Mark A. Steele

Trademark Trial and Appeal Board

Feb 8, 2011

No. 77653480 (T.T.A.B. Feb. 8, 2011)

Mailed:
February 8, 2011
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Mark A. Steele
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Serial No. 77653480
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Scott G. Ulbrich and Matthew T. Macari of Skaar Ulbrich
Macari, P.A. for Mark A. Steele.

Charles L. Jenkins, Jr., Trademark Examining Attorney, Law
Office 105 (Thomas G. Howell, Managing Attorney).
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Before Bucher, Zervas and Mermelstein, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the mark PRESSURE-LOK (in standard character format) for
goods identified in the application, as amended, as follows:
“nonmetal containers having a fluid actuated
closure, in the form of a pouch for storage
of liquids, solids or combinations thereof”
in International Class 20.1
The Trademark Examining Attorney refused registration
on the ground that the term is merely descriptive under

1 Application Serial No. 77653480 was filed on January 21,
2009 based upon applicant’s claims of first use anywhere at least
as early as December 9, 2008 and first use in commerce at least
as early as December 16, 2008.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77653480
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Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1).
After the Trademark Examining Attorney made the refusal
final, applicant appealed to this Board. We reverse the
refusal to register.
The Trademark Examining Attorney argues that the
evidence of record demonstrates that “a pressure lock is
used on all manner of containers and sealed pouches to
preserve liquids and solids by locking. The pressure lock
fastens the pouch and keeps it from opening … [and] the word
‘pressure lock’ is commonly used in the food industry to
describe a locking or sealing configuration used on
containers.” Trademark Examining Attorney’s brief at
unnumbered 4 and 5.
By contrast, applicant contends that the Trademark
Examining Attorney, in pointing out dictionary definitions,
has relied upon “non-contextual definitions of ‘pressure’
and ‘lock,’ ” and with his Lexis/Nexis entries has shown
that if there is a shared meaning of “pressure lock” in the
minds of relevant consumers, it would involve heavy,
mechanical locks or a dual-doored chamber – typically used
to created a sterile or vacuum environment. Given the
ambiguity of the words as applied to the identified goods,
applicant argues that its mark is suggestive, at worst.
Serial No. 77653480
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Moreover, applicant contends, if there is any doubt as to
the character of applicant’s mark, the doubt must be
resolved in favor of applicant.
Merely Descriptive under Section 2(e)(1)

A mark is merely descriptive, and therefore
unregistrable pursuant to the provisions of Section 2(e)(1)
of the Trademark Act, 15 U.S.C. § 1052(e)(1), if it
immediately conveys “knowledge of a quality, feature,
function, or characteristic of the goods or services.”
In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d
1828, 1831 (Fed. Cir. 2007) [ASPIRINA is merely descriptive
of analgesic product]. See also In re MBNA America Bank
N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003)
[MONTANA SERIES and PHILADELPHIA CARD are merely descriptive
of applicant’s “affinity” credit card services; a “mark is
merely descriptive if the ultimate consumers immediately
associate it with a quality or characteristic of the product
or service”]; In re Nett Designs, Inc., 236 F.3d 1339,
57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [THE ULTIMATE BIKE RACK
is merely descriptive of bicycle racks]; In re Gyulay,
820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987) [APPLE
PIE is merely descriptive of a potpourri mixture]; and In re
Quik-Print Copy Shops, Inc., 616 F.2d 523, 205 USPQ 505, 507
Serial No. 77653480
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(CCPA 1980). To be “merely descriptive,” a term need only
describe a single significant quality or property of the
goods [or services]. Gyulay, 3 USPQ2d at 1009.
Descriptiveness of a mark is not considered in the abstract,
but in relation to the particular goods or services for
which registration is sought. That is, when we analyze the
evidence of record, we must keep in mind that the test is
not whether prospective purchasers can guess what
applicant’s goods [or services] are after seeing only
applicant’s mark. In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 218 (CCPA 1978) [GASBADGE merely
descriptive of a “gas monitoring badge”; “Appellant’s
abstract test is deficient – not only in denying
consideration of evidence of the advertising materials
directed to its goods, but in failing to require
consideration of its mark ‘when applied to the goods’ as
required by statute.”]. Rather, the question is whether
someone who knows what the goods or services are will
understand the mark to convey information about them. In re
Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); and
In re Patent & Trademark Services Inc., 49 USPQ2d 1537, 1539
(TTAB 1998).
In addition to considering the applied-for mark in
relation to the goods or services for which registration is
Serial No. 77653480
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sought, the proper test for descriptiveness also considers
the context in which the mark is used and the significance
that the mark is likely to have on the average purchaser
encountering the goods or services in the marketplace. In
re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed.
Cir. 1987); In re Pennzoil Products Co., 20 USPQ2d 1753
(TTAB 1991); and In re Engineering Systems Corp., 2 USPQ2d
1075 (TTAB 1986).
A mark is suggestive, and therefore registrable on the
Principal Register without a showing of acquired
distinctiveness, if imagination, thought or perception is
required to reach a conclusion on the nature of the goods or
services. “Whether a given mark is suggestive or merely
descriptive depends on whether the mark ‘immediately conveys
… knowledge of the ingredients, qualities, or
characteristics of the goods … with which it is used,’ or
whether ‘imagination, thought, or perception is required to
reach a conclusion on the nature of the goods.’” (citation
omitted) In re Gyulay, 3 USPQ2d at 1009; In re Home Builders
Association of Greenville, 18 USPQ2d 1313 (TTAB 1990); and
In re American Greetings Corp., 226 USPQ 365 (TTAB 1985).
Hence, the ultimate question before us is whether the
term PRESSURE-LOK conveys information about a significant
Serial No. 77653480
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feature of applicant’s goods with the immediacy and
particularity required by the Trademark Act.
Background

