Par-Pak Ltd.

Trademark Trial and Appeal Board

Jun 21, 2013

No. 85079918 (T.T.A.B. Jun. 21, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
June 21, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Par-Pak Ltd.
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Serial No. 85079918
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James R. Menker of Holley & Menker, P.A. for Par-Pak Ltd.

Jessica Powers Ludeman, Trademark Examining Attorney, Law Office 104 (Chris
Doninger, Managing Attorney).
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Before Holtzman, Taylor and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Par Pak Ltd. (applicant) filed an application to register the mark TAMPER-
VISIBLE for “plastic food containers” in Class 20.1
The examining attorney refused registration pursuant to Section 2(e)(1) of
the Trademark Act of 1946, 15 U.S.C. §1052(e)(1), on the ground that applicant’s

1 Application Serial No. 85260850, filed July 7, 2010, pursuant to Section 44(e) of the
Trademark Act on the basis of applicant’s Canadian Reg. No. TMA801393 (issued July 5,
2011) and claiming priority pursuant to Section 44(d) of the Trademark Act based on
applicant’s Canadian App. No. 1486815 (filed June 28, 2010).

Serial No. 85079918

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mark is merely descriptive. The refusal was made final in the Office action dated
March 7, 2012. Applicant has appealed the refusal.
As a preliminary matter, the examining attorney has objected to applicant’s
reference to a number of third-party registrations as being untimely. We agree.
Applicant’s first and only reference to these registrations is in its appeal brief.
Evidence submitted after an appeal is untimely and will not ordinarily be
considered by the Board. Trademark Rule 2.142(d); 37 CFR § 2.142(d).2
Consideration will be given to untimely evidence if the nonoffering party does not
object to the new evidence and discusses the new evidence or otherwise
affirmatively treats it as being of record. In re Litehouse Inc., 82 USPQ2d 1471,
1475 n.2 (TTAB 2007); TBMP § 1201.03. In the case at bar, the examining attorney
did object to the new evidence and did not discuss it or otherwise treat it as being of
record. Accordingly, the objection is sustained and third-party registrations have
not been considered.
We turn next to the substantive refusal on the ground that the mark is
merely descriptive. A term is deemed to be merely descriptive of goods or services,
within the meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), if
it forthwith conveys an immediate idea of an ingredient, quality, characteristic,
feature, function, purpose or use of the goods or services. In re Abcor Development

2 In addition, the third-party registrations were not properly made of record since applicant
did not submit copies of the registrations themselves or the electronic equivalent thereof
from the USPTO’s electronic databases. See In re Smith and Mehaffey , 31 USPQ2d 1531,
1532 n.3 (ITAB 1994).

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Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). A term need not
immediately convey an idea of each and every specific feature of the applicant’s
goods or services in order to be considered to be merely descriptive; rather, it is
sufficient that the term describes one significant attribute, function or property of
the goods or services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973).
The examining attorney asserts that mark conveys an immediate idea of the
function or purpose of applicant’s goods. Examining Attorney’s Brief, p. 3. In
support of this position, the examining attorney has submitted web articles, blogs
and a patent in which term “tamper visible” is used descriptively, examples of
which are: (1) an article from the publication, allBusiness, entitled “Packaging &
Manufacturing,” the subject matter of which is packaging in confectionery plants,
and which discusses utilizing tamper visible films to improve product protection;3
(2) a blog dated November 2, 2011 entitled “airtight coffee containers,” which
discusses the use of tamper visible covers for providing safe food products;4 and (3)
Patent No. 4480760 entitled “Tamper visible indicator for container lid,” which is
for an invention that consists of “a disc or other insert placed on the neck of a
container to provide a visible indication that the lid of the container had been
removed or tampered with.5

