Ricko DeWilde

Trademark Trial and Appeal Board

Mar 14, 2013

No. 85125004 (T.T.A.B. Mar. 14, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: March 14, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Ricko DeWilde
_____

Serial No. 85125004
_____

Scott J. Major of Millen White Zelano & Branigan PC,
for Ricko DeWilde.

Marc J. Leipzig, Trademark Examining Attorney, Law Office 115,
John Lincoski, Managing Attorney.
_____

Before Bucher, Kuhlke and Hightower,
Administrative Trademark Judges.

Opinion by Bucher, Administrative Trademark Judge:
Ricko DeWilde (“applicant”), a U.S. Citizen, seeks registration on the Principal
Register of the mark HYDZ (in standard character format) for “apparel not made of
leather or other animal hides, namely, sweatpants and sweatshirts for casual wear
or for wear during exercise,” in International Class 25.1

1 Application Serial No. 85125004 was filed on September 8, 2010, based upon applicant’s
claim of a bona fide intention to use the mark in commerce.
Serial No. 85125004
2

The examining attorney has refused registration of applicant’s mark under
Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), having determined that the
mark is deceptive when used in connection with the identified goods.
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 reverse the refusal to register.
I. Applicable Law
Our determination under Trademark Act § 2(a) is based upon an analysis of
whether all three of the following criteria are met:
(1) The applied-for mark consists of or contains a term that
misdescribes the character, quality, function, composition, or use
of the goods and/or services.
(2) Prospective purchasers are likely to believe that the
misdescription actually describes the goods and/or services.
(3) The misdescription is likely to affect a significant portion of the
relevant consumers' decision to purchase the goods and/or
services.
In re Budge, 857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988); see also In re
Spirits Int’l, N. V. , 563 F.3d 1347, 1353, 1356, 90 USPQ2d 1489, 1492-93, 1495
(Fed. Cir. 2009) (holding that the test for materiality incorporates a requirement
that a “significant portion of the relevant consumers be deceived”); In re ALP of
S. Beach Inc., 79 USPQ2d 1009 (TTAB 2006); In re Phillips-Van Heusen Corp.,
63 USPQ2d 1047 (TTAB 2002); and In re Organik Techs., Inc., 41 USPQ2d 1690
(TTAB 1997).
Serial No. 85125004
3

II. The facts of this case
Mr. DeWilde allegedly chose the term HYDZ to honor the beauty and
strength of his Athabascan Native American culture. He contends that because
the sweatpants and sweatshirts he markets bear images of original works by
Native American artists, and inasmuch as the marketing of these products
stresses the native beauty of wilderness Alaska, it is most unlikely that
prospective purchasers will believe that the term HYDZ describes the
material composition of applicant’s goods. Copies of applicant’s actual use of the
HYDZ mark used in connection with the sweat wear are contained in the record.2
The following illustrations show the imagery emblazoned on the activewear, such as
“Whaling,” “Buffalo Skull,” “Savage Moon,” “Warrior,” “Eagles Locked,” etc.:

The examining attorney has submitted for the record dictionary definitions as
follows:
hide noun (plural hides)
1. animal skin: the skin of some larger animals, e.g., deer, cattle, or
buffalo.3

2 http://www.hydzgear.com/ as accessed by applicant on June 21, 2011.
3 See definition from http://encarta.msn.com as attached to Office Action of December 23,
2010.
Serial No. 85125004
4

leather noun (plural leathers)
1. tanned and dressed hide: the processed hide of animals with the
fur or feathers removed.4

leathers noun (plural)
motorcyclists’ leather clothing (e.g., protective leather jacket, pants,
boots and gloves worn by motorcyclists)5

The examining attorney notes as follows:
Leather goods, ranging from clothes to furniture, have
been popular for thousands of years. Leather was initially
used for these purposes due to its ready availability as a
by-product of hunting. Its variety of colours, textures, and
renowned durability has always made it an extremely
popular material.6
The same article, when tracing the long history of leather clothing, recounts
the wide range of such uses:
As with other leather products, leather pants have been
popular for hundreds of years. In medieval times, leather
pants were very common. In modern times, leather pants
are worn for fashion, fetish and practicality by both men
and women. Fans of leather fashions have come to
appreciate the many styles, colours and patterns of leather
pants. … The practicality of leather pants is appreciated by
many including motorcycle riders.7 Leather is a very strong,
durable material that is almost impossible to tear, therefore
providing great protection to its wearers.8
Applicant acknowledges that his ancestors in the interior wilderness of Alaska
were known to make clothing from leather and other hides. Furthermore, as shown

