Retail Brand Alliance, Inc.

Trademark Trial and Appeal Board

Sep 15, 2011

No. 77049126 (T.T.A.B. Sep. 15, 2011)

Hearing: April 20, 2011 Mailed: September 15, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Retail Brand Alliance, Inc.
________

Serial No. 77049126
_______

Stephen L. Baker and John M. Rannells of Baker and Rannells
PA for Retail Brand Alliance, Inc.

David Taylor, Trademark Examining Attorney, Law Office 112
(Angela Wilson, Managing Attorney).
_______

Before Cataldo, Taylor and Mermelstein,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Retail Brand Alliance, Inc. filed an application to
register on the Principal Register the mark BLACK FLEECE in
standard characters for the following goods, as amended:
belts; blouses; boots; bottoms; coats; dresses;
evening dresses; gloves; hats; hosiery; jackets;
men's suits, women's suits; mufflers; neckties;
pants; rainwear; scarves; shirts; shoes; shorts;
skirts; socks; suits; suspenders; sweaters; ties;
tops; trousers; and vests not made of fleece
fabric

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser. No. 77049126
2
in International Class 25.1 The application is based upon
an allegation of August 2007 as the date of first use of
the mark anywhere and in commerce. During the course of
examination of the application, applicant amended its
application in the alternative to seek registration of its
mark under Section 2(f) of the Trademark Act, based upon a
declaration of substantially exclusive and continuous use
of the mark in commerce since August 2007 and evidence
attached thereto.
The trademark examining attorney has refused
registration under Section 2(e)(1) of the Trademark Act on
the ground that applicant’s mark is deceptively
misdescriptive of its goods and that applicant’s evidence
is insufficient to show acquired distinctiveness of the
mark under Section 2(f) of the Act.2 When the refusal was
made final, applicant appealed. Applicant and the
examining attorney have filed briefs on the issues under
appeal, and applicant has filed a reply brief. In
addition, applicant and the examining attorney presented
arguments directed toward the issues on appeal in an oral
hearing held on April 20, 2011.

1 Application Serial No. 77049126 was filed on November 21, 2006.
2 The examining attorney also raised but withdrew refusals to
register based upon deceptiveness under Section 2(a) and mere
descriptiveness under Section 2(e)(1).

Ser. No. 77049126
3
With regard to the refusal to register under Section
2(e)(1), applicant acknowledges that because “the
recitation of clothing goods in the application at issue
states ‘not made of fleece fabric,’ the term ‘black fleece’
is facially misdescriptive of apparel that is not made of
black fleece.”3 However, applicant argues that “[t]he
record, as well as common sense, dictates the conclusion
that consumers are not likely to believe the facial
misrepresentation.”4 In the alternative, applicant argues
that it has made a prima facie showing that its BLACK
FLEECE mark has acquired distinctiveness under Section
2(f).
In support of its position, applicant has made of
record the following evidence:
advertisements, brochures, catalogs and invoices
showing applicant’s use since the mid-1800s of the
marks BROOKS BROTHERS, GOLDEN FLEECE, and the
“hanging lamb” design shown below, alone and in
combination with each other and additional wording
for a wide variety of clothing and clothing related
goods;

