Maria C. LaMon

Trademark Trial and Appeal Board

Jul 30, 2014

No. 76709973 (T.T.A.B. Jul. 30, 2014)

Mailed:
July 30, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Maria C. LaMon
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Serial No. 76709973
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Matthew S. Swyers of The Trademark Company PLLC, for Maria C. LaMon.

Amy Alfieri, Trademark Examining Attorney, Law Office 109 (Dan Vavonese,
Managing Attorney).
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Before Ritchie, Adlin, and Hightower, Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Maria C. LaMon, applicant herein (“Applicant”), seeks registration on
the Principal Register of the mark VISUAL MUSIC CONCEPTS,1 in
standard character format, for goods identified as “printed music books
containing songs from the public domain printed in an oversized layout for
visual learning; flash cards featuring music notes to reinforce note

1 Serial No. 76709973, filed on December 13, 2011, amended to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on a bona fide intent to use the mark in
commerce.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser. No. 76709973
2
recognition, printed in a oversized layout for visual learning; stickers for
piano keys made out vinyl static cling sheets and printed in an oversized
layout for visual learning,” in International Class 16.
The trademark examining attorney refused registration on the ground
that Applicant’s applied-for mark is merely descriptive of the identified goods
under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1). Both Applicant
and the Examining Attorney filed briefs. After considering all of the evidence
and arguments, we affirm the refusal to register.
A term is deemed to be merely descriptive of goods or services, within
the meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the
goods or services. See, e.g., In re Chamber of Commerce of the U.S., 675 F.3d
1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Gyulay, 820 F.2d 1216,
3 USPQ2d 1009 (Fed. Cir. 1987); and In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). Whether a term is merely
descriptive is determined not in the abstract, but in relation to the goods or
services for which registration is sought, the context in which it is being used
on or in connection with those goods or services, and the possible significance
that the term would have to the average purchaser of the goods or services
because of the manner of its use. That a term may have other meanings in
different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591,
593 (TTAB 1979). If, on the other hand, a mark requires imagination,
Ser. No. 76709973
3
thought, and perception to arrive at the qualities or characteristics of the
goods or services, then the mark is suggestive. In re MBNA America Bank
N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003).
We consider a composite mark in its entirety. A composite of
descriptive terms is registrable only if as a unitary mark it has a separate,
non-descriptive meaning. In re Colonial Stores, Inc., 394 F.2d 549, 157 USPQ
382 (CCPA 1968) (holding SUGAR & SPICE not merely descriptive of bakery
products). Accordingly, we look to the plain meaning of the words. The
Examining Attorney submitted definitions, of which we note the following
relevant portions:2
“Visual”: 6. “of or relating to a method of instruction involving
sight.”

“Music”: 2. “vocal or instrumental sounds possessing a degree of
melody, harmony, or rhythm.”; 3a. “a musical composition;” b.
“the written or printed score for such a composition”

“Concept”: 1. “a general idea derived or inferred from specific
instances or occurrences; 3. “a scheme; a plan.”

The examining attorney argues that the term “visual music concepts”
as a whole is descriptive of the goods in the application, specifically, that the
evidence shows that the term “visual music concepts” refers to the fact that
Applicant’s books and flash cards teach music using visual cues. As such, the
term provides information about the goods. Applicant admits that “visual”
and “music” are descriptive of its goods but asserts that “concepts” is not,

2 From YAHOO! Education. Submitted with March 30, 2012 Office Action, pp. 2-4.
Applicant did not object to these definitions or counter with definitions from other
sources.
Ser. No. 76709973
4
thereby rendering the applied-for mark as a whole inherently distinctive. In
particular, Applicant asserts:
As a preliminary matter, the Applicant concedes that the
terms VISUAL and MUSIC are descriptive of her
products. As such, rather than arguing that these terms
are inherently distinctive it is requested that these terms
be disclaimed apart from the mark as shown. However, as
set forth below, the term CONCEPTS for the identified
goods is inherently distinctive and, as such, should carry
the instant mark on the Principal Register with the
disclaimer set forth herein.
(Applicant’s Brief at 13)
The Examining Attorney, however, asserts to the contrary that the
term “music concepts” is used descriptively by third-parties to refer to their
music books and flash cards. To this end, the Examining Attorney submitted
evidence of numerous such third-party uses of the term, as well as a few uses
of the term “visual” in reference to music teaching, including on Applicant’s
own website, which touts a “Visual & Auditory Approach.”3 Some examples of
the third-party uses include the following:
KiddyKeys® Preschool Music Classes Make Learning Music
Concepts and Life Skills Fun for Children: . . . this original
music program enables young children to explore the piano
through improvisation, and easily learn music concepts. It’s a
great way to prepare children for school or for future
instrumental lessons.
Attached to March 30, 2012 Office Action, p.7.4