4 Id.
5 Id.
6 http://www.leatherguru.com/
7 See, e.g., http://www.toroleather.com/ a site for top quality buffalo hide for motorcycle
apparel such as chaps and jackets. See also definition at fn.5, supra.
8 http://www.leatherguru.com/
Serial No. 85125004
5

throughout this record, leather apparel has also emerged in the modern fashion
world with a burst of popularity.9
III. Analysis
We begin our review of this case by stating the obvious as to the first prong of
the test enunciated above: the applied-for mark HYDZ consists of the phonetic
equivalent of the word “hides” – a term that misdescribes the character, quality,
function, composition, or use of the involved goods. Applicant admits that these
goods are not made of leather or other animal hides.
That leads to a query as to the second prong of the test for deceptiveness: are
prospective purchasers likely to believe that the misdescription actually describes
the goods? The examining attorney takes the position that prospective consumers
will believe the applied-for mark indicates that these sweatpants and sweatshirts
are made of leather.
By contrast, in support of his position on this second prong, applicant argues
that consumers in the market for activewear or workout clothing are most
unlikely to want sweats made of a non-absorbent material like leather or other
processed hides inasmuch as sweatpants and sweatshirts are generally made of
soft and breathable materials like cotton.10 Furthermore, applicant contends that
members of the relevant consuming public have substantially no experience in

9 See “Leather Apparel Is More Popular Than You Think,” by Bill Entman, Sept. 8, 2010,
http://www.artipot.com/articles/669749/leather-apparel-is-more-popular-than-you-
think.htm
10 Applicant supplied a dictionary entry for sweat shirt: usu. Long-sleeved cotton jersey
pullover. WEBSTER’S NEW COLLEGE DICTIONARY. See also http://en.wikipedia.com.
Serial No. 85125004
6

the marketplace with sweatpants or sweatshirts made of leather or leather
substitutes.
However, the examining attorney counters that the consuming public is indeed
conditioned to encounter and purchase sweatpants and sweatshirts made from
leather, pointing to Internet sites promoting items of apparel made from leather.
Initially, we note that at least some of the examining attorney’s purported
evidence seems not to support his position. For example, several websites contained
page headings like “Leather Sweatshirts & Hoodies” or “Leather Sweatshirts” but
we found no evidence therein of any sweatshirts actually made of leather.
CafePress > Sweatshirts & Hoodies >
Leather Sweatshirts & Hoodies11

Leather Sweatshirts
Rocky® hoodies in price range of $40
to $50 all appear to be
cotton/polyester blends12

Pages of leather hockey jackets (e.g., Boston Bruins, Chicago
Blackhawks, etc.) selling for $200.00 to $300.00, but providing no
evidence (descriptions or pictures) of “leather sweatshirts.”13

11 www.cafepress.com
12 http://www.countryoutfitter.com/
13 http://www.pronto.com/shop/champion-leather-sweatshirts-and-jackets
Serial No. 85125004
7

In the way of supporting evidence, the
record does contain at least one prominent
example of a truly functional leather
“ultimate hoodie” sought out by athletes. A
defining characteristic of Nike’s chic AW77
full-zip up men’s leather hoodie / waterproof
running jacket is an extra neck shield on the
front of the hood (a multi-panel “scuba
hood”) with chin-high zips for warmth.
NIKE AW77 FULL-ZIP
MEN’S HOODIE iD
14
In a somewhat more playful vein, we also note a copy of a web page the
examining attorney introduced from www.etsy.com – an artsy online marketplace

for handmade goods (Amazon.com meets eBay!). Cheryl
Bohlin d.b.a. AAardvark Market offers unusual vintage
couture from Farmingdale, NJ, and notes the following:
“As [the funky rock musician Beck Hansen] would say,
‘[Y]ou’re mixing fitness with leather’ ... Ever wanted a
pair of leather pants but didn’t get them because they
were uncomfortable? These are for you. Stretchy side
and knee panels. Will fit many sizes up to a 32” ”15
Statement Leather Sweat-
Pants