In order better to understand the nature of applicant’s
involved goods, we have highlighted various clues from the
three different descriptions of the goods contained in the
record. Applicant’s original identification of goods listed
“containers having a fluid actuated closure, namely pouches
and other flexible containers.” The first amended
description was “flexible plastic packages with bubble
closures or access devices for holding liquids, solids or
combinations there.” After the final refusal, applicant’s
adopted the Trademark Examining Attorney’s suggestion, as
seen above: “nonmetal containers having a fluid actuated
closure, in the form of a pouch for storage of liquids,
solids or combinations thereof.”
The Trademark Examining Attorney has also made of
record screen prints from several online dictionaries of the
entries “pressure” and “lock,” and excerpts from Lexis/Nexis
articles where the term “pressure lock” is used in the
context of food preparation and processing.
Finally, the original specimen of record shows an image
of a standup reclosable pouch having an integrated closure
Serial No. 77653480
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mechanism as described in the identification of goods. One
notices that with reclosability as a key component of this
standup pouch, applicant has
invented a proprietary mechanism
using a fluid actuated closure
rather than sliders, zippers,
pinch locks, perforations,
embossed seals, adhesives or
other closing mechanisms.

Analysis

It requires no citation for us to discuss the applied-
for mark as if it were presented as “Pressure Lock.” In
fact, applicant makes no argument to the contrary.
Moreover, employing the various dictionary definitions
the Trademark Examining Attorney has made of record, one can
see how “pressure” suggests the act of pressing on the
closure chamber to provide access to the pouch and then
later pressing on the reservoir chamber to close the pouch.
The word “lock” might well be suggested by this latter act
of closing the pouch. However, we agree with applicant that
this seems much too ambiguous to cause consumers to
associate immediately that phrase with a feature or
characteristic of appellant’s pouches.
Serial No. 77653480
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From Lexis/Nexis, the Trademark Examining Attorney
placed into the record a variety of excerpts from published
articles. Among the “pressure lock” items in the cited
articles was a lock for a jail cell, radiator caps, locks
for gun safes and electrical wiring termination methods.
The following excerpts are two cases where the usage is more
closely related to food processing, preserving or packaging:
Title: Electrifying advances in preserving foods
Prepared Foods, April 1, 1995 by Bob Swientek
…
THE PRESSURE'S ON
In the late 1960s, Trenton Foods (now owned by Nestle) began
producing canned foods using the Flash 18 process, which was developed
and licensed from Swift & Co. Over-simplified, the process consists of rapid
heating of foods in a large cylindrical chamber pressurized to 18 psig. After
quickly reaching sterilizing temperature, the foods are filled into cans, which
are lidded and sealed. Conventional retorting is eliminated.
Updating the Flash 18 process, Pressure Pack Inc., Williamsburg,
Va., has recently introduced the pressure pack process for high-
temperature/short time (HTST) processing of foods in cans, glass jars, rigid
containers and flexible packaging.
During the pressure pack process, product filling, container sealing,
product hold and cooling take place inside a sterile environment with special
pressure locks between the sections. Food products are heated by HTST
methods prior to entering the filling/sealing section. Containers also are
preheated and pass through a pressure lock prior to entering the
filling/sealing section.

This one article (resulting in what appeared to be two
separate quotations in the Trademark Examining Attorney’s
brief) involves pressurized systems used by food
manufacturers in processing and packaging fast food. The
complex and expensive manufacturing equipment described
herein is designed to get fresh food to consumers
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conveniently with minimal processing but ensuring a totally
sterile environment for filling/sealing.
Title: You need to check things out before you start canning
Better Homes and Gardens, July 20, 1989
Reprinted in San Diego Union-Tribune

… not stand directly on the bottom of the pan. The container should have a
close-fitting lid. Kettles specifically designed for processing are available.
Steam pressure canner: The pressure canner is a heavy seamless kettle with a
rack and locking lid with seal, pressure lock and safety valve.

This second article (from The Better Homes and Gardens)
refers to the steam pressure canner – a decidedly low-tech
item used by home canners in this country for more than a
century. The locking lid with seal is used to lock in the
pressure needed to seal the jars of food product being
canned.
Accordingly, there is nothing from the Internet or
Nexis that points to usage of the applied-for term in any
way conveying information about a feature of applicant’s
standup, shaped pouch having a fluid actuated closure
mechanism.
As noted by applicant, the Trademark Examining Attorney
has the burden of proof on this issue, and any doubts we
have must be resolved in favor of the applicant. Inasmuch
as the record submitted by the Trademark Examining Attorney
leaves us unsure that this term describes a feature or
characteristic of the goods with which applicant uses it, we
Serial No. 77653480
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cannot affirm the refusal to register under Section 2(e)(1)
of the Trademark Act.
Of course, in the event that applicant’s competitors
need to use this combined term to describe their own goods
or contract services in this field, they will be free to
oppose registration to applicant. If they could create a
record that establishes that this term has mere descriptive
significance in connection with goods similar to those of
applicant, such an opposition would be sustained.
Decision: We hereby reverse the refusal of the
Trademark Examining Attorney to register this mark under
Section 2(e)(1) of the Lanham Act.