PVC Distributors, LLCDownload PDFTrademark Trial and Appeal BoardFeb 6, 2013No. 77686689 (T.T.A.B. Feb. 6, 2013) Copy Citation 0 Mailed: 2/6/2014 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re PVC Distributors, LLC ________ Serial No. 77686689 _______ Nancy Lord for PVC Distributors, LLC. James MacFarlane, Trademark Examining Attorney, Law Office 104 (Chris Doninger, Managing Attorney). _______ Before Quinn, Cataldo and Gorowitz, Administrative Trademark Judges. Opinion by Quinn, Administrative Trademark Judge: PVC Distributors, LLC (“applicant”) has filed an application to register on the Supplemental Register the designation FlexPVC (in standard characters) for “computerized on-line retail store services in the field of non-metal pipes, hoses, and tubing, fittings for non-metal pipes, hoses and tubing, pipe cutters, clamps, and other tools for working with non-metal pipes, hoses, and tubing, chemical compounds for use THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77686689 2 with non-metal pipes, hoses, and tubing” (in International Class 35).1 The trademark examining attorney refused registration on the Supplemental Register under Section 23(c) of the Trademark Act, 15 U.S.C. § 1091(c), on the ground that applicant’s proposed mark, when used in connection with applicant’s services, is generic. When the refusal was made final, applicant appealed. Applicant and the examining attorney filed briefs. Before turning to the merits of the appeal, an evidentiary matter and a procedural matter require our attention. With respect to the first matter, applicant attached additional evidence to its brief, and the examining attorney objected to the untimely submission. The evidence comprises many third- party registrations of FLEX-type marks and several PVC-type marks, all issued on the Principal Register, as well as excerpts of third-party Internet websites. Trademark Rule 2.142(d) provides that the record in the application should be complete prior to the filing of an appeal. The Board will ordinarily not consider additional evidence filed with the Board by applicant or the examining attorney after the appeal is filed. Thus, exhibits attached to a brief that were 1 Application Serial No. 77686689, filed March 9, 2009, alleging first use anywhere and first use in commerce at least as early as September 30, 2002. Serial No. 77686689 3 not made of record during examination are untimely, and generally will not be considered. See, e.g., In re District of Columbia, 101 USPQ2d 1588, 1591-92 (TTAB 2012), aff’d, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013). On the same point, evidentiary references made in briefs but not supported by timely submissions may not be considered. See In re Procter & Gamble Company, 105 USPQ2d 1119, 1120 (TTAB 2012). Accordingly, we have not considered the evidence attached to applicant’s appeal brief or any remarks relating thereto in the brief. The second matter concerns applicant’s perceived “procedural improprieties” committed by the examining attorney. More specifically, applicant points out that the “acquired genericness” refusal was not raised for more than four years of examination, and that the examining attorney’s failure to inform applicant of the substance of a Letter of Protest deprived applicant of the knowledge of how the Letter may have influenced the decision to hold the mark to be generic. In applicant’s words, “[i]t is as difficult to rebut allegations that are made in secret as it is to understand the moving target of the rejections of this suggestive mark.” (Brief, p. 22). The examining attorney responded in detailed fashion to each of applicant’s allegations. The examining attorney acknowledges that an amendment to the Supplemental Register was Serial No. 77686689 4 suggested in the first Office action, and apologizes for any confusion that may have resulted from this suggestion and the eventual refusal to register on the Supplemental Register issued over four years later. The examining attorney further notes that trademark rights are not static, and that registrability must be determined on the basis of the facts and evidence in the record at the time registration is sought, citing In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010). As the examining attorney points out, it was not until applicant made its claim of acquired distinctiveness that the examining attorney could make a genericness refusal, citing Trademark Manual of Examining Procedure (“TMEP”) § 1209.02(a) (October 2013). While the prolonged examination/prosecution of this application may not be a model of expediency, we see no meaningful deviation from acceptable standard practice and procedure on the examining attorney’s part. See TMEP §§ 1209.02(a), 