Petcraft, Inc.

Trademark Trial and Appeal Board

Sep 27, 2000

No. 75380120 (T.T.A.B. Sep. 27, 2000)

Paper No. 14
RLS/JW
9/27/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Petcraft, Inc.
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Serial No. 75/380,120
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Robert J. Schaap for Petcraft, Inc.
Kim Saito, Trademark Examining Attorney, Law Office 109
(Ron Sussman, Managing Attorney).
_______
Before Simms, Cissel and Bottorff, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Petcraft, Inc. (applicant), a California corporation,
has appealed from the final refusal of the Trademark
Examining Attorney to register the mark DOG BAGGIES for
goods originally described as disposable bags specifically
adapted to enable pick up and ready disposal of animal
feces.1 The Examining Attorney has refused registration
under Section 2(d) of the Act, 15 USC §1052(d), and has

1 Application 75/380,120, filed October 27, 1997, based upon an
allegation of a bona fide intent to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/380,120
2
issued a requirement that applicant further identify its
goods, as well a requirement to disclaim the word “DOG”
apart from the mark as shown. Applicant and the Examining
Attorney have submitted briefs, and applicant requested an
oral hearing. However, applicant’s attorney did not appear
for the oral argument, so no hearing was held.
We affirm.
Identification of Goods
Initially, the Examining Attorney required applicant
to indicate whether its disposable bags were made of paper
or plastic. In response, applicant amended its goods to
the following:
Hand-held devices capable of being fitted
upon a hand of a user for engaging, picking
up and temporarily holding animal feces for
later disposal and which are formed of
flexible and bendable sheet material.
In response, the Examining Attorney stated that the
proposed amendment was unacceptable because the wording
designates goods which are not within the scope of the
identification set forth in the original application. More
particularly, the Examining Attorney stated that the terms
“devices” and “engaging and temporarily holding animal
feces for later disposal” have expanded the scope of the
goods set forth in the original application. Thereafter,
applicant submitted another proposed amendment as follows:
Serial No. 75/380,120
3
Hand-held disposable, hand-insertable
receptacles made of plastic or paper and
specifically adapted to enable pick up and
ready disposal of animal feces.
With respect to this proposed amendment, it is the
Examining Attorney’s position that the word “receptacles”
is indefinite and not within the scope of the original
description of goods.
Applicant contends that its goods are not merely bags.
The goods under which the instant mark is
used may initially adopt the form of a
disposable plastic bag, similar to a sandwich
bag, but they are modified beyond that of a
sandwich bag. Each of the goods are [sic]
actually adapted to be worn on the hand of a
user. Admittedly, a user could insert his or
her hand into a disposable plastic sandwich
bag. However, the bag devices of the instant
application are readily turned inside out and
are provided with a material, such as a
gauge-like material2, at a lower end adapted
to engage and pick-up the animal feces. In
this way, the user will not experience the
rather objectionable experience of actually
engaging an animal feces. Moreover, this
gauge-like material actually holds the animal
feces, such that when the bag is turned
inside out, the feces are retained on the
inside and held by the gauge-like material.
Moreover, any moisture which is contained in
the animal feces is not imparted to the
user’s hand.
In addition to the foregoing, the device of
the present application can adopt other
forms, such as glove-like devices and the
like. Consequently, it is urged that the

