87926255 (T.T.A.B. Jul. 30, 2020)

RH US, LLC

Trademark Trial and Appeal BoardJul 30, 2020

87926255 (T.T.A.B. Jul. 30, 2020)

This Opinion is Not a Precedent of the TTAB Mailed: July 30, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re RH US, LLC _____ Serial No. 87926255 _____ David A. Plumley of Lewis Roca Rothgerber Christie LLP, for RH US, LLC. Susan A. Richards, Trademark Examining Attorney, Law Office 103, Stacy B. Wahlberg, Managing Attorney. _____ Before Cataldo, Greenbaum and Lebow, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: RH US, LLC (“Applicant”) seeks registration on the Principal Register under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f), of the proposed mark, as displayed below, for “chaise lounges” in International Class 20.1 1 Application Serial No. 87926255 was filed on May 17, 2018, based upon Applicant’s allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming February 24, 2010 as both the date of first use and the date of first use in commerce. Serial No. 87926255 - 2 - Color is not claimed as a feature of the proposed mark. The description of the proposed mark reads as follows: The mark consists of a three-dimensional configuration of a wicker chaise lounge. The broken lines depicting legs, seating surfaces, and back support surfaces do not form part of the mark. Throughout this decision, we generally refer to the proposed mark as a Wicker Chaise Lounge Design. Applicant’s specimen of use identifies this Wicker Chaise Lounge Design as the “Provence Classic Chaise” lounge, part of the “Provence” collection of furniture in Applicant’s catalogues. May 17, 2018 Application at TSDR 8-9.2 The Examining Attorney refused registration under Sections 1, 2 and 45 of the Trademark Act, 15 U.S.C. §§ 1051-52 and 1127, on the ground that Applicant’s proposed mark consists of a non-distinctive product design that does not function as 2 All citations to documents contained in the TSDR database are to the downloadable .pdf versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry number; and after this designation are the page references, if applicable. Serial No. 87926255 - 3 - a trademark and has not acquired distinctiveness under Section 2(f) of the Trademark Act. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. We affirm the refusal to register. I. Evidentiary Issue Applicant attached to its brief (1) a Google Image Search for outdoor chaise lounges (Exhibit B), (2) an article from “House Beautiful” about Applicant (Exhibit E), (3) a copy of a third-party registration (Reg. No. 5367417) (Exhibit F), and (4) a copy of a Response to Office Action concerning the third-party registration (Exhibit G), none of which were previously made of record. 7 TTABVUE 33-40, 54-61, 62-63 and 64-65. The Examining Attorney objects to this evidence because it is untimely. 10 TTABVUE 4-5. Applicant, in reply, argues that the Board should consider the exhibits attached to its brief notwithstanding their omission from the record because: (1) “the Board can ‘take judicial notice of a relevant fact not subject to reasonable dispute’ (TBMP § 704 § 704.12(b),” which Applicant contends applies to materials contained in Exhibits B and E, and “would help the Board with its understanding of the background of the Application” and “Applicant”; and (2) “Applicant had no previous need or opportunity to attached the evidence contained in Exhibits F and G,” since they were only attached as rebuttal to an argument first raised made the Examining Serial No. 87926255 - 4 - Attorney in her denial of Applicant’s request for reconsideration of the final refusal. 11 TTABVUE 3-4. Contrary to Applicant’s arguments, Exhibits B and E are not the proper subject of judicial notice. Rule 201 of the Federal Rules of Evidence allows for, or on an appropriate proffer, requires, that judicial notice be taken only when the “fact is not subject to reasonable dispute.” Here, while the existence of other chaise lounges and an article regarding Applicant may be such facts, the import of those materials and whether they support Applicant’s arguments is a subject of reasonable dispute. Thus, even if Applicant had made these materials of record during prosecution, it does not follow as a matter of course that they would be considered as undisputed evidence of trademark use by Applicant. As for Exhibits F and G, if, as Applicant states, this evidence is relevant to arguments raised by the Examining Attorney for the first time in the October 15, 2019 Denial of Request for Reconsideration, Applicant should have filed with the Board a Request for Remand, with a showing of good cause, rather than attaching the evidence to its brief. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 1209 (June 2020). We sustain the Examining Attorney’s objection, and have not considered the four exhibits. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d) (record should be complete prior to appeal).3 3 Also, there was no need for Applicant to attach to its brief Exhibits C (one page of marketing material) and D (Applicant’s Design Patent for the proposed mark), as Applicant already made them of record by attaching them to the February 21, 2019 Response to Office Action (TSDR pp. 38 and 21-31, respectively) and the September 12, 2019 Request for Serial No. 87926255 - 5 - II. Acquired Distinctiveness of Product Design Because the Wicker Chaise Lounge Design is a product design, it is not inherently distinctive, and it can be registered as a mark only on a showing of acquired distinctiveness. Wal-Mart Stores Inc. v. Samara Bros. Inc., 529 U.S. 205, 54 USPQ2d 1065, 1069 (2000) (“Consumers are aware of the reality that, almost invariably, even the most unusual of product designs – such as a cocktail shaker shaped like a penguin – is intended not to identify the source, but to render the product itself more useful or more appealing.”); AS Holdings, Inc. v. H & C Milcor, Inc., 107 USPQ2d 1829, 1837 (TTAB 2013). Applicant acknowledged as much by seeking registration of the proposed mark under Section 2(f) of the Trademark Act. See Yamaha Int’l Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988) (“Where, as here, an applicant seeks a registration based on acquired distinctiveness under Section 2(f), the statute accepts a lack of acquired distinctiveness as an established fact.”). Therefore, the issue is whether Applicant has overcome the refusal of its proposed mark as non-distinctive product design by making a prima facie showing that relevant consumers perceive the Wicker Chaise Lounge Design as a Reconsideration (TSDR pp. 49 and 32-43). See In re Allegiance Staffing, 115 USPQ2d 1319, 1323 (TTAB 2015) (practice of attaching to appeal brief copies of the same exhibits submitted with responses is discouraged); In re Thor Tech Inc., 85 USPQ2d 1474, 1475 n.3 (TTAB 2007) (attaching evidence from record to briefs is duplicative and unnecessary). On the other hand, we consider Exhibit A, a newly submitted definition of the term “chaise lounge” from the Merriam-Webster online dictionary (to which the Examining Attorney does not object), because the Board may take judicial notice of dictionary definitions, including online dictionaries which exist in printed format or that have regular fixed editions. See Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Serial No. 87926255 - 6 - trademark for chaise lounges. In re SnoWizard, Inc., 129 USPQ2d 1001, 1004 (TTAB 2018). Applicant bears the burden of proving acquired distinctiveness. In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015) (citing In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir. 2005)) (“The applicant … bears the burden of proving acquired distinctiveness.”); In re Hollywood Brands, Inc., 214 F.2d 139, 102 USPQ 294, 295 (CCPA 1954) (“There is no doubt that Congress intended that the burden of proof [under Section 2(f)] should rest upon the applicant ….”). Whether an applicant has established acquired distinctiveness is a question of fact. In re Becton, Dickinson and Co., 675 F.3d 1368, 102 USPQ2d 1372, 1375 (Fed. Cir. 2012). A mark has acquired distinctiveness “if it has developed a secondary meaning, which occurs when, ‘in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.’” Wal-Mart, 54 USPQ2d at 1068 (quoting Inwood Labs, Inc. v. Ives Labs., Inc., 456 U.S. 844, 214 USPT 1, 4 n.11 (1982)); see also Stuart Spector Designs Ltd. v. Fender Musical Instruments Corp., 94 USPQ2d 1549, 1554 (TTAB 2009) (“An applicant must show that the primary significance of the product configuration in the minds of consumers is not the product but the source of that product in order to establish acquired distinctiveness.”). There is no fixed rule for the amount of proof necessary to demonstrate acquired distinctiveness, but the burden is heavier for product configurations than for word marks. Kohler Co. v. Honda Gikken Kogyo K.K., 125 USPQ2d 1468, 1504 (TTAB 2017); In re Udor U.S.A. Inc., 89 USPQ2d 1978, 1986 Serial No. 87926255 - 7 - (TTAB 2009); In re Ennco Display Sys. Inc., 56 USPQ2d 1279, 1283-84 (TTAB 2000). That is because, as noted above, consumers are not predisposed to view product features as potential source-identifiers. See Wal-Mart, 54 USPQ2d at 1069. Acquired distinctiveness may be shown by direct or circumstantial evidence. Stuart Spector Designs, 94 USPQ2d at 1554; see also Schlafly v. Saint Louis Brewery, LLC, 909 F.3d 420, 128 USPQ2d 1739, 1743 (Fed. Cir. 2018) (“The Board and courts have recognized that both direct and circumstantial evidence may show secondary meaning.”) (citation omitted). Direct evidence includes actual testimony, declarations or surveys of consumers as to their state of mind. Kohler, 125 USPQ2d at 1506; Ennco, 56 USPQ2d at 1283. By contrast, circumstantial evidence is evidence from which consumer association might be inferred, such as years of use, prior registrations, extensive amount of sales and advertising, unsolicited media coverage, and any similar evidence showing wide exposure of the mark to consumers. Kohler, 125 USPQ2d at 1506; see also Tone