3 Applicant’s brief, p. 11.
4 Id.

Ser. No. 77049126
4

a hangtag for goods bearing its BLACK FLEECE mark; a
brochure from September 2006 announcing the launch
of the BLACK FLEECE line of clothing; a draft
brochure introducing the BLACK FLEECE line of
clothing from Fall 2007; and press clippings from
Internet websites including brandish.tv,
daveibsen.typad.com, brooksbrothers.com,
coolhunting.com, men.style.com, washingtonpost.com,
fashionweekdaily.com, gentrystyle.com, and
fashionsite.wwd.com;
the declaration of one of applicant’s salespersons,
Bella Raouf, attesting that: the BLACK FLEECE
collection was launched in August 2007 in
collaboration with the famous designer Thom Browne;
such collaboration was the first time applicant
hired a famous designer to create a line of
clothing; the BLACK FLEECE line received a great
deal of attention in trade journals, fashion
magazines and Brooks Brothers stores; clothing items
from the BLACK FLEECE collection are the most
Ser. No. 77049126
5
expensive products offered by applicant; BLACK
FLEECE products are displayed in a separate area or
department within Brooks Brothers stores and by a
separate link on the brooksbrothers.com website; and
the BLACK FLEECE collection is part of the present
trend for clothing companies to delineate fashion
lines using color references. Declarant also
attests that: applicant does not offer for sale any
products made of fleece material; and that no
consumers have expressed the belief that clothing
items from the BLACK FLEECE collection are made of
black fleece fabric;
the declaration of applicant’s chief merchandising
officer, Lou Amendola, attesting that: applicant is
the owner of the BROOKS BROTHERS trademarks; Brooks
Brothers offers several clothing lines, including
BROOKS BROTHERS, GOLDEN FLEECE and BLACK FLEECE;
that from the time of its launch in August 2007 and
the declaration date of December 15, 2008, applicant
expended $2 million promoting and advertising the
BLACK FLEECE collection; the BLACK FLEECE link on
the Brooks Brothers website has received nearly
141,000 visitors; the BLACK FLEECE line of clothing
has received nationwide publicity in trade journals,
Ser. No. 77049126
6
fashion magazines and applicant’s stores; numerous
celebrities have worn clothing from the BLACK FLEECE
collection, in particular at the 2008 Emmy Awards
ceremony; during 2008, BLACK FLEECE received over
167 million consumer impressions in printed
publications; and applicant has realized sales of
over $3.6 million in the United States;
the Amendola declaration also introduces the
following exhibits: a press kit for the BLACK
FLEECE launch; photographs of celebrities wearing
BLACK FLEECE clothing; BLACK FLEECE media placement
reports; and screenshots from brooksbrothers.com
displaying photos and descriptions of the BLACK
FLEECE products offered for sale;
the declaration of John M. Rannells, one of
applicant’s attorneys, introducing the following
exhibits: copies obtained from a search of the
Lexis database of a sampling of news articles from
March 2007 through July 2009 taken from third-party
periodicals such as The New York Times, Newsday,
Chicago Tribune, Los Angeles Times, New York
Magazine, The Washington Post, GQ, Glamour, Vanity
Fair, Time, Esquire, Vogue, Forbes, Fortune and
Harper’s Bazaar, containing unsolicited mention of
Ser. No. 77049126
7
clothing items under applicant’s BLACK FLEECE mark;
declarations of three individual consumers attesting
(1) to their recognition that BLACK FLEECE is the
name for a collection of Brooks Brothers clothing,
(2) that BLACK FLEECE is a trademark, and (3) that
declarants do not consider BLACK FLEECE to describe
the clothing within the collection; and the
declaration of the senior editor of WWD Men’s, Jean
Palmieri, attesting to 25 years in the fashion
industry, knowledge of the BLACK FLEECE line of
clothing, recognition of BLACK FLEECE as an upscale
and contemporary take-off and counterpart to
applicant’s GOLDEN FLEECE mark and collection, and
