Ocean Technology, Inc.

Trademark Trial and Appeal Board

Jan 28, 2020

87405233re (T.T.A.B. Jan. 28, 2020)

This Opinion is Not a
Precedent of the TTAB

Oral Hearing: April 24, 2019 Mailed: January 28, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ocean Technology, Inc.
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Serial Nos. 87405211 and 87405233
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Request for Reconsideration
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Stephen G. Janoski of Butzel Long,
for Ocean Technology, Inc.
Cameron McBride, Trademark Examining Attorney, Law Office 106,
Mary Sparrow, Managing Attorney.
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Before Ritchie, Greenbaum and Lynch,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Ocean Technology, Inc. (“Applicant”) seeks registration on the Principal Register
of the following two proposed marks for goods ultimately identified as “crabmeat” in
International Class 29:1

1 Application Serial Nos. 87405211 and 87405233 were filed on April 10, 2017, based upon
Applicant’s allegation of a bona fide intention to use the marks in commerce under Section
1(b) of the Trademark Act, 15 U.S.C. § 1051(b). On January 10, 2018, Applicant filed an
Amendment to Allege Use in each application based on a claim of first use anywhere and use
in commerce since at least as early as May 31, 2017. Applicant asserts that the proposed
Serial Nos. 87405211 and 87405233
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1. Serial No. 87405211: ALL NATURAL 100% REAL CALLINECTES CRAB
GOURMET CRABMEAT PASTEURIZED and design,2 displayed as

and
2. Serial No. 87405233: ALL NATURAL 100% REAL CALLINECTES CRAB
FROM NORTH AMERICA GOURMET CRABMEAT PASTEURIZED and
design,3 displayed as

marks are inherently distinctive, and in the alternative, that they have acquired
distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f).
2 The description of the mark reads: “The mark consists of the stylized wording ‘ALL
NATURAL’ appearing above a crab design, with ‘Gourmet’ in stylized italicized font
appearing over the crab’s right claw, and ‘CRABMEAT’ in stylized uppercase font inside of a
shaded banner appearing underneath the crab, and the stylized uppercase term
‘PASTEURIZED’ along the bottom portion of the mark. To the right of the crab design is a
small label consisting of a stylized circular design and the following wording: ‘100% REAL
Callinectes CRAB,’ with each term appearing directly under the first.”
3 The description of the mark reads: “The mark consists of the stylized wording ‘ALL
NATURAL’ appearing above a crab design, with ‘Gourmet’ in stylized italicized font
appearing over the crab’s right claw, and ‘CRABMEAT’ in stylized uppercase font inside of a
shaded banner appearing underneath the crab, and the stylized uppercase term
‘PASTEURIZED’ along the bottom portion of the mark. To the right of the crab design is a
small label consisting of a stylized circular design and the following wording: ‘100% REAL
Callinectes CRAB,’ and under which appears separately ‘from NORTH AMERICA,’ with each
term appearing directly under the first.”
Serial Nos. 87405211 and 87405233
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The applications differ only by the wording FROM NORTH AMERICA that is
present in the second proposed mark but absent from the first. “CRAB” and
“CRABMEAT” are disclaimed in both of the proposed marks, and color is not claimed
as a feature of either of them.
On November 21, 2019, the Board issued a Final Decision (“Final Decision”)
affirming the refusals to register each of Applicant’s proposed marks because
Applicant failed to comply with a requirement to provide information about the
identified goods issued pursuant to Trademark Rule 2.61(b), 37 C.F.R. § 2.61(b),
specifically holding that “Applicant’s failure to comply with the Trademark Rule
2.61(b) requirements is a sufficient basis, in itself, for affirming the refusals to
register Applicant’s proposed marks. See DTI P’ship, 67 USPQ2d at 1702.” In re
Ocean Tech., Inc., 2019 USPQ2d 450686 *3 (TTAB 2019). For purposes of
completeness, however, the Board also affirmed the refusals to register each of the
proposed marks under Sections 1, 2 and 45 of the Trademark Act, 15 U.S.C. §§ 1051,
1052 and 1127, on the ground that each fails to function as a mark because it is merely
informational, consisting of non-source indicating informational terms and matter
that would not be perceived as identifying and distinguishing Applicant’s goods from
those of others or indicating their source. Ocean Tech., at *9-10. The Board explained
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that because the proposed marks are merely informational and thus fail to function
as trademarks, they are not eligible for registration on the Supplemental Register
(which Applicant sought earlier in the prosecution) or under Section 2(f):
[M]atter that does not indicate the source or origin of the
identified goods and distinguish them from those of others
cannot be registered because it does not meet the statutory
definition of a trademark. See Sections 1, 2 and 45 of the
Trademark Act. This is so regardless of the register on
which registration is sought (i.e., Principal or
Supplemental), or a claim of acquired distinctiveness.
(citations omitted).
Ocean Tech., 2019 USPQ2d at *8.
Therefore, the Board found inapposite Applicant’s argument and evidence that its
marks have acquired distinctiveness, which evidence consisted of a prior registration
owned by Applicant, and four declarations.4 Id. at *8 n.14.
Applicant now asks the Board to reconsider its treatment of Applicant’s evidence
of acquired distinctiveness and to find that the proposed marks are registrable under
Section 2(f).5 As a preliminary matter, we note that Applicant limits its Request for
Reconsideration to the acceptability of its Section 2(f) claim, and does not seek
reconsideration of the Board’s affirmance of the refusal to register the proposed
marks because Applicant failed to comply with the Trademark Rule 2.61
requirements for information, or the refusal to register under Sections 1, 2 and 45 of

