No. 85260060 (T.T.A.B. May. 3, 2013)

Manchester Cigarette Tobacco Limited

Trademark Trial and Appeal BoardMay 3, 2013

No. 85260060 (T.T.A.B. May. 3, 2013)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: May 3, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Manchester Cigarette Tobacco Limited _____ Serial No. 85260060 _____ James H. Walters, Esq. for Manchester Cigarette Tobacco Limited. Khanh M. Le, Trademark Examining Attorney, Law Office 113 (Odette Bonnet, Managing Attorney). _____ Before Kuhlke, Bergsman and Adlin, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Manchester Cigarette Tobacco Limited (“applicant”) filed a use based application for the mark MANCHESTER SUUM CUIQUE PLACET, in standard character form, for “cigarettes, cigars, cigarillos, cheroots; matches; ashtrays not made of precious metals; and cigarette lighters not made of precious metals and parts therefor,” in International Class 34. The English translation of SUUM CUIQUE PLACET is “One’s own possessions pleases one.” The specimen showing use of the mark is displayed below. Serial N T because by Secti also Tra o. 852600 he Tradem the specim ons 1 and demark R 60 ark Exam en does n 45 of the ule 2.51(b) ining At ot display Trademar . 2 torney ref the mark k of 1946, used to re sought to 15 U.S.C gister ap be register . §§ 1051 a plicant’s m ed as requ nd 1127. ark ired See Serial No. 85260060 3 Section 1 of the Trademark Act requires that a trademark application include a drawing of the mark; in this case, MANCHESTER SUUM CUIQUE PLACET. Trademark Rule 2.51(b) provides that “the drawing of the mark must be a substantially exact representation of the mark as intended to be used on or in connection with the goods … specified in the application …” The objection to the specimen is that the word MANCHESTER and the term SUUM CUIQUE PLACET create two separate commercial impressions rather than a unitary commercial impression. On the other hand, applicant argues that MANCHESTER and SUUM CUIQUE PLACET form a unitary commercial impression because they are typed words appearing on a uniform red background thereby tying the words together.1 The issue presented is whether the specimen of use accurately depicts a single, unitary mark engendering a unique and distinct commercial impression, or whether the specimens depict two separate marks. See In re Jordan Industries, Inc., 210 USPQ 158, 159 (TTAB 1980). See also In re Walker-Home Petroleum, 229 USPQ 773, 775-76. The issue is resolved by comparing the specimen to the drawing, and our analysis is necessarily subjective. See In re Jordan Industries, 210 USPQ at 159. The specimen of use presumably shows how the average purchaser will encounter the mark under normal marketing conditions and therefore suggests the average purchaser’s likely perception of this display of the mark. In re Magic Muffler Service, Inc., 184 USPQ 125, 126 (TTAB 1974). When 1 Applicant’s Brief, p. 5. Serial N “the sp applicat USPQ 6 S evident drawing CUIQU appears the term a castle T creates PLACE characte O similar o. 852600 ecimens d ion, refusa 49, 651 (T imply by that the . The sp E PLACET on the low SUUM C on the upp he spatiall separate c T in contr r form. ur analysi question. 60 isclose th l of regist TAB 1977) reviewing specimen ecimen dis as separ er portion UIQUE P er lid of th y separate ommercial ast to the s comport For exam at applic ration is p . the specim is not a plays the ate and d of the pa LACET ap e package and disti impressio unitary ph s with oth ple, in Jo 4 ant seeks roper.” In en and c “substant word MA istinct ele ckage in la pears in a . nct manne ns for MA rase appl er cases in rdan Indu to regis re Audi N omparing ially exact NCHESTE ments. Th rge block banner un r of presen NCHESTE icant seek which th stries, we ter two m SU Auto it to the represen R and th e word M letters. As derneath tation of t R and SU s to regist e Board ha affirmed arks in Union AG, drawing, tation” of e term SU ANCHES shown be the drawin hese elem UM CUIQ er in stan s address the refusa one 197 it is the UM TER low, g of ents UE dard ed a l to Serial No. 85260060 5 register JORDAN JIF-LOK (stylized), finding that the presentation of the terms in the following specimen did not make a unitary impression: Instead, the Board found that the manner in which “JORDAN” is presented separates the commercial impression created by that name from the impression created by “JIF-LOK,” especially when the latter is seen, as it naturally would be observed by the average customer, as part of the complete expression “JIF-LOK ‘MIRACLE’ FASTENER.” 210 USPQ at 159. The Board reached similar results where specimens did not display unitary marks in In re Audi NSU Auto Union (refusing registration of AUDI FOX and design) and In re Magic Muffler Service, Inc., 184 USPQ 125 (refusing registration of the stylized mark MAGIC MUFFLER SERVICE). Decision: The refusal to register is affirmed.