that consumers will not consider BLACK FLEECE
clothing to be made of black colored fleece
material;
the second declaration of Lou Amendola, essentially
updating information as of July 2009 from his first
declaration as follows: the BROOKS BROTHERS, GOLDEN
FLEECE, and hanging lamb design marks have been in
use since the mid-1800s and are very well-known in
the clothing industry; applicant’s customers have
not experienced confusion or believed that
applicant’s GOLDEN FLEECE products are gold-colored
Ser. No. 77049126
8
or made of fleece; similarly, applicant’s customers
do not believe that its BLACK FLEECE products are
black-colored or made of fleece; BLACK FLEECE is
intended to be perceived by customers as a variation
of applicant’s GOLDEN FLEECE mark; in February 2009
applicant opened its first free-standing BLACK
FLEECE store in Manhattan featuring BLACK FLEECE
clothing and related items; applicant has received
nearly 300,000 visitors to the BLACK FLEECE link on
its website; from January 2008 to the declaration
date, BLACK FLEECE received over 242 million
consumer impressions in printed publications;
applicant has realized sales of over $6.7 million in
the United States; and the January 2009 cover of GQ
magazine featuring the actress Jennifer Aniston
wearing nothing but a BLACK FLEECE necktie generated
2.8 million consumer impressions and 15.5 million
viewership impressions;
the second Amendola declaration also introduces the
following exhibits: a second press kit for the
BLACK FLEECE launch; additional photographs of
celebrities wearing BLACK FLEECE clothing; updated
BLACK FLEECE media placement reports; and
screenshots from brooksbrothers.com displaying
Ser. No. 77049126
9
photos and descriptions of the BLACK FLEECE products
offered for sale.
Furthermore, in its August 2, 2007 and May 15, 2008
responses to the examining attorney’s Office actions,
applicant listed a number of registered marks containing
designer names and colors (e.g. SAMSONITE BLACK LABEL and
NAUTICA BLUE) and marks consisting of the terms BLACK or
FLEECE and other terms (e.g. SILVERFLEECE, TWEED FLEECE,
BLACK SILK and BLACK COTTON). Because the examining
attorney did not advise applicant that such listing is
insufficient to make the registrations of record at a point
when the applicant could have corrected the error, the
examining attorney is deemed to have stipulated the list of
registrations into the record. See TBMP §1208.02 (3d ed.
2011) and authorities cited therein. Nonetheless, we will
only consider the information submitted by applicant. See
Id. Inasmuch as the information submitted by applicant in
this case only lists the marks and their registration
numbers, this evidence possesses no probative value
regarding the registrability of the applied-for BLACK
FLEECE mark. Applicant further will note that the Board
will not take judicial notice of third-party registrations.
See TBMP § 1208.02 (3d ed. 2011) and authorities cited
therein. Cf. In re Chippendales USA, Inc., 622 F.3d 1346,
Ser. No. 77049126
10
96 USPQ2d 1681 (Fed. Cir. 2010).5
The examining attorney, for his part, argues that the
mark BLACK FLEECE misdescribes the goods, which as
identified are “not made of fleece fabric.” The examining
attorney further argues that “the evidence of record
supports the examiner’s position that clothing goods of the
type provided by Applicant are often offered in black
fleece material.”6 Specifically, the examining attorney
argues that “the evidence of record demonstrates that the
description conveyed by the mark is plausible because
consumers regularly encounter goods that contain the
features or characteristics of the mark, namely, ‘black
fleece.’”7 The examining attorney argues in addition that
applicant’s evidence is insufficient to establish that
BLACK FLEECE has acquired distinctiveness.
In support of his position, the examining attorney has
made of record screenshots from commercial Internet
websites featuring clothing items made of black fleece
material. The following examples are illustrative:

5 Further, any expired registrations and pending and abandoned
applications are of no value. See Action Temporary Services Inc.
v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed.
Cir. 1989) (“[A] cancelled registration does not provide
constructive notice of anything”), and the applications show only
that they have been filed. See Interpayment Services Ltd. v.
Docters & Thiede, 66 USPQ2d 1463 (TTAB 2003).
6 Examining attorney’s brief, unnumbered p. 4.
7 Id. at 4-5.
Ser. No. 77049126
11
Jackets and gloves made of fleece material,
including black colored items;
(north-face.com)

Pullover sweaters in black fleece material;
(paddling.net)

Dresses, hats, gloves, capes, and coats made of
black fleece material;
(bestdressedchild.com)

Button trench over coat jacket made of black
fleece material;
(amiclubwear.com)

BT Couture ruffle jacket in black fleece
material;
(luvcharlie.com)

Women’s pants made of black fleece material;
(ffbdesigns.com) and

Women’s skirts made of black fleece material;
(cryoflesh.com).

Issues on Appeal
As noted above, applicant amended its application to
seek registration under Section 2(f) of the Trademark Act
in the alternative, reserving its contention that the BLACK
FLEECE mark is not deceptively misdescriptive. Cf. Yamaha
International Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d
1572, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988); and, e.g.,
Grand Canyon West Ranch LLC v. Hualapai Tribe, 88 USPQ2d
1501 (TTAB 2008). Applicant and the examining attorney
have presented arguments and evidence on both issues.
Thus, we must first determine whether BLACK FLEECE is
Ser. No. 77049126
12
deceptively misdescriptive as applied to the identified
goods under Section 2(e)(1). If so, we must then determine
whether BLACK FLEECE has acquired distinctiveness as
applied to such goods.
Deceptive Misdescriptiveness
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1), if it
forthwith conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use
of the goods or services. See, e.g., In re Gyulay, 820
F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). 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 those 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). Moreover, 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
Ser. No. 77049126
13
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).
See also In re Patent & Trademark Services Inc., 49 USPQ2d
1537 (TTAB 1998); In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990); and In re American
Greetings Corporation, 226 USPQ 365 (TTAB 1985). If a term
immediately conveys such an idea but the idea is false,
although plausible, then the term is deceptively
misdescriptive and is also unregistrable under Section
2(e)(1). See In re Woodward & Lothrop Inc., 4 USPQ2d 1412
(TTAB 1987) (CAMEO deceptively misdescriptive of jewelry);
and In re Ox-Yoke Originals, Inc., 222 USPQ 352 (TTAB 1983)
(G.I. deceptively misdescriptive of gun cleaning patches,
rods, brushes, solvents and oils).
In determining whether a mark is deceptively
misdescriptive within the meaning of Section 2(e)(1), we
apply a two-prong test: First, does the mark misdescribe
the goods or service to which it applies? Second, if so,
we consider whether consumers are likely to believe the
misdescription. See In re Quady Winery Inc., 221 USPQ
1213, 1214 (TTAB 1984). See also In re Phillips-Van Heusen
Corp., 63 USPQ2d 1047 (TTAB 2002); and In re Shniberg, 79
USPQ2d 1309, 1311 (TTAB 2006).
Ser. No. 77049126
14
In this case, applicant amended its identification of
goods to specify that the clothing items listed therein are
“not made of fleece fabric.” Because the goods as
identified are not made of fleece fabric, we find that the
mark BLACK FLEECE misdecribes such goods. Applicant also
acknowledges that as a result of the amendment to its
identification of goods “the term ‘black fleece’ is
facially misdescriptive of apparel that is not made of
black fleece.”8 In short, BLACK FLEECE clearly describes a
type of clothing, and applicant’s identification of goods
states that its clothing is not of that type. Therefore,
the first prong of the test for misdescriptiveness is
satisfied.
We turn then to the question of whether consumers are
likely to believe the misdescription. As outlined above,
the examining attorney has made of record evidence that
clothing items of the type identified in the involved
application are available from a number of retailers in
black fleece fabric. These specifically include black
fleece coats, dresses, gloves, jackets, pants, and skirts.
Because the record supports a finding that consumers may
encounter clothing items of the type identified in the
involved application that are made of black fleece, we find

8 Applicant’s brief, p. 11.
Ser. No. 77049126
15
that customers are likely to believe that BLACK FLEECE
misdescribes the identified goods.
Applicant argues that
Brooks Brothers’ customers (i.e., the relevant
consumer “who knows what the goods are”) are not
deceived into thinking, anticipating or expecting
that their $4,000 business suit or their
expensive pin point cotton oxford shirt is made
from fleece, black or otherwise. Simply put,
none of Brooks Brothers’ customers for its BLACK
FLEECE line of clothing expect the products to be
made from “black fleece” fabric.9

We agree that reasonably careful purchasers in applicant’s
stores who examine and purchase applicant’s own goods may
not be deceived into believing that they are made of fleece
fabric. However, not all clothing items are purchased with
such a degree of care. First, we are mindful that
applicant’s goods under its BLACK FLEECE mark are not only
available to careful and discerning consumers, but may be
purchased by ordinary purchasers with sufficient funds and
interest in doing so in all trade channels common for goods
of this type, regardless of their level of sophistication
or familiarity with applicant and its goods and trademarks.
That is to say, applicant’s goods under the BLACK FLEECE
mark are not only available to discerning consumers of
Brooks Brothers stores, but to anyone. In addition,

