Oreck Holdings, LLCv.BISSELL Homecare, Inc.

Trademark Trial and Appeal Board

Feb 16, 2010

No. 91173831 (T.T.A.B. Feb. 16, 2010)

Hearing: Mailed:
10/06/09 2/16/10

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Oreck Holdings, LLC
v.
BISSELL Homecare, Inc.
_____

Opposition No. 91173831
to application Serial No. 78766720
filed on December 5, 2005
_____

Kimberly A. Eckhart of Winston & Strawn for Oreck Holdings,
LLC.1

Daniel P. Albers and Melissa A. Vallone of Barnes &
Thornburg for BISSELL Homecare, Inc.
______

Before Quinn, Zervas and Kuhlke, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

BISSELL Homecare, Inc. filed an application to register
the designation HEALTHY HOME VACUUM (“VACUUM” disclaimed)
for “vacuum cleaners.”2

1 Opposer’s current counsel did not make an appearance and become
the attorney of record until after briefing, but prior to the
oral hearing. Up to that point opposer was represented by Carl
F. Manthei of The Ollila Law Group.
2 Application Serial No. 78766720, filed December 5, 2005,
alleging a bona fide intention to use the mark in commerce.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Opposition No. 91173831
2
Oreck Holdings, LLC opposed registration on the ground
that applicant’s mark, when applied to applicant’s goods, is
merely descriptive thereof under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052(e)(1).3
Applicant, in its answer, denied the salient
allegations of the notice of opposition.

Evidentiary Objections
Applicant moved to strike portions of the testimonial
deposition (along with exhibits related thereto) of Marshall
Oreck, applicant’s executive vice president with forty-four
years of experience in the vacuum cleaner industry. As
grounds for the motion applicant contends that Mr. Oreck’s
testimony contradicts his earlier statements as a Fed. R.
Civ. P. 30(b)(6) discovery witness; and that this “new”
testimony “was not disclosed” during discovery. More
specifically, Mr. Oreck stated during his discovery
deposition that “healthy home” has a wide variety of
meanings; that the characteristics of a “healthy home” vary
widely; and that the term does not directly convey any
information about a feature of a vacuum cleaner. During his