Bros. v. Sysco Corp., 28 F.3d 1192, 31 USPQ2d 1321 (Fed. Cir. 1994) (listing, as examples of circumstantial evidence, advertising, sales figures, and intentional copying by competitors). Evidence of acquired distinctiveness of a product design “must relate to the promotion and recognition of the specific configuration embodied in the applied-for mark and not to the goods in general.” In re Change Wind, 123 USPQ2d 1453, 1467 (TTAB 2017) (citing Inwood Labs., 214 USPQ at 4 n.11); see also SnoWizard, 129 USPQ2d at 1005 (citing Converse, Inc. v. ITC, 909 F.3d 1110, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018)). Serial No. 87926255 - 8 - The types of evidence to be assessed and weighed in determining acquired distinctiveness of a proposed product design mark include (1) association of the product design with a particular source by actual purchasers (typically measured by customer surveys); (2) length, degree, and exclusivity of use; (3) amount and manner of advertising; (4) amount of sales and number of customers; (5) intentional copying; and (6) unsolicited media coverage. See Converse, 128 USPQ2d at 1546. We consider and weigh all of the factors for which there is evidence in the record in this case to determine whether Applicant has demonstrated secondary meaning.4 Id. A. Evidence of Record Following Applicant’s initial Section 2(f) claim based on “substantially exclusive and continuous use” of the proposed mark in commerce on the goods for at least five years, Applicant submitted as evidence of acquired distinctiveness (1) the Declaration of Joshua Benson, Applicant’s Senior Counsel for Intellectual Property (“Benson Declaration,” with exhibits), attesting to the length, degree and exclusivity of use; the amount and manner of advertising; the amount of sales and number of customers; and Applicant’s ownership of a design patent for the Wicker Chaise Lounge Design;5 4 Applicant did not submit a consumer survey, evidence of intentional copying, or unsolicited media coverage. Cf. Converse, 128 USPQ2d at 1546. The “absence of consumer surveys need not preclude a finding of acquired distinctiveness.” Yamaha, 6 USPQ2d at 1010. Neither is evidence of intentional copying or unsolicited media coverage of a mark (other factors of analysis mentioned by the Federal Circuit in Converse) required to be shown. However, given the heavy burden to establish acquired distinctiveness for product configurations, such evidence can be helpful to applicants in their attempt to meet that burden. 5 Applicant submitted the Benson Declaration and associated exhibits twice, once with its February 21, 2019 Response to Office Action, TSDR at 16-96, and again with its September 12, 2019 Request for Reconsideration, TSDR at 27-107. This was unnecessarily duplicative. As to Applicant’s design patent for the Wicker Chaise Lounge Design, “the fact that a device Serial No. 87926255 - 9 - and (2) 61 Consumer Statements. The Examining Attorney made of record printouts from a number of different retail and online retail stores, including national retail stores such as Walmart and Pottery Barn, which provide wicker chaise lounges with designs that she contends are virtually identical or substantially similar to the Wicker Chaise Lounge Design. 1. Length, Degree and Exclusivity of Use Mr. Benson asserts that Applicant has used the proposed mark on chaise lounges since February 2010. Benson Declaration ¶ 3, September 12, 2019 Request for Reconsideration, TSDR at 28. He describes the Wicker Chaise Lounge Design as: (a) a chaise lounge chair made of wicker with (b) a central section consisting of a surface for placing the seating cushions with a back support that can rise, (c) a wide, wicker platform with rounded corners around the central section, (d) where the platform goes nearly to the floor on all sides, and (e) where the borders around the middle section created by the platform are uniform with a width of approximately ¼ the width of the middle section (the “Provence Chaise Lounge Design”).6 Id. is or was the subject of a design patent does not, without more, bestow upon said device the aura of distinctiveness or recognition as a trademark.” Becton, Dickinson, 102 USPQ2d at 1377. 6 As the Examining Attorney points out, there is no way to tell from the application drawing that the “borders around the middle section created by the platform are uniform with a width of approximately ¼ the width of the middle section,” and there is no evidence that consumers would even notice the comparative width of the borders in the Wicker Chaise Lounge Design or in any of the numerous third-party uses discussed below. Examining Attorney Brief, 10 TTABVUE 16. Moreover, as the Examining Attorney also points out (id., 10 TTABVUE 17- 18), the drawing controls the mark in the application. Change Wind, 123 USPQ2d at 1469 n.6 (citing Trademark Rule 2.52, 37 C.F.R. §2.52). Serial No. 87926255 - 10 - Where a proposed mark is a non-inherently distinctive product configuration, such as Applicant’s, evidence of long and