Melt Your Heart, Inc.

Trademark Trial and Appeal Board

Mar 2, 2000

No. 75245378 (T.T.A.B. Mar. 2, 2000)

Paper No. 9
BAC
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MARCH 2, 00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Melt Your Heart, Inc.
________
Serial No. 75/245,378
_______
Philip L. Conrad of Kudirka & Jobse, LLP for Melt Your
Heart, Inc.
James R. Menker, Trademark Examining Attorney, Law Office
110 (Chris A. F. Pedersen, Managing Attorney).
_______
Before Simms, Chapman and Bucher, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
On February 21, 1997, Melt Your Heart, Inc. filed an
application to register the mark MELT YOUR HEART on the
Principal Register for “decorative wooden outdoor
adornments for snow sculptures” in International Class 20.
The claimed date of first use is December 26, 1996; and the
relevant portion of applicant’s specimen is reproduced
below.
Ser. No. 75/245378
2
Registration has been finally refused pursuant to
Sections 1, 2 and 45 of the Trademark Act, 15 U.S.C.
§§1051, 1052 and 1127, on the ground that the drawing of
the mark differs from the mark shown on the specimens,
i.e., the mark in the drawing is a mutilation of the mark
as actually used.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested.
Applicant argues that in determining whether the mark
presented in the drawing is a mutilation of the mark as
actually used on the specimens one looks to whether the
mark in the drawing in fact identifies and distinguishes
the involved product from those of others, and whether it
creates a separate and distinct commercial impression.
Applicant contends that there is no question in this case
that the applied-for mark identifies and distinguishes
applicant’s goods; and that the applied-for mark creates a
separate commercial impression without the additional words
“THE” and “SNOWMAN.” Specifically, applicant contends that
the term “THE” is merely an incidental article which has no
effect on the commercial impression created by the mark;
that the term “SNOWMAN” appears on a separate line, and it
serves to describe the product not the source of the
Ser. No. 75/245378
3
product; and that the phrase MELT YOUR HEART is a well-
known colloquialism with no recognizable association with
the term “snowman.”
The Examining Attorney essentially contends that
applicant’s mark as presented in the drawing (MELT YOUR
HEART) omits essential and integral matter from the mark as
it appears on the specimens (THE MELT YOUR HEART SNOWMAN)1;
that applicant uses the words all in the same font type and
size even though the word “SNOWMAN” appears on a second
line; that the mark as used on the specimens is a unitary
phrase of which MELT YOUR HEART is an inseparable element;
and that while “melt your heart” is a figurative phrase
relating to “a softening of feelings,” the term “melt” also
has a special meaning in relation to the term “snowman”
thus implying that applicant’s products (decorative wooden
outdoor adornments for snow sculptures) “will make your
heart melt as inevitably as a snowman will melt.” (Brief,
p. 5). The Examining Attorney also contends that applicant
offered no evidence to show that purchasers separate the

1 We note that the Examining Attorney stated in the final Office
action that applicant could alleviate the problem of the
discrepancy between the drawing and the specimens by either
amending the drawing to read THE MELT YOUR HEART SNOWMAN and
disclaiming the word “snowman,” or submitting substitute
specimens showing use of the mark MELT YOUR HEART along with an
affidavit or declaration of use as of the filing date of the
application. Applicant opted for neither of these alternatives.
Ser. No. 75/245378
4
words MELT YOUR HEART out of the phrase THE MELT YOUR HEART
SNOWMAN.
As stated by the Court of Appeals for the Federal
circuit in the case of The Institut National des
Appellations D’Origine v. Vintners International Co. Inc.,
958 F.2d 1574, 22 USPQ2d 1190, 1197 (Fed. Cir. 1992)
(wherein the Court affirmed the Board’s granting of summary
judgment in applicant’s favor, and held, inter alia, that
applicant’s use of the mark CHABLIS WITH A TWIST for citrus
flavored wine was not a mutilation of the words CALIFORNIA
CHABLIS WITH A TWIST as used by applicant):
‘Mutilation’ is a concept long
recognized as a part of trademark
registration case law. See In re Servel
Inc., 181 F.2d 192,195, 85 USPQ 257,
259-260 (CCPA 1950). The issue must be
decided on the facts of each case.
And later in The Institut National des Appellations v.
Vintners case, the Court cited McCarthy’s Trademarks and
Unfair Competition treatise2 saying that the question is
“what exactly is the ‘trademark’?”; and quoted McCarthy’s
as follows:
It all boils down to a judgment as to
whether that designation for which
registration is sought comprises a

2 The current citation in McCarthy’s treatise on this subject is
3 J. McCarthy, McCarthy on Trademarks and Unfair Competition,
§19:59 (4th ed. 1999).
Ser. No. 75/245378
5
separate and distinct ‘trademark’ in and
of itself.
In the circumstances of the case now before us, we
agree with the Examining Attorney that the mark presented
in the drawing, MELT YOUR HEART, is an inseparable and
integral part of the mark as actually used, THE MELT YOUR
HEART SNOWMAN. The words MELT YOUR HEART do not
create a separate and distinct commercial impression when
viewed as applicant uses THE MELT YOUR HEART SNOWMAN on its
specimens.
The specimens submitted by applicant unquestionably
show the applied-for mark with the additional words “THE”
and “SNOWMAN,” all in the same font type and size with no
emphasis on any specific word or words. The word “THE”
appears on the same line with the words “MELT YOUR HEART”
and it is illogical to assume that the purchasing public
would read and perceive this mark as “THE MELT YOUR HEART.”
Rather, consumers when encountering this mark for the
involved goods, would in fact read it as “THE MELT YOUR
HEART SNOWMAN.” That is, the words “THE” and “SNOWMAN” are
part and parcel of the mark as viewed by the consumer. It
is true that the words MELT YOUR HEART are a colloquial
phrase. Nonetheless, applicant’s particular use of those
words with the additional words “THE” and “SNOWMAN” creates
Ser. No. 75/245378
6
a single commercial impression, especially in light of the
logical mental connection between the words “MELT” and
“SNOWMAN.” See In re Jane P. Semans, 193 USPQ 727 (TTAB
1976) [wherein the Board affirmed the refusal to register
the mark KRAZY for food seasonings and seasoned rice, when
the specimens showed use of KRAZY MIXED-UP (all on one line
in plain type) and/or JANE’S KRAZY MIXED-UP SALT (with the
word JANE’S in plain lettering on the line above the words
KRAZY MIXED-UP SALT in stylized lettering)]. See also,
TMEP §807.14(b).
Decision: The refusal to register is affirmed.
R. L. Simms
B. A. Chapman
D. E. Bucher
Administrative Trademark Judges,
Trademark Trial and Appeal Board