3 Opposer also pleaded that the applied-for mark is generic, and
this issue was raised in opposer’s brief. However, opposer’s
current counsel, in response to an inquiry from the Board panel
at the oral hearing, specifically indicated that genericness was
no longer an issue in this case. Accordingly, the issue of
genericness will not be considered.
Opposition No. 91173831
3
testimony deposition, Mr. Oreck asserted that “healthy home”
is descriptive in that it tells consumers what the product
does. Opposer responded to applicant’s motion, contending
that the testimony is consistent, and that he should be
considered as “an expert on marketing vacuums.” (Response,
p. 10).
The motion to strike is denied. We have considered
both the discovery deposition of Mr. Oreck, as well as the
objected-to portions of the trial deposition. To the extent
that the testimony is inconsistent, we have taken that into
account in assessing Mr. Oreck’s credibility, and in giving
probative weight to the various statements by Mr. Oreck.
Further, whether the objected-to testimony is considered or
not, Mr. Oreck’s answers relative to the ultimate issue in
this proceeding - whether HEALTHY HOME VACUUM is merely
descriptive – are not probative inasmuch as his judgment
(given as either an expert or a fact witness) may not be
substituted for our own judgment in determining the merits
of this litigation.
Applicant also moved to strike in its entirety the
testimony deposition of Shane Cohen, a former employee of
opposer who no longer works in the vacuum cleaner industry.
Applicant contends that this “expert” testimony contradicts
Mr. Oreck’s discovery testimony, and that Mr. Cohen’s
testimony lacks proper foundation. In response, opposer
Opposition No. 91173831
4
argues that late in the discovery phase, Mr. Cohen was
identified as a fact witness, and not as an expert. Opposer
further responded, however, by stating that Mr. Cohen is
qualified as an expert, and that his identity was properly
disclosed to applicant. Opposer also contends that the
testimony of Messrs. Oreck and Cohen is consistent.
The motion to strike is denied. Although we have
denied the motion, we do not consider Mr. Cohen an “expert”
in the vacuum cleaner field. Mr. Cohen’s twelve years of
experience, does not, in our minds, qualify him as an expert
in the field. We have considered his testimony, however, as
a fact witness, and accorded it, as in the case of Mr.
Oreck, whatever probative value it merits.
So as to be clear, we have considered the depositions
of Messrs. Oreck and Cohen in their capacity as fact
witnesses. In reading their testimony, we have not, of
course, considered them to be experts in trademark law, and
any opinion relating to the ultimate question of law in this
case has been given no weight. See, e.g., Capital Project
Management Inc. v. IMDIDI Inc., 70 USPQ2d 1172, 1174 (TTAB
2003); and Fisons Limited v. UAD Laboratories, Inc., 219
USPQ 661, 663 (TTAB 1983).
Opposer moved to strike the numerous third-party
registrations attached to applicant’s main brief identified
as Appendices C and D. Opposer points out that this
Opposition No. 91173831
5
evidence was not properly introduced by a notice of
reliance, but rather was improperly and untimely submitted
with the appeal brief. Opposer contends that applicant is
“simply trying to ambush opposer with documents never
disclosed, not submitted in a notice of reliance and not
introduced as exhibits in a trial deposition.” Opposer
further asserts that had this evidence been properly
introduced opposer would have countered with its own third-
party registrations to rebut those submitted by applicant.
Applicant responds by arguing that the registrations
were part of the prosecution record of the involved
application because the registrations were submitted with a
response to an Office action. Thus, applicant urges, the
evidence is of record based on the plain language of
Trademark Rule 2.122(b)(1).
In taking up this specific evidentiary dispute, the
Board must consider an intervening decision by the Federal
Circuit issued after the oral hearing. See Cold War Museum
Inc. v. Cold War Air Museum Inc., 586 F.2d 1352, 92 USPQ2d
1626 (Fed. Cir. 2009). The Court took issue with the
Board’s decision to not consider evidence of acquired
distinctiveness that applicant had submitted during
prosecution. The Board’s ruling was based on applicant’s
failure to resubmit the evidence during the inter partes
proceeding. The Board has long considered that, although
Opposition No. 91173831
6
the application file is automatically part of the record
under the rule, it does not follow from this fact that the
allegations made and documents and other things filed
therein are proof of facts on behalf of the applicant in an
opposition proceeding. See, e.g., Osage Oil &
Transportation, Inc. v. The Standard Oil Company, 226 USPQ
905, 906 n.4 (TTAB 1985).
In making its evidentiary ruling, the Court looked to
Trademark Rule 2.122(b). This rule provides, in pertinent
part to an opposition proceeding, that “the file...of the
application against which a notice of opposition is
filed...forms part of the record of the proceeding without
any action by the parties and reference may be made to the
file for any relevant and competent purpose.”
The Court found Trademark Rule 2.122(b) “to be clear
and unambiguous,” and determined that the Board’s refusal to
consider evidence from the registration file “conflicts with
the plain language of the regulation.” Cold War Museum Inc.
v. Cold War Air Museum Inc., 92 USPQ2d at 1628-29. The
Court went on to state that the entire file of the involved
application (or registration) – “including any evidence
submitted by the applicant during prosecution” - is part of
the record of the relevant inter partes proceeding, without
any action by the parties. Id. at 1628.
Opposition No. 91173831
7
The third-party registrations at issue herein were made
part of the application record during prosecution.
Accordingly, this evidence forms part of the record “without
any action by the parties,” and pursuant to the Court’s
ruling in Cold War Museum, we are constrained to consider it
“for any relevant and competent purpose.”
We hasten to add, however, that this evidence is of
very limited probative value in determining the issue of
mere descriptiveness. See In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [“Even if prior
registrations had some characteristics similar to
[applicant’s] application, the PTO’s allowance of such prior
registrations does not bind the Board or this court.”]; and
In re Classic Media Inc., 78 USPQ2d 1699, 1700 (TTAB 2006).
Ultimately, our dismissal of the opposition is not based on
this disputed evidence having overcome a prima facie case by
opposer but, rather, is based on opposer having failed to
convince the panel, by a preponderance of the evidence,
irrespective of these registrations, that the involved mark
is merely descriptive.