continuous use considered alone generally is insufficient to show acquired distinctiveness. See In re Koninklijke Philips Elecs. N.V., 112 USPQ2d 1177, 1186 (TTAB 2014) (observing that five years’ continuous use considered alone generally is not sufficient to show that a non-distinctive product configuration has acquired distinctiveness). See also, e.g., In re R.M. Smith, Inc., 734 F.2d 1482, 222 USPQ 1, 3 (Fed. Cir. 1984) (8 years’ use not sufficient evidence of acquired distinctiveness for configuration of pistol grip water nozzles); In re Van Valkenburgh, 97 USPQ2d 1757, 1766 (TTAB 2011) (16 years’ use not conclusive or persuasive to show acquired distinctiveness of motorcycle stands); Mag Instrument v. Brinkmann Corp., 96 USPQ2d 1701, 1723 (TTAB 2010 (27 years’ use insufficient to show acquired distinctiveness for dual bands on flashlight); Ennco, 56 USPQ2d at 1286 (use of product configuration designs ranging between 7 and 17 years not sufficient to show acquired distinctiveness). Applicant claims that the Wicker Chaise Lounge Design has acquired distinctiveness based on “substantially exclusive and continuous use” on “pieces containing the Provence Chaise Lounge Design” in commerce since 2010. Benson Declaration, ¶ 6, September 12, 2019 Request for Reconsideration, TSDR at 29. Although Applicant’s use may have been “continuous,” the evidence of numerous third-party uses of nearly identical or very similar designs for wicker chaise lounges belies Applicant’s contention its use has been “substantially exclusive.” This evidence includes chaise lounges with virtually identical salient features as contained in the Serial No. 87926255 - 11 - Wicker Chaise Lounge Design, including lounges with a wicker base that nearly reaches the ground, a wide platform for cushions with an adjustable back support, and/or a platform border or edge with rounded sides:7  Thos. Baker Hampton Chaise Lounge (August 21, 2018 Office Action, TSDR at 89-91);  Pottery Barn All-Weather Huntington Wicker Chaise (id., TSDR at 94-97);  Harmonia Living Urbana Armless Wicker Chaise Lounge and Sunset West Coronado Adjustable Wicker Chaise Lounge offered on the Wicker.com website (id., TSDR at 40-44 and 55-56); and  Kinner by Bayou Breeze and Doutzen by Darby Home offered on the Wayfair website (March 12, 2019 Final Office Action, TSDR at 14-15, 22);  Multiple models from the Sunset West and Patio Heaven collections offered on the Hayneedle website (id., TSDR at 34, 38, 40, 43, 86; and 36-37);8  Other models offered on the Hayneedle website include: o Modway Sojourn (id., TSDR at 43); o TK Classics Coast (id., TSDR at 71-72); o Cadiz (id., TSDR at 77-78); 7 We refer to the salient features of the Wicker Chaise Lounge Design in this summary form because it closely resembles Mr. Benson’s description of the proposed mark (albeit without his reference to the comparative border width) and the language used in the Consumer Statements (discussed below), and it mirrors the language the Examining Attorney uses in her brief. 8 The Examining Attorney provided more detailed information about the Sunset West Montecito (id., TSDR at 86-93). Serial No. 87926255 - 12 - o Signature Design by Ashley Alta Grande (id., TSDR at 81-82); and o Outsunny (id., TSDR at 94-104).9 The evidence also includes wicker chaise lounges that are extremely similar, visually, to the Wicker Chaise Lounge Design, as described in the prior paragraph:  Arhaus Wyatt (August 21, 2018 Office Action, TSDR at 98-100);  Pier 1 Echo Beach Collection Latte (id., TSDR at 26-28);  Meeks by Rosecliff Heights, Monterey by TK Classics, Lindell by Brayden Studio, Lombardo by Rosecliff Heights, Peters by Brayden Studio, Mokane by Beachcrest Home, and Galicia by Ivy Bronx, all offered on the Wayfair website (March 12, 2019 Final Office Action, TSDR at 20-21, 23-26); and  Multiple models offered on the Hayneedle website, including: o Harmonia Living District (id., TSDR at 41); o AE Outdoor Cherry Hill (id., TSDR 54-55); o Better Homes & Gardens Hawthorne Park (id., TSDR at 56-57); o Abbyson Palmer (id., TSDR at 60-61); o TK Classics Florence, Barbados, Belle, and Oasis (id., TSDR at 59, 73-75); o Modway Summon (id., TSDR at 52, 63); o Velago Torino (id., TSDR at 76); o Cloud Mountain (id., TSDR at 85). 9 Walmart also offers this chaise lounge (August 21, 2018 Office Action, TSDR at 57-64). Serial No. 87926255 - 13 - The Examining Attorney also submitted evidence from many different sources demonstrating that consumers are accustomed to seeing designs of wicker chaise lounges with bases that extend close to the ground, wide platforms for cushions and adjustable back supports. This marketplace evidence includes:  Bellacor Crosley Furniture Palm Harbor Outdoor Wicker Chaise Lounge (August 21, 2018 Office Action, TSDR at 13-18);  Elle Décor Vallauris Wicker Patio Storage Chaise Lounge offered by Walmart (id., TSDR at 19-25);10  Pottery Barn Torrey All-Weather Wicker Chaise (id., TSDR at 29-33);  Wicker.com listings for the WhiteCraft by Woodard Serene