1209.02(a)(i). Further, applicant had ample opportunity to respond to the genericness refusal, regardless of how it was categorized by the examining attorney or applicant. As to the Letter of Protest allegations, the examining attorney indicates that applicant has misread the entries in the Serial No. 77686689 5 electronic application file.2 More significantly, the examining attorney unequivocally states “no such letter was received by the Office and no action [the refusal to register on the Supplemental Register grounded on genericness] was taken pursuant to any such letter.” (Brief, unnumbered p. 18). We accept the examining attorney’s statement and find no impropriety in this regard. In sum, applicant’s remarks regarding errors and examination irregularities essentially are nothing more than amplifications on why it views the refusal to register as erroneous; thus, we have considered these remarks, but only to that extent. We now turn our attention to the merits. A brief review of the prosecution history is believed to be helpful (more details of which appear in applicant’s Brief, pp. 4-11). The examining attorney, in the first Office action, refused registration under Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the ground that the applied-for mark is merely descriptive. Applicant responded by arguing that its designation is just suggestive, with applicant itself coining the mark in 2002. In the alternative, applicant asserted a claim of acquired distinctiveness under Section 2(f), 15 U.S.C. § 1052(f), based on five years of continuous and 2 Applicant speculates that correspondence was sent to the Office from the owner of the website flexpvc.net, Flexible PVC of Sharpsburg, PA, “a company that has intentionally copied [applicant’s] mark for several years.” (Brief, p. 3). Serial No. 77686689 6 substantially exclusive use. When the examining attorney refused registration based on the view that the mere claim of five years of use was insufficient to establish acquired distinctiveness, applicant submitted additional evidence in the form of declarations and supporting exhibits. In the next Office action, the examining attorney continued the refusal based on the insufficient Section 2(f) showing, and applicant responded with additional argument and evidence. The examining attorney again continued the refusal, this time indicating that the applied-for mark was highly descriptive, and observing that no amount of proof of acquired distinctiveness can transform a generic term into a registrable trademark. Applicant responded by maintaining its view that the mark was only suggestive and, in the alternative, that the mark was registrable under Section 2(f); attachments accompanied the response. The examining attorney continued the refusal, but did not offer any additional evidence; the examining attorney repeated his observation that no amount of proof of acquired distinctiveness can transform a generic term into a registrable trademark, while at the same time indicating that applicant could respond to the refusal by submitting additional evidence and arguments in support of registration. In a response filed November 21, 2011, applicant amended its application to seek registration on the Supplemental Register; this amendment was not made in the alternative. The Serial No. 77686689 7 examining attorney then refused registration on the Supplemental Register, finding that the proposed mark is generic. Applicant filed a response and the examining attorney, in the next Office action, issued a final refusal to register on the Supplemental Register on the ground of genericness, accompanied by evidence. Applicant requested reconsideration, offering a detailed critique of the examining attorney’s evidence of genericness. The examining attorney denied the request for reconsideration, and this appeal ensued. So as to be clear, the sole issue in this appeal is whether or not the designation sought to be registered is generic. Applicant’s amendment to seek registration on the Supplemental Register was not made as an alternative position to its Section 2(f) claim; that is, applicant has not requested registration on the Principal Register as its first choice, and on the Supplemental Register as a fallback position. See In re Eddie Z’s Blinds and Drapery Inc., 74 USPQ2d 1037, 1038-39 (TTAB 2005) (applicant’s amendment from the Principal to the Supplemental Register was not made in the alternative and, thus, the registrability of the term on the Principal Register was not an issue on appeal). See also Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 1215 (2013); TMEP §§ 816.04, 1212.02(c). Simply put, if the designation is generic, then registration on the Supplemental Register is not appropriate; if