The Record
The record consists of the pleadings; the file of the
involved application; trial testimony, with related
exhibits, taken by each party; a discovery deposition with
Opposition No. 91173831
8
related exhibits, official records, articles and excerpts
retrieved from printed publications, including dictionaries,
and applicant’s answers to certain of opposer’s
interrogatories, all introduced by way of opposer’s notice
of reliance; and a discovery deposition with related
exhibits made of record in applicant’s notice of reliance.
The parties introduced additional evidence by stipulation,
including news articles, Internet evidence, emails, and
discovery responses.4 The parties filed briefs, and counsel
for both parties appeared at an oral hearing.

The Parties
The parties are direct competitors, with both
manufacturing and selling vacuum cleaners. After years of
intense price competition in the industry, manufacturers
recently have focused their attention on adding features to
their vacuum cleaners, including ones directed to a more
environment-friendly cleaning experience. Applicant’s line
of products includes a vacuum cleaner sold under the
designation HEALTHY HOME VACUUM. This vacuum cleaner has
certain features, including a HEPA (high efficiency

4 Much of the record, not to mention the briefs, was designated
as “confidential.” Suffice it to say, counsel should have been
far more judicious in their designating certain testimony and
evidence, as well as the briefs, as “confidential.” Our view is
that much of the record is not truly confidential. Nevertheless,
we have, of course, respected the confidentiality agreement
Opposition No. 91173831
9
particulate air) filtration system and antimicrobial
protection. According to James Krzeminski, applicant’s
executive vice president of sales, marketing and product
development, a “key feature” of this particular vacuum
cleaner is the “airtight HEPA filtration.” (Dep., p. 19).
Applicant’s competitors, including opposer, also sell vacuum
cleaners with a HEPA filter. This feature allows higher
filtration of the air released by the vacuum cleaner back
into the home environment during vacuuming. Applicant’s
vacuum cleaner also uses Microban antimicrobial product
protection to fight the growth of bacteria, mold and mildew
within the vacuum so these microbes do not multiply and
cause odors. In the trade, vacuum cleaners with one or more
special features, such as this particular model of
applicant’s, are sold at a higher price than a standard
vacuum cleaner. As borne out by the results of the parties’
respective focus group studies, consumers are becoming
increasingly aware of the advantages of an environment-
friendly home. Their awareness extends to a desire to
eliminate allergens, dust mites and the like in the home,
and manufacturers are marketing certain of their vacuum
cleaners to aid in this process.
The Law

between the parties, and have refrained from disclosing any
information that is truly proprietary in nature.
Opposition No. 91173831
10
Opposer bears the burden of showing, by a preponderance
of the evidence, that the designation sought to be
registered is merely descriptive. Goodyear Tire & Rubber
Co. v. Continental General Tire Inc., 70 USPQ2d 1067, 1070
(TTAB 2003). A mark is descriptive if it "forthwith conveys
an immediate idea of the ingredients, qualities or
characteristics of the goods [and/or services]."
Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4,
189 USPQ 759, 765 (2nd Cir. 1976) (emphasis added). See In
re Abcor Development Corp., 616 F.2d 525, 200 USPQ 215 (CCPA
1978). Moreover, in order to be descriptive, the mark must
immediately convey information as to the qualities, features
or characteristics of the goods and/or services with a
"degree of particularity." Plus Products v. Medical
Modalities Associates, Inc., 211 USPQ 1199, 1204-1205 (TTAB
1981). See In re Diet Tabs, Inc., 231 USPQ 587, 588 (TTAB
1986); Holiday Inns, Inc. v. Monolith Enterprises, 212 USPQ
949, 952 (TTAB 1981); In re TMS Corp. of the Americas, 200
USPQ 57, 59 (TTAB 1978); and In re Gourmet Bakers, Inc., 173
USPQ 565 (TTAB 1972).
A term need not immediately convey information about
each and every specific feature of the applicant’s goods
and/or services in order to be considered merely
descriptive; rather, it is sufficient that the term
describes one significant attribute, function or property of
Opposition No. 91173831
11
the goods and/or services. In re H.U.D.D.L.E., 216 USPQ 358
(TTAB 1982); and In re MBAssociates, 180 USPQ 338 (TTAB
1973).
Whether a term is merely descriptive is determined not
in the abstract, but in relation to the goods and/or
services for which registration is sought, the context in
which it is being used on or in connection with the goods
and/or services, and the possible significance that the term
would have to the average purchaser of the goods and/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). It is settled that “[t]he question is not
whether someone presented with only the mark could guess
what the goods or services are. 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, 1316-17 (TTAB 2002).
The “average” or “ordinary” consumer is the class or classes
of actual or prospective customers of the parties’ goods in
this case. In re Omaha National Corporation, 819 F.2d 1117,
2 USPQ2d 1859 (Fed. Cir. 1987).