2 It is not clear to the Board what this means. We presume that
applicant intended “gauze-like material.”
Serial No. 75/380,120
4
device is not merely a bag as the Examining
Attorney would appear to suggest.
Amendment filed September 21, 1998, p. 4.
The Examining Attorney’s requirement for a more
definite description of goods and his holding that the
amended goods are beyond the scope of the originally
described goods are well taken for the reasons given by the
Examining Attorney. See pp. 6-8 of Examining Attorney’s
appeal brief. See also TMEP §804.09. This requirement is
affirmed. For the purposes of our decision, we will
consider applicant’s goods to be disposable bags made of
either paper or plastic specifically adapted to enable pick
up and ready disposal of animal feces.
Disclaimer
The Examining Attorney has taken the position that the
word “DOG” should be disclaimed because it is merely
descriptive of the purpose or use of applicant’s goods.
With respect to this requirement, we note that applicant
failed to address this requirement in its appeal brief. We
view applicant’s failure to brief this issue as a
concession of the matter in question. See In re Big
Daddy’s Lounges Inc., 200 USPQ 371, 373 (TTAB 1978). We
hasten to add, however, that even if we considered this
issue on brief, we would nevertheless affirm the
Serial No. 75/380,120
5
requirement because this word is merely descriptive of the
function or use of applicant’s goods. Accordingly, the
requirement for a disclaimer of this word is also affirmed.
Likelihood of Confusion
The Examining Attorney has refused registration under
Section 2(d) of the Act on the basis of Registration No.
613,322, issued October 4, 1955 (second renewal) covering
the mark BAGGIES for “bags made of flexible transparent
sheeting, for general utility wrapping and storing
purposes.” It is the Examining Attorney’s position that
applicant’s mark merely adds the descriptive word “DOG” to
the registered mark, which addition is not sufficient to
overcome the likelihood of confusion. With respect the
goods, it is the Examining Attorney’s position that
registrant’s goods are not limited to food storage uses but
may be used for the same purpose as applicant’s goods. In
this regard, the Examining Attorney has made of record
numerous excerpts from the Nexis computer database which
show that both plastic and paper bags have been used for
the purpose of disposal of animal feces.
Applicant argues, on the other hand, that there will
be no confusion between applicant’s mark and registrant’s
“strong and distinctive” mark. Appeal brief, p. 8.
Concerning the goods, applicant contends that registrant’s
Serial No. 75/380,120
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goods are bags used for general purpose wrapping and the
temporary storage of food, while applicant’s goods are for
the disposal of animal feces and may have a cloth or fabric
element to them. Moreover, applicant contends that its
goods are or will be sold with other pet supplies to
different purchasers.3 Accordingly, applicant contends that
the goods of applicant and registrant are sufficiently
different to avoid any likelihood of confusion.
Upon careful consideration of this record and the
arguments of the attorneys, we agree with the Examining
Attorney that confusion is likely. Concerning the marks,
applicant has merely added the descriptive word “DOG” to
what applicant admits is registrant’s “well-known” mark.
There is no question that the term BAGGIES in applicant’s
mark DOG BAGGIES is the more dominant and significant
origin-indicating feature of the mark. In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). Also,
applicant has acknowledged the renown of the registered
mark, which is entitled to more protection in view of its
strength. Kenner Parker Toys Inc. v. Rose Art Industries
Inc., 963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir. 1992). While
the applicant’s bags may be specifically adapted to pick up

3 Applicant does admit, however, that homeowners may use both
applicant’s and registrant’s goods.
Serial No. 75/380,120
7
and dispose of animal feces, the evidence demonstrates that
plastic bags, or goods very similar to registrant’s bags
for storage and wrapping, may be used for the same purpose.
Also, these goods are relatively inexpensive and may well
be purchased by the same ordinary consumers. In this
regard, there is no limitation on the channels of trade of
applicant’s goods, and they may be sold in the same grocery
stores and other retail stores as registrant’s goods. A
purchaser, aware of registrant’s well-known BAGGIES brand
bags, who then encounters applicant’s DOG BAGGIES
disposable bags intended for the disposal of animal feces,
is likely to believe that these goods come from the same
source, because of the similarities of the marks.
Serial No. 75/380,120
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Decision: The refusals of registration on the basis
of the requirements of the Examining Attorney are affirmed;
the refusal of registration under Section 2(d) is also
affirmed.
R. L. Simms
R. F. Cissel
C. M. Bottorff
Administrative Trademark
Judges, Trademark Trial
and Appeal Board