requirement.
5 Pending applications are of little or no probative value. As a
general matter, a pending application is evidence of nothing more
than its filing. See Merritt Foods Co. v. Americana Submarine,
209 USPQ 591, 594 (TTAB 1980). As applicant is aware from the
history of this application, approval of an application for
publication is no guarantee that the identification of goods
(cont’d)
Serial No. 78566714
7
USPTO’s requirement was inconsistent with the Office’s prior
registration of several of Omega’s other marks in which the
goods were described as “chronographs.”
Following affirmance of the refusal by the Trademark
Trial and Appeal Board, applicant appealed to the United
States Court of Appeals for the Federal Circuit, where it
also argued that rejecting “chronographs,” without further
qualification would affect the validity or scope of its
previous registrations. In affirming the Board’s decision,
the Court agreed with the Board that
the scope of the term "chronographs" is
ambiguous for registration purposes, for
it includes both watches and time
recording devices. Omega states that
the only chronographs with which it uses
the mark are "watches." The PTO has
discretion to determine whether and how
a trademark registration should include
a more particularized statement of the
goods for which the mark is be used; in
the circumstances here the PTO did not
abuse its discretion in determining that
the term "chronographs" in the
registration should be restricted to
those "for use as watches." No basis
for challenging this requirement has
been shown. Although Omega expresses
concern that this requirement may
adversely affect its prior trademark
registrations for "chronographs" that
are not limited to "watches," the PTO
has assured the court that the
imposition of this requirement will not
effect existing registrations.

cannot be questioned or that the application will register as is.
Serial No. 78566714
8
In re Omega SA, slip op. at 6.
Accordingly, the mere fact that applicant and others
have previously been successful in registering applications
in which “meat snacks” was accepted as the identification of
goods does not preclude the USPTO from subsequently
determining that more specificity is required. As was the
case in Omega, we note that such a requirement does not in
any way affect the validity or scope of any previous
registration, and that the requirement for additional
specificity in a later application is not a basis for
cancellation of a previous registration using the term.
Meaning and Scope of “Meat Snacks”
Although Omega is relevant to the case at bar, it is
not sufficient to dispose of the case before us. In Omega,
the applicant agreed with the USPTO that the term
“chronographs” could include goods in both International
Class 9 and 14, but argued that the term was acceptable
anyway because of its prior registrations.6 In this case,

6 The applicant in Omega also argued that the USPTO should view
applicant’s designation of International Class 14 as limiting the
goods to that class. The international classification system is
for administrative and searching purposes, but does not determine
the scope of the registrant’s rights. Omega, slip op. at 5,
citing Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 975, 29
USPQ2d 1771 (Fed. Cir. 1993). Thus, the fact that applicant has
classified its goods in International Class 29 does not limit the
term “meat snacks” in this application to goods in that class.
While clearly related, the identification and classification of
goods and services are separate requirements, done for different
(cont’d)
Serial No. 78566714
9
applicant has not agreed that “meat snacks” includes any
goods outside of International Class 29.
In reviewing the propriety of the final requirement at
issue in this appeal, we must therefore determine whether
the term “meat snacks” has a particular meaning, and if so,
the scope of the term as used in the application. One
meaning of the term could certainly include anything made
(in whole or in part) of “meat” which could be eaten as a
“snack.” Although not clearly articulated, this appears to
be the position taken by the examining attorney. See Ex.
Br. at 2 (“‘meat snacks’ could also include … sandwiches
containing meat, meat pies, etc., which are in class 30.”).
Thus construed, “meat snacks” could include anything from
chicken salad to beef burritos (International Class 29 and
30, respectively).
In the absence of further evidence, we might be
inclined to agree with this position. However, applicant
here has argued that the term “meat snacks” has a well-
defined meaning in applicant’s industry, and applicant
submitted substantial evidence with its request for
reconsideration supporting this point, as demonstrated by

purposes, and each must be correct in its own right. See Jean
Patou, 29 USPQ2d at 1773 (“The benefits of a … registration apply
with respect to the goods named in the registration without
regard to the class or classes named in the registration.”)
Serial No. 78566714
10
the following excerpts:7
SARA LEE CORPORATION TO EXPAND MEAT
SNACKS BUSINESS WITH ADDITION OF TRAIL’S
BEST BRAND
CHICAGO (October 15, 2001) – Sara Lee
Corporation announced today that it has
agreed to acquire the assets of FJS,
Inc., a private holding company that
owns Trail’s Best Snacks, Inc., the
fourth largest producer of meat snacks
and beef jerky in the United States.