9 Id. at 12.

Ser. No. 77049126
16
applicant has indicated that its goods are available
through catalogs and over the Internet. Catalog and
Internet purchasers of applicant’s goods do not enjoy
firsthand examination thereof prior to purchase.
Furthermore, catalogs and Internet postings do not
necessarily describe or depict goods in such detail as to
prevent consumers from believing that the goods are made of
fleece. See, e.g., In re Woodward & Lothrop, Inc. at 1414
(“If applicant’s CAMEO jewelry were sold under those
conditions, and under other conditions where careful
examination may not be possible, it is not inconceivable,
and indeed quite likely, that a reasonable consumer would
think that the goods contain some form of a cameo.”) Also,
a reasonable consumer, upon hearing a radio advertisement
or word-of-mouth promotion of applicant’s goods, might
expect the clothing items to be made of fleece materials.
Id.
Applicant further argues that “consumers are educated
by industry custom and accustomed to the use of color
references to delineate fashion lines”10 and that because
“the Trademark Office has allowed numerous marks that
include color in classes 24 and 25 … [c]onsumers have been
educated to understand color references such as BLACK
Ser. No. 77049126
17
FLEECE and/or GOLDEN FLEECE to be trademarks that refer to
particular lines or collections of products.”11 However,
and as discussed above, the evidence provided by applicant
in support of these contentions, namely, a listing of
trademarks and their registration numbers, possesses no
probative value. Simply put, there is insufficient
evidence of record to support applicant’s contentions that
consumers have become accustomed to color references used
as trademarks to distinguish designers’ particular fashion
lines.
Applicant argues in addition that
As evidenced by the Examining Attorney’s own
evidence, “fleece” products are primarily
outerwear products (e.g., coats, capes, hats,
gloves, outer jackets) made of a synthetic fiber,
their look and feel being well-known by
consumers. Reasonable prospective purchasers are
not likely to believe that Applicant’s trademark
use of the term BLACK FLEECE on its labels and
hangtags actually describes Applicant’s
expensive, luxury, non-fleece goods.12

In support of this contention and as discussed above,
applicant has submitted the declaration of one of its
salespersons, its chief merchandising officer, and the
senior editor of a fashion magazine, all opining that
consumers will not and do not consider applicant’s BLACK

10 Id. at 13.
11 Id. at 13-14.
12 Id. at 14.
Ser. No. 77049126
18
FLEECE clothing to be made of fleece material. We note,
however, that these declarations reflect the opinions and
experience of clothing and fashion industry professionals,
not consumers of applicant’s goods. These industry
professionals possess knowledge of the clothing industry in
general and applicant’s clothing items in particular that
even sophisticated and fashion-conscious consumers may not.
Thus, their declarations are of limited usefulness in
determining the perceptions of consumers of applicant’s
clothing under its BLACK FLEECE mark. Applicant did submit
the declarations of three individual consumers attesting
that they recognize BLACK FLEECE as a trademark for a line
of Brooks Brothers clothing and do not consider BLACK
FLEECE to describe the clothing in that collection. These
declarations are probative to the extent that they reflect
the opinion of actual consumers of applicant’s goods under
the BLACK FLEECE mark. Three declarations, however, are
hardly overwhelming evidence of customer perception. Given
the number of visitors to applicant’s Internet website and
the number of consumers otherwise exposed to the BLACK
FLEECE mark, we find that the declarations of three such
consumers to be far from conclusive on the issue before us.
Moreover, we note that applicant’s goods, as
identified, also include outerwear products such as coats,
Ser. No. 77049126
19
gloves, hats, jackets, mufflers and rainwear, that is, the
same types of clothing items that applicant argues comprise
the majority of fleece clothing. Further, the examining
attorney’s evidence shows that certain of the black fleece
clothing items included in applicant’s identification are
intended to be not merely utilitarian, but stylish and
fashionable. In other words, there is no evidence that
fleece clothing items per se cannot be marketed as fashion
clothing.
The mark BLACK FLEECE immediately conveys the idea
that applicant’s clothing items identified thereby are made
of black fleece material. As identified, applicant’s goods
are not made of fleece material and, as such, the idea
conveyed by the mark is false. While the goods offered by
applicant under the BLACK FLEECE mark are not made of
fleece material, the evidence submitted by the examining
attorney shows that certain of the clothing items in
applicant’s identification of goods that are offered for
sale by third parties are indeed made of black fleece
material. Therefore, we find that the term BLACK FLEECE is
deceptively misdescriptive as applied to the identified
goods and is unregistrable under Section 2(e)(1).13