The Parties’ Arguments
Opposition No. 91173831
12
Opposer argues that applicant’s mark describes a
significant characteristic of its vacuum cleaners, namely
that it is intended to create a “healthy home” through the
use of enhanced filtration:
Most importantly, the phrase [HEALTHY
HOME VACUUM] immediately tells the
prospective consumer that the vacuum is
not just a standard machine that sucks
up dirt and dust from one’s home.
Without conjecture or speculation, a
consumer knows at once that the vacuum
bearing the name “Healthy Home” is
equipped with one or more features that
go beyond the traditional vacuum
function to promote the healthiness of a
home. Although a consumer may not know
the exact “healthy” feature that any
particular vacuum employs, he or she
knows it has something an ordinary
vacuum lacks that enhances home health.

(Brief, p. 10). According to opposer, “[a]s applied to the
proposed mark, ‘Healthy Home Vacuum,’ means a vacuum cleaner
that helps one achieve a home that is free of disease.”
(Brief, p. 14).5
Applicant, on the other hand, contends that the mark
merely suggests a possible result or an aspirational goal
(an improvement in the environment of a house), thus
requiring imagination on the part of consumers. Applicant
describes the multi-stage reasoning process as follows:

5 Opposer owns a registration of the mark ORECK CLEAN HOME for
vacuum cleaners wherein the Office required a disclaimer of the
words “Clean Home” because they convey to consumers the purpose
of the goods. Contrary to the gist of opposer’s argument on this
point, that the words “Clean Home” were disclaimed has no bearing
Opposition No. 91173831
13
First, the buyer must realize that
something can assist in improving a home
without actually being a part of the
healthy home. Second, the buyer must
realize that vacuums may create
nuisances in a house. These nuisances
include pollutants that are discharged
from the vacuum, noise, and the growth
of micro-organisms. Third, the buyer
must realize that these nuisances may
affect the house within which they live,
creating an unhealthy home. Fourth, the
buyer must realize how features of a
vacuum cleaner can be used to reduce
these nuisances. For example, such
features include filtration systems for
the air quality, reduced sound for the
noise pollution, and anti-microbial
features. Finally, the buyer must
appreciate how achieving such goals
through a vacuum cleaner may assist in
improving the environment in a house. A
buyer must also reflect on the health of
his/her home and how the features of
applicant’s vacuum could affect it.

(Brief, pp. 21-22). Applicant also points out that in
advertisements of its product, it does not just use HEALTHY
HOME VACUUM, but rather it must also use other words to
describe or explain the various features of the vacuum
cleaner. Applicant posits that if the designation were
merely descriptive, further explanation about the product’s
features would not be necessary.

The Evidence
Mr. Krzeminski asserted that applicant’s HEALTHY HOME
VACUUM vacuum cleaner “is one of the best performing

on the issue of mere descriptiveness of the words “healthy home”
Opposition No. 91173831
14
products for the least amount of total emissions back into
the air, indoor air quality becoming more important as a
driver of purchase, certainly, among some end consumers.”
(Dep., p. 16). In this connection, he went on to
acknowledge that “the consumer would expect that the BISSELL
product would advance their cause of a – or the idea of
their home being a healthier indoor living environment for
their children and families.” (Dep., p. 108). As indicated
earlier, Mr. Krzeminski testified that the “airtight HEPA
filtration” is a “key feature” of applicant’s vacuum
cleaner. (Dep., p. 19).
The terms comprising applicant’s mark are commonly used
and readily understood terms; the relevant dictionary
definitions of these terms, in relevant part, read as
follows:
healthy: evincing health; conducive to
health.

home: one’s place of residence; a
house, apartment, or other shelter that
is the usual residence of a person,
family, or household.

Vacuum: a vacuum cleaner or sweeper.

(www.dictionary.com).