* * *

“Meat snacks sales have been increasing
at a double-digit rate for the last
eight years, and the acquisition of
Trail’s Best Snacks supports Sara Lee’s
strategy….”

“Sara Lee entered the meat snacks
category earlier this year with the
introduction of Jimmy Dean meat snacks
in select markets, and our research
clearly indicates that marrying the
Jimmy Dean brand with great-tasting,
high quality meat snacks is an excellent
match.”

www.saralee.com/newsroom/news_release_popup.aspx?id=70
(4/13/2006).
Meat-snack maker selects Prescient
Applied Intelligence tech package
WTN News – Published 07/27/05

* * *

Link Snacks sells a variety of beef
jerky snacks under the Jack Link’s brand
and reports to be the fastest-growing

7 All of the evidence referred to was submitted by applicant in
connection with its request for reconsideration of the examining
attorney’s final requirement.
Serial No. 78566714
11
global meat snacks company.

http://wistechnology.com/article.pho?id=2051 (4/13/2006).
About King B Meat Snacks
King B Jerky, now King B Inc., was
established in 1968. The owner desired
to bring back the flavor of the West in
real steak jerky. * * *

Over the years, King B has adopted some
new recipes that are considered sugar
cured products. This is for the urban
people who value [a] meat snack but
desire a different flavor profile. The
ethnic mix of people in the United
States has resulted in a wide variety of
flavors available in meat snacks.
Teriyaki, Hot & Spicy, BBQ, Chile Hot,
etc., have found a niche in the market
place due to the demand of different
cultures and peoples. The information
age, as well as ease of travel, has
influenced the meat snack market.
Customers are demanding flavors that are
familiar to them and their different
cultures. With a world wide market,
King B has created an extended offering
of flavors and styles of quality meat
snacks.

www.jerkysupply.com/about_king_b_meat_snacks.html
(4/13/2006).
Special Reports
http://www.candybuyer.com/reports
Meat Snacks

Beef sticks, jerky, sausage – meat
snacks in every form are enjoying
growth. Professional Candy Buyer
investigates what buyers need to know to
cash in on the profits.

The meat snack market has come a long
way from its historic position as the
snack of choice for truckers and
outdoorsmen. Today’s beef sticks, jerky
and other cured meat products are
Serial No. 78566714
12
flourishing as they gain acceptance from
mainstream consumers, including moms and
kids.

* * *

Although new meat snack items continue
to hit the marketplace, meat sticks and
jerky maintain a strong hold on total
sales.

* * *

In an attempt to broaden the consumer
base of its products, New Glarus Foods
offers Honey Ham sticks, says Gary Hess,
regional sales manager. According to
Hess, women prefer Honey Ham to beef
sticks because of the product’s mild
flavoring and taste.

* * *

GoodMark recently launched Rough Cut, a
brand made from whole muscle beef. * * *
With Rough Cut, the company is
positioned to grab a substantial share
of the growing kippered beef steak
component.

* * *

[J]erky is to [the] western area what
pepperoni is to Cleveland. * * *
[T]eriyaki flavor is popular in New
England, while peppered, and hot and
spicy flavors have strong appeal in the
south and southwest. * * * Kippered beef
steaks and beef and cheese, however,
seem to have universal appeal….

www.retailmerchandising.net/candy/reports/meat.asp
(4/13/2006).
In addition to use of the term “meat snacks” by
industry insiders, applicant’s evidence also indicates use
of the term on websites directed to the general public:
Serial No. 78566714
13
Welcome to the official website of Wild
Bill’s Foods, Inc.
Based in Lancaster, PA, we produce the
world famous Wild Bill’s meat snacks.
Visit Our Ranch to discover more about
Wild Bill’s mouth watering beef jerky.
And if that works up an appetite, step
into Wild Bill’s General Store to order
some of the best meat snacks in the
world.