4 In the alternative, Applicant also submitted, and the Board considered, the declarations as
evidence that the proposed marks are registrable because they are inherently distinctive. The
Board found the declarations insufficient to so demonstrate. Id. at *8 n.14 and *8-9.
5 We accept Applicant’s late filed Request for Reconsideration. See Trademark Rule 2.144, 37
C.F.R. § 2.144.
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the Trademark Act because the proposed marks consist of merely informational
matter that does not function as a trademark and is not inherently distinctive. Thus,
regardless of any reconsideration of the portion of the Final Decision requested by
Applicant, both applications still would stand rejected. The Request for
Reconsideration therefore is futile as it would not change the ultimate outcome for
either application.
Applicant summarizes its argument as follows:
The Board’s final decision expressly accepts that
Applicant’s mark ‘functions as a trademark because
consumers recognize it as such’ but that Applicants 2(f)
claims are not sufficient for the mark to convey a meaning
other than informational. Applicant respectfully disagrees
with the Board’s conclusions that Applicant’s 2(f) claims do
not support registration.6 22 TTABVUE 9.
The premise underlying a request for reconsideration of a Board decision under
Trademark Rule 2.144 is that based on the evidence of record and the prevailing
authorities, the Board erred in reaching the decision it issued. The request may not
be used to introduce additional evidence, nor should it be devoted simply to a
reargument of the points presented in the requesting party’s brief. Rather, the
request normally should be limited to a demonstration that, based on the evidence
properly of record and the applicable law, the Board’s decision is in error and requires
appropriate change. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF

6 In making this argument, Applicant selectively quoted language from the Final Decision,
the full text of which reads: “We consider the declarations of Mr. Dixon and the three
‘knowledgeable customer/industry representatives’ as Applicant’s evidence in support of its
argument that the proposed marks function as trademarks because consumers recognize
them as such.” (citation omitted). Ocean Tech., 2019 USPQ2d at *8-9.
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PROCEDURE (“TBMP”) §§ 543 and 1219 (2019) and cases cited therein. We see no error
in the Final Decision.
Contrary to Applicant’s characterization of what the Board “expressly accept[ed],”
the Board actually found that the proposed marks are merely informational and do
not function as trademarks, and consequently, they cannot be registered under the
provisions of Section 2(f). Ocean Tech., 2019 USPQ2d at *8-9, *8 n.14, and *9-10
(citing cases). Therefore, the Board correctly disregarded Applicant’s prior
registration, which Applicant submitted solely as evidence of acquired
distinctiveness. Cf. In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1634-
35 (Fed. Cir. 2016) (Prior registration of standard character mark does not entitle an
applicant to register the stylized version of the mark if the mark is now found to be
generic. “This is so because ‘generic terms, by definition incapable of indicating
source, are the antithesis of trademarks and can never attain trademark status.’”
(citation omitted)). The Board also correctly disregarded the declarations as evidence
of acquired distinctiveness, and evaluated them solely for the alternative purpose for
which they were submitted, namely, as evidence that the proposed marks are
inherently distinctive. Ocean Tech., 2019 USPQ2d at *8-9.
Applicant’s arguments about the prior registration and declarations are
essentially a rehashing of the acquired distinctiveness arguments raised in
Applicant’s briefs. In the Final Decision, the Board explained why Applicant’s
evidence of acquired distinctiveness and the related arguments are inapposite, and
we reiterated our explanation hereinabove. Applicant’s Request for Reconsideration
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does not persuade us that the Final Decision was in error. Accordingly, the Board
adheres to its finding that the proposed marks are not eligible for registration under
the provisions of Section 2(f) because they consist of merely informational matter that
does not function as a trademark under Sections 1, 2 and 45 of the Trademark Act.
Decision: The Request for Reconsideration is denied and the Board’s November
21, 2019 Final Decision stands.