Applicant’s Use

for vacuum cleaners.
Opposition No. 91173831
15
Mr. Krzeminski testified that “[t]he term healthy home
is not something we came up with. It’s a big general topic
to start from.” (Dep., p. 92).
Applicant’s uses of “Healthy Home” and similar terms on
its website (Ex. No. 26) include the following: “How to
create a Healthier Home.” In introducing its HEALTHY HOME
VACUUM brand product, applicant touts it as “Built like no
other vacuum so you can breathe easy.” The website
continues: “BISSELL is committed to helping you make your
home healthier. From the air you breathe to the floors your
children play on, by taking a few simple steps and using the
right products you can provide a healthier home for your
family.” Other uses on the website include: “Click on the
links to learn more about a healthy home”; “BISSELL is here
to help you create and maintain your own healthy home with
the following products:”; “Create a Healthy Home - Use
BISSELL cleaning products to remove allergens from your
home”; “Frequently Asked Questions About A Healthy Home.
Below you will find some little-known facts about healthy
and unhealthy homes.”; “Facts and Cleaning Tips for a
Healthier Home”; “Everything you need to know about a
Healthier Home. Click here to learn more about the Healthy
Home Vacuum™”; and “How do I make my home a healthier home?”
Several of applicant’s advertisements include the slogans
“We mean clean” or “We mean a healthier clean.” Other
Opposition No. 91173831
16
advertisements read “There’s clean. And then there’s
healthier clean. Introducing the BISSELL HEALTHY HOME
VACUUM.”
Opposer also introduced various internal documents
produced by applicant to show that applicant itself
considered the term “healthy home” to be descriptive. The
documents include emails among certain of applicant’s
employees, as well as reports on focus group studies
undertaken to gauge consumers’ perceptions and responses to
the “concept of a healthier home” and the role of a vacuum
cleaner therein.
We acknowledge that these internal documents show use
of “healthy home” in lower case letters. However, to the
extent that any of these uses may be characterized as
descriptive uses, the consuming public was never exposed to
them. And, given the small number (64) of consumers taking
part in the focus groups, we are not willing to find that
their views are truly reflective of the general consuming
public. That is to say, we decline to extrapolate the views
of a few dozen consumers to the general purchasing public at
large. Accordingly, the in-house uses in emails, and the
focus group study results, are of minimal probative value to
a determination of the likely reaction of consumers when
encountering applicant’s designation HEALTHY HOME VACUUM on
vacuum cleaners.
Opposition No. 91173831
17

Opposer’s Use
Opposer paid an undisclosed amount of money to be the
number one result (a “sponsored link”) when a consumer
searched “healthy home vacuum” on the GOOGLE website; this
“use,” according to opposer, is its only use of “healthy
home vacuum.” Opposer’s website and various press releases
show uses of “healthier home” in its marketing of vacuum
cleaners, as for example: “Regular, thorough vacuuming
helps create a healthier home”; “To remove dust, dirt and
allergens and help create a healthier home, the first line
of defense is a high quality bagged vacuum cleaner with high
efficiency filtration and dust containment...”; and
“Introducing a new standard in filtration technology for a
healthier home.”
Other press releases of opposer show the following
uses: “Fight your family’s allergies with Oreck products
and create a healthier home. The solution to a healthier
home and cleaner vacuuming experience is an advanced self-
sealing vacuum bag that locks in dust and dirt”; “‘Since
house dust and allergens can be a health risk, thorough home
cleaning can be an important part of a healthier home
prescription,’ said Dr. John Winder, allergist and chair of
the National Asthma Screening Program of the American
College of Allergy, Asthma and Immunology.”; “‘Bagged
Opposition No. 91173831
18
vacuums have a major role to fill in creating a healthier
home,’ said Dr. Winder. Oreck vacuum and other Oreck
products designed to make homes healthier are sold in Oreck
Clean Home Centers across the country. The Oreck XL Deluxe
Model Vacuum - Improved cleaning performance for a healthier
home & still incredibly lightweight.”
Opposer also maintains a website devoted to a healthy
lifestyle at www.healthier-home.com, and consumers have been
offered a pamphlet titled “David Oreck’s Helpful Hints for a
Cleaner Healthier Home.”

Third-Party Use in the Industry
The record includes uses of “healthy home” and
“healthier home” on the websites of five third-party
manufacturers of vacuum cleaners. Representative examples
include the following: “Helping every home become a healthy
home. At Aerus, we believe a clean home is a healthy home.”
(www.aerusonline.com); and “Maintaining a healthy home.
Vacuflo central vacuum systems promote a dust and allergen-
free home environment. The Healthy Home Advantage. Dust is
everywhere...Creating a clean and healthy home environment
for your family is important.” (www.vacuflo.com).