www.wildbillsfoods.com (4/13/06).
Ostrich Meat Snacks, 10 pack
Description: Ostrim Ostrich Sticks are a
Healthy Alternative Meat Snack! Ostrim
Ostrich Meat Snacks: – 95% Fat Free – 0%
Saturated Fat – High Protein ….

www().shopping.com/xPC-Ostrich_Meat_Snacks_10_Pack
(4/13/2006) (comparing prices of Ostrich meat snacks from
various retail outlets).
Natural Meat Snacks
Let’em eat cake, at someone else’s
house. For a great nutritional snack at
your house, you’ve just got to taste
some of these products.

Don’t forget to look for our new Beef
Jerky products, they taste great and are
good for you!

SUB CATEGORIES FEATURED ITEM
• These Sticks Were
Made for Munchin’
• Best Jerky This
Side of Heaven
• Browse The Entire
Category
Shelton’s Honey Turkey
Jerky 4 Oz.
Made with Shelton’s free-
range, antibiotic-free
turkey breast meat…. This
is our first sweet and
soft jerky.

www.sheltons.com/cgi-bin/sheltons/results.html?mv_arg=snacks
(4/13/2006).
WELCOME TO BIG CHIEF MEAT SNACK
Serial No. 78566714
14
When you bite into Big Chief Meat
snacks, you taste the difference!
Chewy, mouth watering, nutritional beef
snacks burst with flavor from the first
bite. Our jerky and beef sticks are
carefully tended during the curing
process to insure each portion maintains
that delicious, mouth-watering, full
bodied flavor that comes only from lean
cut 100% Alberta beef.

www.bigchiefbeefjerky.com (4/13/2006).
The Outpost Mall
Proudly Endorses the Premium Quality
Exotic Meats [sic] Snack Sticks From:

Safari Snacks [graphic omitted]

Each of our 25 varieties of exotic and
wild game snack sticks weigh
approximately 2 ounces.

* * *

We offer traditional with a twist like
Bourbon Bison and Venison Bratwurst to
the more exotic tastes of game meats
such as Jalapeno Yak, Cajun Alligator,
BBQ Boar and Elkwurst. We also carry 6
varieties of gourmet foul including
Pheasant with Cranberries and Ostrich
with Dates. We even carry the elusive
but tasty Jackalope.

www.theoutpostmall.com/safari_snack_sticks.htm (4/13/2006).
Applicant’s evidence convinces us that the term “meat
snacks” is a known term in applicant’s field – and is also
known to consumers – as a designation for a variety of
closely-related food items, including jerky (which can be
made from a variety of meats), kippered beef, meat sticks,
snack sausages, teriyaki sticks, beef and cheese sticks, and
pickled sausages. Although the evidence of record does not
Serial No. 78566714
15
include a precise definition of “meat snacks,” it appears
that the term is generally used consistently8 to refer to
the listed items and variations thereof.
For the first time in her brief, the examining attorney
hypothesized that the term “‘meat snacks’ could also include
… sandwiches containing meat, meat pies, etc., which are in
class 30.” Brief at 3. However, the examining attorney did
not provide any evidence in support of the proposition that
sandwiches, meat pies, or any other goods not properly
classified in International Class 29 are included in “meat
snacks,” as the term is commonly used and understood.
While a term in an identification of goods and services
should be read to have its ordinary meaning, See TRADEMARK
MANUAL OF EXAMINING PROCEDURE (TMEP) § 1402.01 (4th ed 2005); see
also TMEP §§ 1402.05 (accuracy of identification),
1402.07(a) (scope of identification for amendment purposes),
this determination cannot be made in a vacuum. Where a term