13 In coming to this result, we observe that the Board is not so
sartorially challenged as to be unaware of the nature of the
Ser. No. 77049126
20
Acquired Distinctiveness
We turn then to our determination of whether applicant
has carried its burden of establishing, by a preponderance
of the evidence, a prima facie case that its deceptively
misdescriptive mark, BLACK FLEECE, has acquired
distinctiveness under Section 2(f) of the Trademark Act.
See Yamaha International Corp. v. Hoshino Gakki Co. Ltd.,
840 F.2d 1572, 6 USPQ2d 1001 (Fed. Cir. 1988); In re
Hollywood Brands, Inc., 214 F.2d 139, 102 USPQ 294, 295
(CCPA 1954) (“[T]here is no doubt that Congress intended
that the burden of proof [under Section 2(f)] should rest
upon the applicant”); and In re Rogers, 53 USPQ2d 1741
(TTAB 1999).
We consider the evidence submitted by applicant and
outlined above in support of its claim of acquired
distinctiveness. The amount and character of evidence
required to establish acquired distinctiveness depends on
the facts of each case. See Roux Laboratories, Inc. v.
Clairol Inc., 427 F.2d 823, 166 USPQ 34 (CCPA 1970).
Evidence of acquired distinctiveness can include the length
of use of the mark, advertising expenditures, sales, survey

goods provided by applicant, particularly under its BROOKS
BROTHERS mark. Nonetheless, as discussed infra we find that the
facts and record of this case support the examining attorney’s
refusal to register under Section 2(e)(1).