Third-Party Use in Other Industries
Opposition No. 91173831
19
Also of record are numerous third-party uses of
“healthy home” and/or “healthy home” in a very general
manner or in connection with the marketing and sale of a
wide range of goods and services that purportedly improve
the quality of health in one’s home. Representative
examples include the following:
Healthy Homes
Most people spend over 90% of their time
indoors. Your home is a very important
environment where you and your family
may spend much of your time. This
brochure offers ways to make your home a
healthy place. It includes information
on indoor and outdoor air quality,
pesticides, toxic household products,
mold, tobacco smoke, radon, drinking
water contaminants and making your home
“green.”
(www.epa.gov)

Help Yourself to a Healthy Home—Protect
your Children’s Health. “Help Yourself
to a Healthy Home” is a self-help
booklet for parents and caregivers that
provides information about housing-
related environmental health issues,
including asthma and allergies, lead,
mold and moisture, carbon monoxide,
indoor air quality, drinking water,
hazardous household products, home
safety and pesticides.
(www.hud.gov)

Healthy Home Care. A healthy home is
your goal. There are little things you
can do when you clean to keep up
appearances and help keep germs at bay.
(www.clorox.com)

What is a healthy home? A healthy home
is one that incorporates healthy design
elements, non-toxic building materials,
and proper construction techniques. It
Opposition No. 91173831
20
“breathes,” emits no toxic gases, and is
resistant to mold.
(www.architecturalhouseplans.com)

Healthy Home Room-by-Room Guide. Dust
mites. Mold. Pet dander. Pollen.
These common allergens can be home
wreckers. Learn how to control indoor
allergens to help keep you and your home
healthy!
(www.bedbathandbeyond.com)

The healthy home store. Did you know
the average home contains over 150
chemicals that have been linked to
allergies, birth defects and even
cancer? The cleaning supplies at ECO
help you take your health into your own
hands.
(www.ecoelements.com)

Healthy Home Carpet Care
(www.healthyhomecarpet.com)

Is your home a healthy home? Healthy
Homes, Inc. and its affiliate
corporation, Asbestos Removal
Technologies Inc., have been serving
homeowners and businesses since 1987.
Healthy Homes specializes in
environmental inspections with
remediation of specific individual
indoor air quality problems.
(www.healthyhomesinc.com)

Analysis
At the oral hearing, in response to a question from the
Board, opposer’s counsel acknowledged that the issue of mere
descriptiveness of the mark sought to be registered
presented “a close case.” We agree. While we also agree
with opposer that this proceeding has presented the Board
with more evidence than was before the examining attorney
Opposition No. 91173831
21
when the application was examined, we nevertheless find that
the record falls short of establishing, by a preponderance
of the evidence, that HEALTHY HOME VACUUM merely describes
applicant’s vacuum cleaners. Rather, we find the mark to be
only suggestive.
There is often a fine line between merely descriptive
marks and those which are just suggestive. These
determinations are often subjective, this case being no
exception. The determination of whether a mark is
descriptive or suggestive is not an exact science. Our
primary reviewing court has observed:
In the complex world of etymology,
connotation, syntax, and meaning, a term
may possess elements of suggestiveness
and descriptiveness at the same time.
No clean boundaries separate these legal
categories. Rather, a term may slide
along the continuum between
suggestiveness and descriptiveness
depending on usage, context, and other
factors that affect the relevant
public’s perception of the term.