Wicker Chaise Lounge, and the Lloyd Flanders Cayman Wicker Chaise Lounge (id., TSDR at 34-50, 51-55);  Wayfair listing for the TK Classic Chaise Lounge (id., TSDR at 65-71);  Overstock listing for the Bayside OH0319 Outdoor Patio Wicker Chaise Lounge Set (id., TSDR at 72-78);  Wayfair lists many other lounges, such as: Meier and Medley by Rosecliff Heights; Sheryl by Hokku Designs; Barbados by TK Classics; Koerner by Red Barrel Studio; Mokane by Beachcrest Home; Lulu by Alcott Hill; and Oberon, Dent Contemporary, and Breneman by Latitude Run (March 12, 2019 Final Office Action, TSDR at 8-14); and 10 Hayneedle also offers this chaise lounge. March 12, 2019 Final Office Action, TSDR at 51. Serial No. 87926255 - 14 -  Furniture of America Holden Contemporary and Valera chaise lounges (id., TSDR at 62-64). She also submitted examples of wicker chaise lounges with wide platforms for cushions, adjustable back supports, and bases that extend close to the ground on the side, such as:  Serena & Lily Pacifica Chaise (August 21, 2018 Office Action, TSDR at 34-39);  Listings on Hayneedle for Coral Coast Berea, Crosley Furniture Palm Harbor (id., TSDR at 79-85), and Whitecraft by Woodard Montecito (March 12, 2019 Final Office Action, TSDR at 30). Applicant contends that the third-party uses do not vitiate Applicant’s claim that its use has been substantially exclusive because none of the uses include all of the features comprising the Wicker Chaise Lounge Design. We disagree. As set out above, many of the third-party uses appear virtually identical to the Wicker Chaise Lounge Design (e.g., Thos. Bros. Hampton, Pottery Barn Huntington, and various models offered on the Wayfair and Hayneedle websites) and many others appear substantially similar to it (e.g., Arhaus Wyatt, Pier 1 Echo Beach Latte, and various other models offered on the Wayfair and Hayneedle websites). Even if there are minor differences, “[i]n order to be relevant to the question of whether applicant’s mark has acquired distinctiveness, the third-party uses do not have to be identical to applicant’s mark.” Saint-Gobain Corp. v. 3M Co., 90 USPQ2d 1425, 1440 (TTAB 2007) (color mark); see also Goodyear Tire & Rubber Co. v. Interco Tire Corp., 49 USPQ2d Serial No. 87926255 - 15 - 1705, 1720 (TTAB 1998) (differences between applicant’s tire tread designs and third- party designs not shown by applicant to be of source-identifying significance). It is enough if they are substantially similar. Converse, 128 USPQ2d at 1547. While absolute exclusivity is not required for a Section 2(f) registration, see L.D. Kichler Co. v. Davoil, Inc., 192 F.3d 1349, 52 USPQ2d 1307 (Fed. Cir. 1999), the widespread use of other virtually identical or substantially similar chaise lounges that vary only slightly from the Wicker Chaise Lounge Design is inconsistent with Applicant’s claim of acquired distinctiveness and falls short of being “substantially exclusive” as required by the statute. See Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984) (“When the record shows that purchasers are confronted with more than one (let alone numerous) independent users of a term or device, an application for registration under Section 2(f) cannot be successful, for distinctiveness on which purchasers may rely is lacking under such circumstances.”). “[N]on-exclusive use presents a serious problem for the merchant seeking to develop trademark rights in a word, symbol or device that it not inherently distinctive, because it interferes with public perception that it serves as an indicator of a single source ….” In General Mills IP Holdings II, LLC, 124 USPQ2d 1016, 1021 (TTAB 2017). Because the record shows that Applicant’s use of the Wicker Chaise Lounge Design has been non-exclusive, Applicant has a “particularly heavy” burden to establish that the proposed mark has acquired distinctiveness under Section 2(f) of the Trademark Act. Stuart Spector Designs, 94 USPQ2d at 1554. Serial No. 87926255 - 16 - 2. Association of the Subject Matter Sought to be Registered With a Particular Source by Actual Purchasers Applicant submitted 61 unsworn signed and dated “Consumer Statements” that appear to have been prepared by Applicant’s counsel.11 The Statements read as follows (emphasis in originals): CONSUMER STATEMENT To Whom It May Concern: I am a customer of Restoration Hardware/RH (“RH”) and am generally familiar with the furniture RH sells. I also frequently shop at a number of other furniture stores in the United States including their retail stores, catalogs, and online stores. As a result, I am generally familiar with furniture offered for sale by non-RH retailers in the United States. As a customer of RH, I am familiar with RH’s Provence Chaise Lounge, which is a wicker chaise lounge chair with a distinctive design that includes: (a) a wide wicker platform that surrounds the central seating area with a uniform width, (b) rounded corners, and (c) the platform’s sides extend to the ground on all sides (the “Provence Chaise Lounge,” shown in Exhibit A). RH