Ser. No. 77049126
21
evidence, and affidavits asserting source-indicating
recognition. See Trademark Rule 2.41. However, a
successful advertising campaign is not in itself
necessarily enough to prove secondary meaning. See also In
re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056
(Fed. Cir. 1999) (claim based on annual sales under the
mark of approximately eighty-five million dollars, and
annual advertising expenditures in excess of ten million
dollars, not sufficient to establish acquired
distinctiveness in view of highly descriptive nature of
mark).
In this case, applicant has used its mark since August
2007. Obviously, four years of use is insufficient in
itself to create a prima facie case of acquired
distinctiveness. Furthermore, it is settled that a claim
that applicant has been using the subject matter for a long
period of substantially exclusive use may not be sufficient
to demonstrate that the mark has acquired distinctiveness.
See In re Gibson Guitar Corp., 61 USPQ2d 1948, 1952 (TTAB
2001) (66 years of use).
Applicant argues and has introduced evidence that it
is the owner of the BROOKS BROTHERS, GOLDEN FLEECE and
“hanging lamb” design marks, which have been in use since
the mid-1800s. With regard to applicant’s prior marks and
Ser. No. 77049126
22
registrations, Trademark Rule 2.41(b) provides that
ownership of a registration of “the same mark” on the
Principal Register may be accepted as prima facie evidence
of acquired distinctiveness. In relying on this rule, an
applicant is essentially seeking to “tack” the use of the
registered mark to its use of the present mark for purposes
of transferring distinctiveness to the new mark. See In re
Flex-O-Glass, Inc., 194 USPQ 203 (TTAB 1977). However, to
state the obvious, BLACK FLEECE is not the legal equivalent
of GOLDEN FLEECE, let alone BROOKS BROTHERS or the “hanging
lamb” design mark. See, e.g., Van Dyne-Crotty, Inc. v.
Wear-Guard Corp., 926 F.2d 1156, 17 USPQ2d 1866 (Fed. Cir.
1991). See also In re Dial-A-Mattress Operating Corp., 240
F.3d 1341, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001). Because
the marks are not the same, Trademark Rule 2.41(b) cannot
be used to establish that BLACK FLEECE has acquired
distinctiveness as a mark for any goods, let alone the
goods for which registration is now sought.
We do not disregard applicant’s prior marks and
registrations, but consider them for such probative value
as they may have in the context of the rest of applicant’s
evidence of acquired distinctiveness. However, there is
little evidence that consumers of applicant’s goods will
recognize BLACK FLEECE as a complement to or take-off on
Ser. No. 77049126
23
applicant’s more established GOLDEN FLEECE mark. In this
regard, we note that the evidence of record, in particular,
the second Amendola declaration, the Palmieri declaration,
and observations in articles contained in certain third-
party publications, indicates that applicant intended to
create both an association with and distinction between its
BLACK FLEECE clothing line and other named clothing lines.
However, the record falls far short of establishing that
the notoriety associated with applicant’s other marks that
have been in use for over a century is somehow transferred
to the BLACK FLEECE mark.
With regard to the sales and advertising figures
recited by applicant, we first observe that applicant has
provided no context for the industry by which we may
determine applicant’s share of this segment of the clothing
market – which applicant describes as the very expensive,
luxury, high-fashion clothing market - or where such sales
and advertising expenditures place applicant among others
in the same and related fields. In other words these
figures, without context, tell us very little about whether
consumers of applicant’s clothing have come to recognize
BLACK FLEECE as a source indicator. Therefore this
evidence has very limited probative value. Even in the
absence of such context, we observe that applicant’s sales
Ser. No. 77049126
24
and advertising figures are not overwhelming on their face
and may not, without more, be sufficient to support a
finding of acquired distinctiveness. See In re Boston Beer
Co. L.P., supra.
Similarly, although applicant has stated that the
BLACK FLEECE link on its website was viewed by 300,000
people, there is no indication that applicant’s website was
viewed by 300,000 discrete visitors as opposed to repeated
views by the same individuals. As such, we cannot quantify
consumer exposure to applicant’s mark by means of its web
site. In any event, this number lacks context for marks
applied to comparable goods in the clothing and fashion
industry. With regard to applicant’s evidence that BLACK
FLEECE received 242 million consumer impressions over an 18
month period, there is no indication of the extent to which
consumers who have been exposed to applicant’s marketing of
its BLACK FLEECE line of clothing have come to recognize
BLACK FLEECE as a mark therefor. For instance, applicant
points to 2.8 million consumer impressions and 15.5 million
viewership impressions of the January 2009 cover of GQ
magazine featuring a photograph of the actress Jennifer
Aniston naked except for a BLACK FLEECE necktie. However,
the record does not reveal whether viewers of the image of
an otherwise unclothed Ms. Aniston paid particular
Ser. No. 77049126
25
attention to her necktie and, if so, whether the BLACK
FLEECE mark was visible on it or they recognized it as
belonging to the BLACK FLEECE collection. Likewise, it is
not clear that viewers of photographs of celebrities at the
2008 Emmy Awards were aware of which of them were wearing
BLACK FLEECE clothing. This particularly is the case
inasmuch as the evidence of record does not show that BLACK
FLEECE clothing items are prominently emblazoned with the
mark. Viewers could obtain such information from photo
credits or articles discussing the images, but there is no
evidence of how many actually did so, or whether they came
to recognize BLACK FLEECE as a mark for such clothing as a
result.
In a similar fashion, the copies of news articles
submitted by applicant suggest that applicant’s launch of
its BLACK FLEECE collection of clothing generated attention
in the fashion industry and reflected applicant’s attempt
to appeal to a younger and more fashion-conscious
demographic. Applicant indicates that it launched the
BLACK FLEECE collection with the largest advertising
campaign in its company’s history, and many of the articles
made of record focus on that launch and applicant’s
intentions for its line of BLACK FLEECE clothing. However,
the articles do not establish that the consuming public has
Ser. No. 77049126
26
come to recognize applicant’s BLACK FLEECE mark as a source
indicator for applicant’s clothing items.
Finally, applicant submitted the declarations of three
individual customers attesting to, inter alia, their
recognition that BLACK FLEECE is a trademark for a line of
Brooks Brothers clothing. As noted, such declarations
provide direct evidence of source-indicating recognition by
consumers. However, while these declarations have
probative value with regard to the issue before us, the
very small number submitted by applicant renders them far
from conclusive.
In short, the evidence submitted by applicant suggests
that it has enjoyed some commercial success in marketing
its clothing line under its BLACK FLEECE mark. However,
viewed as a whole the evidence falls rather short of
demonstrating that BLACK FLEECE, as used on and in
connection with such goods, has acquired distinctiveness
under Section 2(f). There is neither context for the sales
and advertising figures, marketing materials, and Internet
website impressions nor sufficient direct evidence in the
form of, for instance, surveys or affidavits asserting
source-indicating recognition by which we may determine
that the deceptively misdescriptive term BLACK FLEECE has
Ser. No. 77049126
27
come to indicate source in applicant during the relatively
brief time the mark has been in use.14
Decision: The refusals to register under Trademark Act
Section 2(e)(1) and Trademark Act Section 2(f) are
affirmed.

14 We observe nonetheless that acquired distinctiveness under
Section 2(f) is not a static target. On such record as applicant
may produce at a later date, we may come to a different result on
this issue. In so observing, we are mindful that the probative
value of a record on the issue of acquired distinctiveness is far
less dependent on the size of the submission than the nature and
quality thereof. See, for example, In re Lorillard Licensing
Co., 99 USPQ2d 1312 (TTAB 2011).