In re Nett Designs, Inc., 57 USPQ2d at 1566.
Applicant’s HEALTHY HOME VACUUM falls on the suggestive
side of the line. The mark does not immediately describe a
characteristic or feature of applicant’s vacuum cleaner with
any degree of particularity. At most, the mark suggests
that use of applicant’s vacuum cleaner somehow will result
in an environment-friendly home.
Opposition No. 91173831
22
It is not fatal that a mark is informational. One may
be informed by suggestion as well as by description. In re
Reynolds Metals Company, 480 F.2d 902, 178 USPQ 296 (CCPA
1973). That is to say, the terms “descriptive” and
“suggestive” are not mutually exclusive. There is some
description in any suggestion or the suggestive process does
not occur. Applicant’s mark is no exception.
The mark at issue, HEALTHY HOME VACUUM, is typical of
so many marks that consumers encounter in the marketplace:
a highly suggestive mark that tells consumers something
general about the product, without being specific or
immediately telling consumers anything with a degree of
particularity. The information given by the mark is
indirect and vague. The mark here conjures up indirect
mental associations in the consumer’s mind; the thought
process beginning with the mark HEALTHY HOME VACUUM and
leading to a characteristic or feature of a vacuum cleaner
is neither immediate nor direct.
It is interesting to note that opposer, in its brief,
offers no fewer than twenty ways that HEALTHY HOME VACUUM
describes vacuum cleaners. Indeed, although Mr. Oreck’s
testimony is somewhat inconsistent on the ultimate issue of
mere descriptiveness, he was consistent in stating that
“healthy home” has a wide variety of meanings (8/30/07 Dep.,
pp. 12 and 60; and 7/25/08 Dep., pp. 61 and 82); and that
Opposition No. 91173831
23
the term does not directly convey to consumers an idea of
any particular feature of the vacuum cleaner (8/30/07 Dep.,
pp. 24 and 30; and 7/25/08 Dep., p. 65). Further, Mr.
Cohen, while steadfastly maintaining that, on the ultimate
issue in this case, applicant’s mark is merely descriptive,
also stated that the term does not convey a particular
feature of the product, and that “healthy home” has a wide
variety of meanings that varies consumer to consumer.
(Dep., pp. 72-74, 123, 126-127).
When confronting the mark HEALTHY HOME VACUUM on a
vacuum cleaner, the ordinary consumer will pause and reflect
on the use of the mark before understanding anything
specific about a feature or characteristic of the product.
One must exercise thought or engage in a multi-step
reasoning process to determine what attribute may be
identified by the mark. The mark does not, in any clear or
precise way, serve to immediately describe a particular
characteristic or feature of the goods with any degree of
particularity. As the witnesses have testified, and as
shown by the numerous websites, the meaning of the term
“healthy home” varies from consumer to consumer. The mark
HEALTHY HOME VACUUM does not serve to directly tell a
consumer anything other than a vacuum cleaner is involved.
The mark is an ephemeral concept and consumers are likely to
have various ideas about how a vacuum cleaner results in a
Opposition No. 91173831
24
more environment-friendly home. That is, the mark conveys a
nebulous and amorphous concept, almost like, as applicant
contends, an aspirational goal.
Opposer has expressed concern for itself, as well as
the industry in general, if the mark HEALTHY HOME VACUUM is
subject to exclusive appropriation by applicant.6 We do not
think that registration by applicant will prevent opposer
from using similar terms in describing its vacuum cleaners.
Applicant itself stated that it
is not seeking to prohibit its
competitors from ever using the terms
“healthy,” “home,” or “vacuum.”
Applicant’s competitors will still be
able to use the terms “healthy,” “home,”
and “vacuum” to describe their products,
as necessary. Applicant’s registration
will merely prohibit its competitors
from branding their products under the
Healthy Home Vacuum mark or a
confusingly similar mark.

(Brief, p. 40). That is to say, opposer (or, for that
matter, any other competitor in the industry) remains
perfectly free to inform consumers that its vacuums may
provide a “healthier home,” or to use the words “healthy,”
“home” or “vacuum” in whatever other non-trademark manner it
chooses. See Bose Corp. v. International Jensen Inc., 963
F.2d 1517, 22 USPQ2d 1704, 1706-07 (Fed. Cir. 1992)
[ACOUSTIC RESEARCH not merely descriptive for loudspeakers].

6 The record reveals numerous competitors in the vacuum cleaner
industry. Only opposer, however, objected to the registration of
applicant’s mark.
Opposition No. 91173831
25

Conclusion
We find, based on the record before us, that opposer
has not established by a preponderance of the evidence that
HEALTHY HOME VACUUM is merely descriptive of vacuum
cleaners. In reaching our conclusion we have considered all
of the evidence pertaining to the issue of mere
descriptiveness, as well as all of the parties’ arguments
with respect thereto (including any evidence and arguments
not specifically discussed in this opinion).
Decision: The opposition is dismissed.