No. 76699927 (T.T.A.B. Mar. 5, 2012)

OurPet's Company

Trademark Trial and Appeal BoardMar 5, 2012

No. 76699927 (T.T.A.B. Mar. 5, 2012)

Mailed: March 5, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re OurPet’s Company ________ Serial No. 76699927 _______ John D. Gugliotta, P.E. for OurPet’s Company. Katy Halmen, Trademark Examining Attorney, Law Office 109 (Gwen Stokols, Acting Managing Attorney). _______ Before Seeherman, Zervas and Taylor, Administrative Trademark Judges. Opinion by Seeherman, Administrative Trademark Judge: OurPet’s Company has appealed from the final refusal of the trademark examining attorney to register ON DEMAND for “automated pet appliances, namely, feeders and waterers” in Class 7.1 Registration has been refused 1 Application Serial No. 76699927, filed October 19, 2009 pursuant to Section 1(b) of the Trademark Act (intent-to-use). The application also includes “automated pet appliances, namely litter boxes” in Class 21, but in the final Office action the examining attorney withdrew the refusal of registration with respect to this class. We note that in its brief applicant has presented arguments that its mark is not descriptive of litter boxes, and in its reply brief applicant has argued that the mark THIS OPINION IS NOT A PRECEDENT OF THE TTAB Ser No. 76699927 2 pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that applicant’s mark is merely descriptive of its goods in Class 7. The appeal has been fully briefed. We affirm the refusal. First, we turn to some procedural issues. In its appeal brief applicant has made the assertions that “there currently exists numerous third-party registrations that use the terms ‘ON DEMAND’ within the body of the mark,” and that “a cursory basic word search of the trademark database indicates over 1700 listings….” Brief, p. 4. The examining attorney has objected because no third-party registrations have been made of record. We note that this reference to third-party registrations was made for the first time in applicant’s brief, and is the entirety of the information applicant has provided. Because this statement is unsupported by any evidence whatsoever, we have given it no probative value. Applicant also has made an objection. In the examining attorney’s appeal brief she asks that we take is also not descriptive of access doors. Although “access doors” was in the identification of goods when the application was filed, applicant amended its application to delete this item in its July 9, 2010 response to the first Office action. As noted, the examining attorney withdrew the refusal with respect to litter boxes in Class 21 before briefs were filed in the appeal. Ser No. 76699927 3 judicial notice of certain dictionary definitions. In its reply brief applicant asks that we not consider the definitions. With respect to the definition of “demand,” www.merriam-webster.com, applicant states that the definition is for “demand,” not “on demand,” although it recognizes that the definition for “demand” includes a subsidiary definition of “on demand”: “upon presentation and request for payment; also: when requested or needed