3 Office action dated August 9, 2011.
4 Located at largeairtightcontainers424.binkweb.com-from Office action dated March 7,
2012.
5 Office action dated March 7, 2012.
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Applicant argues that this evidence is flawed because it does not relate to
plastic food containers. We disagree. The evidence establishes that the term
“tamper visible” is used to describe a feature of products that is tamper evident.6
The examining attorney also submitted excerpts from web sites evidencing
the descriptive use of both “tamper visible” and “tamper-visible” in connection with
applicant’s goods. Applicant’s goods, as sold on the PJP MarketPlace website
(www.pjpmarketplace.com), are described as:
Par Pak Container 12 oz Hinged Lid Tamper Visible
Utility Pete (description: Clear hinged lid PETE plastic
12oz food container is designed to be tamper evident. Use
in grab and go cases or merchandising of food. Tamper
evident seal helps to protect food tampering and
contamination from opening container. (Office action
dated March 7, 2012).
and applicant’s goods as sold on the Unisource Canada website (www.unisource.ca),
are described as:
- POLYETHYLENE 24 OZ TAMPER
VISIBLE HINGED CONTAINER (130/CS)
(Code 273340),
-BREAK-AWAY POLYETHYLENE 32 OZ
TAMPER VISIBLE HINGED CONTAINER
(120/CS) (Code 273341), and
-TAMPER-VISIBLE POLYETHYLENE
BREAK AWAY CONTAINER
- (120/CS) (Code 273343)
- (120/CS) (Code 273344)

6 “Tamper-evident describes a device or process that makes unauthorized access to the
protected object easily detected.” Wikipedia definition submitted by applicant as an exhibit
to the Request for Reconsider dated August 31, 2012

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- (300C/S) ((Code 273345)
- (300C/S) ((Code 273345)
(Office action dated March 7, 2012). The term is used descriptively, rather than as
a source identifier, on both of these sites.
Applicant contends that the mark is not merely descriptive of its goods
because “[c]onsumers would not instantly know what [a]pplicant is offering or how
the product works merely by seeing [a]pplicant’s [m]ark [because] the TAMPER-
VISIBLE mark does not in and of itself describe a ‘plastic food container.’ ” Appeal
Brief, p. 7. Such contention is a misinterpretation of the law, which has long held
that:
whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods or services for
which registration is sought, the context in which it is
being used on or in connection with the goods or services,
and the possible significance that the term would have to
the average purchaser of the goods 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). Thus, the question is not
whether consumers could guess applicant’s product from its mark, but rather,
whether the mark forthwith conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of applicant’s plastic food
containers.
Applicant further contends that the mark is suggestive because:
“[b]y looking at Applicant’s Mark, consumers have no
immediate idea how the product works or what it does.
There could be many variations as to how a product may
be “tamper-resistant” or “tamper-proof” … Therefore,
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Applicant’s Mark is suggestive of some type of indicia that
would render evident any tampering to the packaging
rather than merely describe a specific feature of the
goods.”
Appeal Brief, p. 5. A mark is suggestive if, when the goods or services are
encountered under the mark, a multistage reasoning process, or the utilization of
imagination, thought or perception, is required in order to determine what
attributes of the goods or services the mark indicates. See, e.g., In re Abcor
Development Corp, 588 F.2d 811, 200 USPQ 215, 18 (CCPA 1978) and In re Mayer-
Beaton Corp., 223 USPQ 1347, 1349 (TTAB 1984).
No imagination, thought or perception is required to determine from the
mark TAMPER-VISIBLE applicant’s goods are tamper-evident. Accordingly, the
term is descriptive, not suggestive.
Applicant puts forth the proposition that the mark is not descriptive since the
combination of two or more descriptive components in a composite mark may result
in a non-descriptive mark. Appeal Brief, p. 6 (emphasis added). The key word in
this proposition is “may.” There is “an equally well recognized proposition that if
the combination of terms is as merely descriptive as the parts taken separately,
then the combination is not a valid trademark.” General Foods Corporation v.
Ralston Purina Company, 220 USPQ 990, 993 (TTAB 1984). Since the combination
of terms, TAMPER-VISIBLE is descriptive, the combination is not a valid
trademark.
Finally, applicant argues that “there are other ordinary descriptive terms
and phrases in the industry already in use and available to competitors,” and
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therefore, “there is no competitive need for other manufacturers to use applicant’s
mark.”7 This argument is not persuasive. “[I]t has been decided by this Board and
by the court above that the fact that the entire combination of terms sought to be
registered is not used in that exact combination by third parties is not conclusive
that the combination is not merely descriptive. Id.
Accordingly we find the term TAMPER-VISIBLE to be merely descriptive of
applicant’s “plastic food containers.”
Decision: The refusal to register is affirmed.

7 Applicant’s Brief, pp. 9-10.