Serial No. 77686689 8 the designation is not generic, then it is registrable on the Supplemental Register. According to applicant, “flex” does not mean the same thing as “flexible,” especially in view of the incongruity created by the proposed mark as a whole in that PVC, polyvinylchloride, is a very rigid and hard polymer of vinyl chloride monomers; that is, products made of PVC are anything but flexible. In this regard, applicant maintains that its designation “conveys the incongruity of ‘flexiblerigid’ plastic polymers sold at an on- line retail store.” (Response, 8/13/09). Applicant argues that the “shortened term ‘flex’ that is closer to a flex of muscles as a flexible pipe is a classical suggestive term.” (Brief, p. 8). With respect to the bulk of the examining attorney’s evidence, namely third-party usage, applicant points out that none of the third-party uses has been shown to pre-date applicant’s first use and, moreover, most of the uses include links to applicant’s website, thereby indicating applicant as the source of the products branded “Flex PVC” or “flex PVC.”3 3 Applicant’s main argument against this evidence is that all of the third-party usage occurred after applicant’s first use. This point is not persuasive. The fact that applicant may be the first user of a designation is not dispositive on the issue of genericness. In re Greenliant Sys. Ltd., 97 USPQ2d 1078, 1083 (TTAB 2010). See TMEP 1209.03(c). Even if a party is the first to use a particular term or designation, it cannot register it as a trademark if it falls into the public domain and becomes widely used in a generic manner by others in the industry. See Continental Airlines Inc. v. United Air Lines, Inc., 53 USPQ2d 1385, 1391-92 (TTAB 1999). “[T]he Board ... must assess each mark on the record of public perception submitted with the Serial No. 77686689 9 Applicant also touts the statements of fifty of its customers who recognize the designation FlexPVC as indicating applicant as the source of services offered under the designation. The examining attorney maintains that the designation sought to be registered is generic when used in connection with applicant’s services. In this connection, the examining attorney states that applicant’s retail services feature flexible PVC or “flex pvc” products, so that the designation FlexPVC, which is generic for the goods, is also generic for applicant’s services. There is a two-part test used to determine whether a designation is generic: (1) what is the genus of goods at issue? and (2) does the relevant public understand the designation primarily to refer to that genus of goods? H. Marvin Ginn Corp. v. Int'l Assn. of Fire Chiefs, Inc., 782 F.2d 987, 990, 228 USPQ 528, 530 (Fed. Cir. 1986). The public's perception is the primary consideration in determining whether a term is generic; that is, it is not necessary to show that the relevant public uses the term to refer to the genus, but rather application.” In re Nett Designs Inc., 236 F.2d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). See McCormick & Co., Inc. v. Summers, 354 F.2d 668, 148 USPQ 272, 276 (CCPA 1966) (“[R]egistrability of a mark must be determined on the basis of facts as they exist at the time when the issue of registrability is under consideration.”); In re Hoffman House Sauce Co., 137 USPQ 486, 487 (TTAB 1963) (registrability of the mark must be determined on the basis of all the facts as they exist at the time such issue is under consideration). Serial No. 77686689 10 the correct inquiry is whether the relevant public would understand the term to be generic. In re 1800Mattress.com IP LLC, 586 F.3d 1359, 92 USPQ2d 1682, 1685 (Fed. Cir. 2009); Loglan Inst. Inc. v. Logical Language Group Inc., 902 F.2d 1038, 22 USPQ2d 1531, 1533 (Fed. Cir. 1992). The Office has the burden of establishing by clear evidence that a designation is generic and thus unregistrable. In re Merrill Lynch, Pierce, Fenner and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987). Evidence of the public's understanding of a term may be obtained from any competent source, including testimony, surveys, dictionaries, trade journals, newspapers and other publications. Loglan Inst. 22 USPQ2d at 1533; Dan Robbins & Associates, Inc. v. Questor Corp., 599 F.2d 1009, 202 USPQ 100, 105 (CCPA 1979). The general category of services or “genus” involved here is online retail store services featuring non-metal pipes, hoses and tubing, and fittings, clamps, tools and chemicals for use therewith. Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991) (“[A] proper genericness inquiry focuses on the description of services set forth in the [application or] certificate of registration.”). The non-metal pipes include flexible PVC pipes as confirmed by applicant itself on its website: “FlexPVC.com is a wholesale stocking distributor of Flexible PVC Pipe.” Serial No. 77686689 11 The second part of the genericness test is whether the relevant public understands the designation to refer to that class of services. The relevant public for a genericness determination is the purchasing or consuming public for the identified services. Magic Wand Inc. v. RDB Inc., 19 USPQ2d at 1553. Because there are no restrictions or limitations to the trade channels or classes of consumers for applicant’s online retail store services of non-metal pipes and related goods, the relevant consuming public comprises ordinary consumers who purchase and use such goods for their plumbing needs. A term that is generic for goods is descriptive of retail store services featuring those goods, when the goods are not a significant item typically sold in the type of store in question. In re Pencils Inc., 9 USPQ2d 1410 (TTAB 1988) (PENCILS held merely descriptive of office supply store services). However, where the matter sought to be registered identifies the primary articles of a store or distributorship service, the term is considered generic. See, e.g., In re Tires, Tires, Tires, Inc., 94 USPQ2d 1153, (TTAB 2009) (TIRES TIRES TIRES generic for retail tire store services); In re Lens.com, Inc., 83 USPQ2d 1444 (TTAB 2007) (LENS generic for “retail store services featuring contact eyewear products rendered via a global computer network”); In re Eddie Z’s Blinds & Drapery, Inc., supra (BLINDSANDDRAPERY.COM generic for retail Serial No. 77686689 12 store services featuring blinds, draperies, and other wall coverings, conducted via the Internet); In re Candy Bouquet Int’l, Inc., 73 USPQ2d 1883 (TTAB 2004) (CANDY BOUQUET generic for “retail, mail, and computer order services in the field of gift packages of candy”); In re A La Vieille Russie, Inc., 60 USPQ2d 1895 (TTAB 2001) (RUSSIANART generic for dealership services in the field of fine art, antiques, furniture, and jewelry); In re Log Cabin Homes Ltd., 52 USPQ2d 1206 (TTAB 1999) (LOG CABIN HOMES generic for retail outlets selling kits for building log homes); In re Bonni Keller Collections Ltd., 6 USPQ2d 1224 (TTAB 1987) (LA LINGERIE generic for retail stores specializing in the sale of lingerie); In re Wickerware, Inc., 227 USPQ 970 (TTAB 1985) (WICKERWARE generic for mail order and distributorship services in the field of products made of wicker); In re Half Price Books, Records, Magazines, Inc., 225 USPQ 219 (TTAB 1984) (HALF PRICE BOOKS RECORDS MAGAZINES generic for retail book and record store services). The term “flex” is defined, in pertinent part, as follows: “to bend (something pliant or elastic).” The American Heritage Dictionary of the English Language (4th ed. 2009). We take judicial notice of the dictionary definition of “PVC”: “Synthetic resin, an organic polymer made by treating vinyl chloride monomers with a peroxide. It may be blended with more Serial No. 77686689 13 rubbery polymers or copolymerized with other vinyls to obtain products with desired properties.” (merriam-webster.com).4 Applicant’s website (flexpvc.com) shows the following uses by applicant: “FlexPVC.com is a wholesale stocking distributor of Flexible PVC Pipe”; “We sell flexible pvc pipe by the roll or by the foot”; “As flexible as ... well you get the idea!”; “Replace rigid PVC pipe with flexible PVC pipe”; “Flex PVC Pipe Specs”; and “See how tough flex PVC Pipe is!”. The record includes several excerpts of third-party websites showing uses of either “flexible PVC” or “flex PVC,” a sample of which follows: Little Giant T 1½ 50 BFPVC Flex PVC Tubing (plumbersurplus.com) Aqua Flex PVC Pipe Flexible PVC pipe simplifies plumbing by eliminating the need for elbows and joints. (garden.com) Free Ground Shipping With All Flex PVC Pipe Flexible PVC Pipe is available... (pvcfittingsdirect.com) Is Flex PVC safe to use? (reefs.com) Flex PVC, 1-1/2 (rainharvest.com) Black Flex PVC Pipe (pondmerchant.com) 4 Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1590 n.8 (TTAB 2008) (online reference works which exist in printed format or have regular fixed editions are proper subject matter for judicial notice). Serial No. 77686689 14 Orbit ¾” X 50’ Flex PVC Pipe (lowes.com) Excelon Flex PVC 5011 White (sustainablesupply.com) Flex PVC (tbaquatics.com) With rigid PVC, hold the joint together about a minute to ensure a tight fit, about two minutes with flex PVC. (poolandspa.com) So I’m thinking of going to flex pvc or regular schedule 40....Would flex pvc be better? (wetwebmeida.com) Flex pvc woes (gardenweb.com/forums) Flexible PVC, Vinyl Tubing, & Kinkfree Tubing for Ponds & Water Gardens 3 inch Flex PVC 50 Foot Roll (watergarden.com) Flexible