3 Submitted by Applicant as p. 8 of her April 30, 2012 Response to Office Action.
4 Web evidence was submitted by the Examining Attorney without URLs and
dates shown. Although the rules of evidence are more relaxed in ex parte
proceedings, and Applicant did not object that she was unable to verify any of
the submissions, it is preferable to include this information. See In re
International Business Machines Corp., 81 USPQ2d 1677, 1682 n.9 (TTAB 2006)
(Board considered web pages that did not include web addresses because applicant
did not object to them); In re White, 73 USPQ2d 1713, 1716 n.5 (TTAB 2004).
Ser. No. 76709973
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Monte Vista Baptist Church: Preschool Choir: The music
experience choir meet at 6pm on Sundays. These children learn
foundational music concepts such as the difference between
long and short tones, high and low pitches, soft and loud sounds,
fast and slow tempos.
Attached to March 30, 2012 Office Action, p.8.

Music for Little Mozarts: Music Lesson Books: Keyboard
performance and introduction of music concepts.
Attached to May 31, 2013 Final Office Action, p.3.

JW Pepper: 101 Music Activities: Product Description: Each
activity is geared to the National Standards and can be used to
introduce and reinforce music concepts and as an assessment
tool.
Attached to May 31, 2013 Final Office Action, p.2.

MusicEd Tech: Book: Use the materials in this book and the
companion website to teach music concepts through the
creative process of composition. It’s a turn-key, step-by-stop
guide for the teacher.
Attached to May 31, 2013 Final Office Action, p.5.

May Watts Elementary School: Indian Prairie School District
204: Themes: The music literature presented in this section is
based on common classroom themes related to self, family,
friends, adventures, and celebrations. These songs also help
reinforce the music concepts taught in the concept section of
the book.
Attached to May 31, 2013 Final Office Action, p.6.

Auburn Senior High School Bands: Percussion Ensembles: This
ensemble is composed of auditioned 10-12 [grade?]
percussionists that are concurrently enrolled in Wind Ensemble.
In this ensemble, students learn music concepts to help them
listen, perform and understand high school level percussion
literature.
Attached to March 30, 2012 Office Action, p.6.

Islands of Genius: The Bountiful Mind of the Autistic, Acquired,
and Sudden:
How do persons with perfect pitch learn?: Learning occurs, in
most people, through use of a combination of auditory and visual
Ser. No. 76709973
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cues. Auditory learning is done through hearing the spoken
language, such as listening to a teacher’s verbal explanation, for
example. Visual learning is done through sight, such as seeing
words in a book or writing on the blackboard.
Attached to December 23, 2013 Denial of Request for
Reconsideration, p. 9.

A Few Words . . . What’s it all about?: The discrepancy between
oral and visual learning described above deters many
“illiterate” musicians from ever learning how to read music.
Attached to December 23, 2013 Denial of Request for
Reconsideration, p. 7.

Boys and Girls Learn Differently! A Guide for Teachers and
Parents: Another intriguing difference applies to teaching
music, especially choir. . . . This suggests a biological rationale
for how teachers should arrange their students in terms of
distance or closeness to visual learning aids.
Attached to December 23, 2013 Denial of Request for
Reconsideration, p. 10.

This evidence establishes that when Applicant’s mark is viewed as a
whole, consumers will perceive “visual music concepts,” in relation to
Applicant’s identified goods, as describing a characteristic of them. See, e.g.,
In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219; DuoProSS
Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d
1753, 1757 (Fed. Cir. 2012). In particular, it requires no thought or mental
gymnastics to understand that “visual music concepts,” when referring to
Applicant’s goods, describes the visual learning of the music concepts in
Applicant’s books and flashcards. In re MBNA America Bank N.A., 67
USPQ2d at 1780. As such, we have no doubt that a consumer would
understand “visual music concepts,” used in connection with Applicant’s
goods, as directly conveying information about them. See In re Tower Tech
Ser. No. 76709973
7
Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002); see also In re Conductive
Services, Inc., 220 USPQ 84, 86 (TTAB 1983). Therefore, we find that the
applied-for mark is merely descriptive of the identified goods.
Decision: The refusal to register affirmed.