prominently markets the design of the Provence Chaise Lounge, and its advertisements, websites, marketing emails, and source books show off the unique shape of the chaise lounge chair. As a result of RH’s long-standing sale of the chaise lounge, its prominent marketing of the chair design, and the unique features of the Provence Chaise Lounge’s design as described above, I associate the distinctive design of the Provence Chaise Lounge exclusively with RH. I am familiar with other home furnishing stores and online retailers, and the furniture sold at those stores. I am not aware of any other chaise lounge that uses the design of the Provence Chaise Lounge, or a design confusingly similar to the Provence Chaise Lounge. To me, the distinctive wide platform design of the Provence Chaise Lounge, with its uniform 11 September 12, 2019 Request for Reconsideration, TSDR at 108-230. [I]t is not necessary that [form statements] include a declaration as provided in Trademark Rule 2.20. However, this does not mean that all form statements and all forms without declarations will have equal probative value with personal statements and those signed with the safeguards of a Rule 2.20 declaration.” In re Lorillard Licensing Co., 99 USPQ2d 1312, 1319 (TTAB 2011). Serial No. 87926255 - 17 - width, rounded corners, and sides that extend to the ground, in the context of chairs signifies only RH. Specifically, when I see a chair with the distinctive platform and design of the Provence Chaise Lounge – without knowing any more about the chair – I know immediately that it is a chair from RH. *** “‘Form statements may be used to show acquired distinctiveness,’ …. but the ones here suffer from multiple deficiencies that vitiate their probative value on the issue of acquired distinctiveness.” Kohler, 125 USPQ2d at 1507 (quoting In re Florists’ Transworld Delivery Inc., 106 USPQ2d 1784, 17894 n.9 (TTAB 2013)). “First, ‘they are all essentially identical in form and were clearly not composed individually …. [S]uch statements are less persuasive than statements expressed in the declarants’ own words.” Id. (quoting In re Pohl-Boskamp GmbH & Co., 106 USPQ2d 1402, 105 (TTAB 2013)). Second, there is no way to tell how many individuals were sampled to obtain the 61 Consumer Statements, and thus what proportion of those sampled the 61 Statements represent. For example, if thousands of consumers were approached but declined to provide Statements, the 61 who responded might not be representative of Applicant’s customers. Nor is there any indication of when, where, or the circumstances under which the Consumer Statements were taken. For example, whatever probative value the Statements might have could be reduced if they were taken in or near one of Applicant’s stores or in a mall where one of Applicant’s stores is located, or if the customers received any kind of incentive for completion. Serial No. 87926255 - 18 - Third, the Consumer Statements refer to, and are expressly based upon “Exhibit A,” consisting of the application drawing showing the proposed mark directly below the typed wording “The Provence Chaise Lounge,” but the typed wording is not part of the proposed mark. Thus, we cannot determine the extent to which these consumers professed association of the “distinctive design”/”distinctive platform and design” with Applicant based solely on the claimed features of the Wicker Chaise Lounge Design, or rather based their association on Applicant’s separate use of the “Provence” brand name in “Exhibit A,” especially where the wording “Provence Chaise Lounge” is used throughout the Consumer Statements. Because the Consumer Statements do not distinguish between the typed wording that appears in “Exhibit A” and the body of the Statements, and the proposed mark which does not include that wording, the Statements are not probative of the distinctiveness of the Wicker Chaise Lounge Design itself. Kohler, 125 USPQ2d at 1507; see also, e.g., Florists’ Transworld Delivery, 106 USPQ2d at 1793 (discounting form declarations offered to show acquired distinctiveness of color black for floral arrangements because accompanying photograph of product packaging included other matter). Fourth, the Consumer Statements are “conclusorily worded [and] fail to explain what it is about [the applied-for mark] that is unique or unusual, or distinctive from those of [Applicant’s] competitors.” In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1633 (Fed. Cir. 2003). Each Consumer Statement describes the Wicker Chaise Lounge Design as follows: As a customer of RH, I am familiar with RH’s Provence Chaise Lounge, which is a wicker chaise lounge chair with Serial No. 87926255 - 19 - a distinctive design that includes: (a) a wide wicker platform that surrounds the central seating area with a uniform width, (b) rounded corners, and (c) the platform’s sides extend to the ground on all sides (the “Provence Chaise Lounge,” shown in Exhibit A). (Emphasis in original.) The foregoing description identifies features of the Wicker Chaise Lounge Design. However, nothing in the Consumer Statements explains why the specific combination of identified features in the proposed mark are considered unique or unusual as compared to the numerous other virtually identical or substantially similar chaise lounge designs used by Applicant’s competitors such that they would view Applicant’s specific design as an indicator of source. The weight of the evidence supports the opposite conclusion. 