PVC Conduit Flex Pipe Flex Tubing (aubuchonhardwarestore.com) With such a strong consumer demand, extensive development has created a diverse range of new flexible PVC products which are reliable and affordable. (npcusa.com) Flexible PVC Pipe (drsfostersmith.com) Flexible PVC Pipe (aquaticeco.com) Flex PVC – spigot hook up (sprinklertalkforum.com) Serial No. 77686689 15 Flexible PVC Pipe Flexible PVC Hose (plumbingstore.com) Applicant countered with its own evidence to show that the involved designation is capable of acting as a source indicator of applicant’s services. In support of its earlier claim of acquired distinctiveness, applicant submitted declarations.5 Eric Gray, applicant’s operations manager, describes applicant as a wholesale stocking distributor for plumbing, garden, irrigation, fountain, pond, greenhouse, landscaping, swimming pool, farming, spa, hot tub, and whirlpool bathtub supplies. Mr. Gray states that applicant has supplied its services under the designation FlexPVC to over 17,000 customers in all fifty states. Mr. Gray further states that applicant’s use over a seven-year period has resulted in consumers’ perceptions of FlexPVC as identifying services provided by applicant, and that applicant is not aware of any third parties using the same designation for the same services. Marichelle Gray, applicant’s managing member, declared, in relevant part, that applicant “has expended thousands of dollars a year in advertising” its services, including on Google 5 We reiterate that registrability on the Principal Register is no longer at issue. Although the declarations of applicant and the statements of its customers were submitted in support of the earlier claim of acquired distinctiveness, we have considered this evidence to the extent it may be viewed in support of applicant’s present claim that its designation is capable of distinguishing applicant’s services from the services of others. Serial No. 77686689 16 “adwords” and at trade shows; and that applicant, through its website, has generated “multi-millions of dollars of sale.” The record also includes the statements of fifty customers of applicant.6 The statements are identical in language, with each individual stating that he/she has been a customer of applicant for a certain number of years, and that he/she is familiar with applicant’s products and services, including applicant’s online retail store services. Each of the individuals then makes the identical claim, which comprises the entirety of the statement: I regard the name FLEXPVC as identifying on- line retail store services in the field of non-metal pipes, hoses, and tubing, fittings for non-metal pipes, hoses and tubing, pipe cutters, clamps, and other tools for working with non-metal pipes, hoses, and tubing, and chemical compounds for use with non-metal pipes, hoses, and tubing associated with PVC Distributors only and not of any other company offering these services or similar services. Based on the mixed record before us, we find that the designation FlexPVC, as used by applicant, is not generic for applicant’s featured goods and, thus, for applicant’s services. 6 Although each of the statements is captioned as a “declaration,” the statements technically are not declarations as that term is used by the Office. See Trademark Rule 2.20. “When a declaration is used in lieu of an oath, the party must include in place of the oath (jurat) the statement that ‘all statements made of his or her own knowledge are true and all statements made on information and belief are believed to be true.’” TMEP § 804.01(b). The declaration must also attest to an awareness of the penalty for perjury. Id. None of the statements includes the required language of a declaration. Serial No. 77686689 17 Accordingly, the designation is registrable on the Supplemental Register. See In re Bush Bros. & Co., 884 F.2d 569, 12 USPQ2d 1058, 1059 (Fed. Cir. 1989) (“The test is not whether the mark is already distinctive of the applicant’s goods, but whether it is capable of becoming so....Judicial focus on the Supplemental Register has been sparse, perhaps because of the ease of registration thereon, coupled with the general policy favoring registration as a matter of public information and for other benefits.”); Turtle Wax, Inc. v. Blue Coral, Inc., 2 USPQ2d 1534, 1536 (TTAB 1987) (“The mere possibility of trademark significance, no matter how remote, may not be disregarded if it could be possible, under certain conditions, that the mark possesses the capacity to distinguish one’s goods.”). Genericness is a fact-intensive determination, and on balance we conclude that the Office has not met its difficult burden of establishing by clear evidence that the designation FlexPVC is generic for