8 There were a few exceptions. Several web pages in the record
included pigs’ feet in the “meat snack” category, and one
included “pickled eggs” under that heading. The web sites in
question were third-party sites selling a variety of goods, and
do not appear to be the web-sites of “meat snack” producers. It
cannot be determined with certainty from the record evidence
whether such items are included within the definition of “meat
snacks,” or whether their inclusion in the web evidence was
simply the web equivalent of a grocer’s placing similar or
complementary products near each other on a shelf in a store. In
any event, it appears that both pigs’ feet and pickled eggs are
properly classified in International Class 29, and the examining
attorney has made no argument to the contrary.
Serial No. 78566714
16
has a generally-understood meaning, it is inappropriate to
read an ambiguity into that meaning by ignoring how the term
is actually used in commerce. Examples of this fairly
obvious principle abound in our language. For instance,
“baby doll pyjamas” are not costumes for dolls, and “mouse
pads” are not accessories for a rodent. Like the term “meat
snacks,” “baby doll pyjamas” or “mouse pads” could be
construed to include goods in more than one class, if we
ignore how the term is actually used in commerce. Yet each
item is listed in the U.S. Acceptable Identification of
Goods and Services Manual9 as an acceptable identification
of goods.
In this case, there is simply no record evidence that
any good properly classified outside of International Class
29 is ever called a “meat snack.” To the contrary, we find
applicant’s evidence adequate to establish that the term has
a specific meaning, known both in applicant’s industry and
by the purchasing public, and that it refers only to goods
that are properly classified in International Class 29. We
note again that throughout the prosecution of the
application, the examining attorney did not dispute or even
discuss applicant’s evidence, nor did she introduce any
evidence to support her refusal.

9 Available at www.uspto.gov.
Serial No. 78566714
17
As noted above, the examining attorney indicated that
“the application was withdrawn from publication and was
returned to [her] from the Administrator for Classification
after [the Administrator’s] review of the Official Gazette.”
Br. at 2. The examining attorney further notes that she
consulted with the current Administrator
for Classification of goods and services
and was instructed that the current
Office policy regarding such language
and classification requires further
clarification of this particular
wording. The decision as to the proper
classification of goods or services is a
purely administrative matter within the
sole discretion of the United States
Patent and Trademark Office. In re Tee-
Pak Inc., 164 USPQ 88 (TTAB 1969).
Since the decision was made that correct
classification could not be made because
of the overbroad nature of the
identification of goods, it was required
that a clarification of what “meat
snacks” are be obtained.

Brief at 4.10
As we see it – and as explained throughout examination
by the examining attorney – the issue in this appeal is not
a question of classification, over which the Board normally
has no authority, see In re Tee-Pak, Inc., 164 USPQ at 89,
but one of identification. Applicant does not dispute that

10 It is not clear when the examining attorney spoke to the
Administrator but it is worth noting that at the point when the
application was withdrawn from publication, applicant had not yet
submitted its evidence showing the use and meaning of “meat
snacks” in the food industry and in the retail market.
Serial No. 78566714
18
“meat pies” and “sandwiches” (to use the examining
attorney’s examples) are in International Class 30, rather
than 29. Instead, the issue is whether such items are “meat
snacks” at all.
We also note that the USPTO issues (and revises)
guidelines from time to time on various issues applicable to
the identification and classification of goods in trademark
applications. See, e.g. TMEP § 1402 (4th ed. 2005); ID
Manual Notices, http://tess2.uspto.gov/netahtml/notices.html
(last visited Aug. 4, 2007). The examining attorney did not
cite – and we are otherwise unaware of – any specific
guidance that the USPTO has issued relevant to the
particular goods at issue here. Were we considering an
identification for which the USPTO had issued relevant
guidelines, such as “computer programs,” see TMEP
§ 1402.03(d), or “on-line services,” ID Manual Notices, such
guidance would be entitled to very great weight.
While it is proper to give the Trademark Examining
Operation considerable latitude in determining the
acceptability of language in identifications of goods and
services, deference alone cannot overcome substantial,
unrefuted, and convincing evidence such as that submitted by
applicant in this case.
Decision: The examining attorney’s final refusal is
accordingly REVERSED.
Serial No. 78566714
19

.oOo.