3. Amount of Sales and Number of Customers Mr. Benson provided sales figures of approximately 11,000 “chairs containing the Provence Chaise Lounge Design” in the U.S. since 2010, with sales ranging from 800- 1,500 per year, and sales of “pieces containing the Provence Chaise Lounge Design totaling approximately $11 million since 2010,” with sales ranging from $900,000- $1.6 million per year. Benson Declaration ¶¶ 6-7, September 12, 2019 Request for Reconsideration, TSDR at 29-30. According to Mr. Benson, “[p]rices for furniture pieces including the Provence Chaise Lounge Design range from $965 to $1695.” Id. ¶ 9, TSDR at 30. We cannot glean any meaningful information from these sales figures since Applicant failed to submit any evidence regarding the cost of each of its chaise lounges, how many customers have purchased Applicant’s chaise lounges, or how many chaise lounges it sold per year, versus other chairs in Applicant’s Provence Serial No. 87926255 - 20 - collection.12 More importantly, Applicant provided no industry context for its figures, such as its relative market share of chaise lounges, or its sales position as compared to its competitors, thus further diminishing the probative value of these raw numbers. In re MK Diamond Prods., Inc. (TTAB July 27, 2020 at *54). Nonetheless, even if we were to assume the sales figures to demonstrate some commercial success, “mere figures demonstrating successful product sales are not probative of purchaser recognition of a configuration as an indication of source.” Stuart Spector Designs, 95 USPQ2d at 1572 (citing Braun Inc. v. Dynamics Corp., 975 F.2d 815, 24 USPQ2d 1121, 1133 (Fed. Cir. 1992)); see also In re Bongrain Intl (Am.) Corp., 13 USPQ2d 1727, 1729 (Fed. Cir. 1990) (growth in sales may be indicative of popularity of product itself rather than recognition of the proposed mark as denoting origin). 4. Amount and Manner of Advertising Applicant’s claim of acquired distinctiveness also is based on Applicant’s advertising and marketing efforts. According to Mr. Benson, Applicant has continuously advertised “furniture pieces containing the Provence Chaise Lounge Design” since 2010, and has “widely marketed” the “Provence Chaise Lounge Design” “to consumers across the US, including through [Applicant’s] catalogues, known as Source Books … and on [Applicant’s] website,” which displays “furniture pieces containing the Provence Chaise Lounge Design[.]” Benson Declaration ¶ 8, September 12, 2019 Request for Reconsideration, TSDR at 30. “Chairs including the 12 Applicant’s catalogs display the Wicker Chaise Lounge Design on chaise lounges and other chairs, such the “Provence Loveseat,” “Provence Lounge Chair,” and “Provence Chair-And-A- Half.” September 12, 2019 Request for Reconsideration, TSDR at 46. Serial No. 87926255 - 21 - Provence Chaise Lounge Design have been widely displayed and sold by [Applicant] across the United States for over 9 years, including in 109 retail stores across the United States, through [Applicant’s] Source Books, which are distributed to 6-8 million US households each year, and online at [Applicant’s] website … which receives approximately 20 million unique visits each year.” Id., ¶ 9. As noted above, the critical inquiry is whether Applicant’s product design is used and advertised in the marketplace in a manner that educates consumers to recognize the product design as serving to distinguish the source of such products from the goods of others. See Stuart Spector Designs, 94 USPQ2d at 1572 (“To determine whether a configuration has acquired distinctiveness, advertisements must show promotion of the configuration as a trademark.”). Sample advertisements showing “look-for” types of promotional efforts from an applicant may be particularly probative on the issue of whether a product design functions as a source identifier. “‘Look for’ advertising refers to advertising that directs the potential consumer in no uncertain terms to look for a certain feature to know that it is from that source. It does not refer to advertising that simply includes a picture of the product or touts a feature in a non source-identifying manner.” Id. Here, the record is devoid of “look for” advertising. Cf. In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417, 423-23 (Fed. Cir. 1985) (describing effective “look for” advertising). The catalogues/Source Books and Internet printouts of Applicant’s Provence collection of furniture include photographs of the Wicker Chaise Lounge Design on chaise lounges and other “pieces of furniture,” but there is Serial No. 