applicant’s services. As noted earlier, the Office bears the burden of proof, and genericness must be shown by clear evidence. Furthermore, any doubts must be resolved in applicant’s favor. In re Trek 2000 International Ltd., 97 USPQ2d 1106, 1113 (TTAB 2010). The dictionary evidence showing the meaning of “flex” as “to bend,” as well as some interchangeable use of “flex” and “flexible” with “PVC” on a few third-party websites, tend to Serial No. 77686689 18 weigh in favor of a finding of genericness. However, as applicant is quick to point out, “flex” is not the same as “flexible,” and there is no clear evidence to establish that consumers understand “flexible PVC” and “FlexPVC” to be equivalent. The third-party websites introduced by the examining attorney are proper sources of evidence as to the meaning of the proposed mark and the manner in which it is used in relation to the goods and/or services. In re Reed Elsevier Properties Inc., 482 F.3d 1376, 82 USPQ2d 1378 (Fed. Cir. 2007); In re Analog Devices Inc., 6 USPQ2d 1808 (TTAB 1988), aff’d, 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989).7 We have no doubt that the evidence of record establishes that the designation “flexible PVC” (or “flexible pvc”) is generic for flexible PVC products and for online retail store services featuring such goods. The designation sought to be registered, however, is FlexPVC. The instant record shows mixed uses, both “Flex PVC” (with the letter “F” in “Flex” capitalized as in the manner of a trademark), and “flex PVC,” as well as “flexible PVC.” The uses of “Flex PVC” may, in fact, be references to applicant’s 7 Some of the examining attorney’s evidence showing generic use of the designation “Flexible PVC” appears in books and on websites of foreign origin (e.g., Great Britain and Canada). Although we have considered this evidence, it is entitled to limited probative value. See In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007); In re King Koil Licensing Co., 79 USPQ2d 1048, 1050 (TTAB 2006). In making our decision, we have focused on the third-party usage in this country. Serial No. 77686689 19 featured products or other related products rather than generic use; in this regard, applicant asserts that “nearly all [of the third-party websites showing uses of “Flex PVC” or “flex PVC”] contain links to the applicant’s site.” (Brief, p. 16). Thus, a number of the websites would appear to show recognition that the source of online retail store services featuring “Flex PVC” or “flex PVC” products is applicant. See In re Merrill Lynch, 4 USPQ2d at 1143; In re Tennis Industry Assoc., 102 USPQ2d 1671, 1680-81 (TTAB 2012). We have carefully considered the statements of applicant and its customers in concluding that the designation involved herein is capable of distinguishing applicant’s services. The statements of customers provide direct evidence of consumer perceptions and are persuasive in showing that applicant’s proposed mark is registrable. That these statements are not declarations, are identically worded and were undoubtedly prepared by a lawyer does not necessarily eliminate or diminish the probative value of this evidence. In re Data Packaging Corp., 453 F.2d 1300, 172 USPQ 396, 399 (CCPA 1972); In re Pingel Enter., 46 USPQ2d 1811, 1822 (TTAB 1998); In re Failure Analysis Assocs., 1 USPQ2d 1144, 1147 (TTAB 1986). When confronted with a mixed record on the issue of genericness, the Federal Circuit has instructed the Board to side with applicant. See In re America Online Inc., 77 USPQ2d Serial No. 77686689 20 1618, 1623 (TTAB 2006), citing In re Merrill Lynch, 4 USPQ2d at 1143. Similarly, here we find that “the evidence of generic use is offset by applicant’s evidence that shows not only a significant amount of proper trademark use but also trademark recognition” by third parties. Id. Thus, we cannot conclude that members of the relevant public primarily use or understand the proposed mark FlexPVC to refer to the genus of the services. At a minimum, the record creates doubt and we are constrained to resolve that doubt in favor of applicant.8 Accordingly, we conclude that the designation FlexPVC is not generic for online retail store services featuring flexible PVC pipes, hoses and tubing, and goods related thereto. The designation FlexPVC is capable of distinguishing applicant’s services from those of others. Decision: The refusal to register on the Supplemental Register is reversed. 8 We readily acknowledge that this is a close case. In a cancellation proceeding brought by a competitor, based on a different record, ultimate resolution of genericness might be different, but we have decided this case on the record before us at this time. Copy with citationCopy as parenthetical citation