87926255 - 22 - no mention of any particular product features of the proposed mark. The materials use generic terms to describe the chaise lounges, rather than promoting recognition of the shape or salient features of the Wicker Chaise Lounge Design as a source indicator for chaise lounges. For example, none of the advertisements even mention rounded borders. As the Examining Attorney aptly notes, “[s]imply describing the piece as a ‘vintage country design, interpreted in all-weather wicker’ does not amount to ‘look-for’ advertising promoting the features of the Wicker Chaise Lounge Design.” Examining Attorney Brief, 10 TTABVUE 25. Three examples from the September 12, 2019 Request for Reconsideration describe the Provence collection as follows:  Provence Collection Vintage French Country design, interpreted in all-weather wicker and premium teak tables. Hand woven of durable strands wrapped around a rustproof aluminum frame. Won’t fade, crack or tear even after seasons of use. Generously proportioned. Grey patina wicker finish. Id., TSDR at 46.  Introducing PROVENCE in All-Weather Wicker Louis Ho Hong Kong A classic design that evokes the South of France is interpreted in handwoven, variegated all-weather wicker. Crafted by Louis Ho, the generously proportioned silhouette features a low profile and gracefully sloping arms. A new Terra finish gives it an earthy elegance. Id., TSDR at 46. Serial No. 87926255 - 23 -  PROVENCE in All-Weather Wicker Individually Handwoven & Ultra-Durable A classic design that evokes the South of France is interpreted in handwoven, variegated all-weather wicker. The generously proportioned silhouette features a low profile and gracefully sloping arms. Id., TSDR at 68. Two other examples describe the features of the chaise lounge:  Chaise reclines to 3 positions and features cushions upholstered in all- season Perennials or Sunbrella fabrics. Chaise 6435.0008 $1395. Cushions starting at $250. Id., TSDR at 51-52  PROVENCE IN ALL-WEATHER WICKER PROVENCE COLLECTION 2 finishes; Brown All- Weather Wicker shown. Chaise 2 depths. Single (shown) or Double. Frame starting at $1495 Regular/$1121 Member. Cushion starting at $440 Regular/$350 Member. Chaise Frame[.] Available in 2 styles and 2 depths[.] Starting at $1495/$1121 Member[.] Id., TSDR at 63. In addition, as with Applicant’s sales figures, Applicant’s advertising materials are not limited to displaying or promoting just the Wicker Chaise Lounge Design on the identified chaise lounges. Rather, as noted above, the materials also include photographs of different pieces of furniture from Applicant’s Provence collection (e.g., various chairs). The materials further include photographs of several other collections of Applicant’s furniture, such as the Del Mar, La Jolla and Antigua all- weather wicker collections (id., TSDR at 44), the Antibes and Klismos collections (id., Serial No. 87926255 - 24 - TSDR at 81), and the Belvedere and Majorca collections (id., TSDR at 97). It therefore is not clear what percentage of Applicant’s advertising is directed specifically to advertising the Wicker Chaise Lounge Design for the identified chaise lounges (or even other items in the Provence collection), or the degree to which the advertising is aimed at establishing the Wicker Chaise Lounge Design as a source identifier in the minds of consumers. See AS Holdings, 107 USPQ2d at 1838; see also Target Brands, Inc. v. Hughes, 85 USPQ2d 1676, 1681 (TTAB 2007). Because Applicant’s advertising and marketing materials do not promote the features of the Wicker Chaise Lounge Design to consumers, either in text or in photographs, the photographs of Applicant’s chaise lounges in these materials are nothing more than an illustration for Applicant’s goods rather than promotion of the Wicker Chaise Lounge Design as a trademark. See In re Pingel, 46 USPQ2d 1811, 1823 (TTAB 1998) (“[I]n this case there is a complete absence of any advertising or promotional uses of applicant’s and advertisements [that] show … the petcock configuration as a mark. Instead, applicant’s catalog and advertisements show … that the petcock configuration is used solely as an illustration of applicant’s product[.]”). Accordingly, Applicant’s advertising and marketing materials do not demonstrate that prospective purchasers of Applicant’s chaise lounges view the Wicker Chaise Lounge Design as an indication of their source. B. Conclusion After weighing all of the factors for which there is evidence in determining whether the Wicker Chaise Lounge Design has acquired distinctiveness, we find that Serial No. 87926255 - 25 - Applicant has not established that the Wicker Chaise Lounge Design has acquired distinctiveness as a source identifier for with Applicant’s chaise lounges. Decision: The refusal to register under Sections 1, 2 and 45 of the Trademark Act on the ground that Applicant’s proposed mark is a non-distinctive product design and that Applicant has not established acquired distinctiveness under Section 2(f) of the Trademark Act is affirmed.