14 http://www.trendhunter.com/trends/strangers-in-luxurious-wardrobe and
http://hypebeast.com/2009/9/nike-sportswear-the-aw77-hoodie-style-photo-shoot
15 http://www.etsy.com/86573299/statement-leather-sweat-pants as accessed by the
examining attorney on February 12, 2012.
Serial No. 85125004
8

Similarly, in a regular
feature in “Fighting crimes of
fashion” on The Fashion Police
website, one finds a mocking
tone about anyone paying
$1,000.00 for a pair of leather
sweatpants, and the text ends:
“ … We suspect these will
make you sweat at least a
little more than some other,
more breathable fabric
would. (We also suspect you
won’t be wearing them to
work out in, though, so that
may not be an issue for
you.) But what do you think
of the introduction of the
leather sweatpants into
your life, as part of the
continuing bid to make
‘casual’ seem ‘chic’? Are you
on board? … .”16

As a matter of fact, the examining attorney included separately a screen print of
the www.shopbop.com website (referenced in the caption above) showing the same
leather sweatpants identified as “HHH by Haute Hippie Leather Sweatpants Style
# HHNNN20031”; and finally, “HHH by Haute Hippie Leather Sweatpants” made
an appearance on yet another website in the record.17

16 http://www.thefashionpolice.net/2011/01/trend-alert-leather-sweatpants.html as
accessed by the examining attorney on February 12, 2012.
17 http://www.shoeperwoman.com/
Serial No. 85125004
9

In a third light-hearted (and totally
non-commercial) example in the record,
one Jeff Cormier posted to his Flickr’s
photo-stream account what appears to be
a random Instagram picture of September
10, 2011 (likely taken in a retail store).
Whether Mr. Cormier was tempted to buy
a pair, or was simply astonished at the prospect others might purchase them, he
offers no explanation!18
In a much more serious vein, however, some vendors elevate the stylistic
appeal of leather sweats to dizzying heights. Evidently, “[t]here is something about
leather that turns heads and catches attention. It may be the smell, the texture or
the classic style that comes with leather products.”19 Accordingly, the examining
attorney has placed into the record several examples of haute couture where pants
made of expensive European leather are nonetheless nominated as “sweat pants.”
We note in the record an advertisement of Chrome Hearts Unisex Leather
Sweatpants, Size XL, having an asking price of $995.00.20 Similarly, the following

18 http://www.flickr.com/photos/jffcrmr/6133347975/.
19 http://www.blogofstuff.com/leather_jacket/leather_jacket101.html
20 www.ebay.com Apparently Chrome Hearts is a luxury brand founded in 1988 by
motorcycle enthusiast Richard Stark that specializes, inter alia, in leather clothing from
Hollywood. See also: “Hollywood celebrities have favored leather clothing for years. In fact,
James Dean epitomized the leather jacket when he was starring in movies years ago, and
Henry Winkler of "Happy Days" fame did the same years later. The leather jacket makes a
statement, and the person wearing it definitely stands out from the crowd.”
http://www.artipot.com/articles/669749/leather-apparel-is-more-popular-than-you-
think.htm
Serial No. 85125004
10

screen print shows “Black Italian Lambskin Leather Sweatpants” that were
introduced in 2010, and went on sale for $800.00.
21

 At left is a picture of a
category of goods known
as “Luxe Sweatshirt,” in
this case, “Laundry by
Shelli Segal,” a Leather
and Knit Hoodie, listed for
$198.00.22

At right is a picture of a
pair of Kylie Chevron
Sweatpants from Revolve
Clothing. 23 

21 http://www.slowandsteadywinstherace.com/products/leather-sweatpants
22 http://shop.nordstrom.com/
23 www.shopstyle.com now http://shopping.popsugar.com/
Serial No. 85125004
11

Apart from apparel clearly categorized as sweat wear, there are multiple
examples in the record of the popularity of leather jackets, shirts and sweaters
being marketed as indicators of a luxurious lifestyle. For example, the examining
attorney has included a link to expensive parkas (“anoraks”) – heavy-hooded, often
hip-length coats frequently lined with fur.24 Another website
displays a chic “Fabian Leather Shirt,” described as having
“Military-inspired style with a supple touch doubles as a shirt and
a jacket … ,” sporting an initial price of $160.00.25 As the
examining attorney points out, “such leather items are markedly more expensive
and preferred over similar non-leather apparel”:
A good quality piece of leather clothing is certainly going to cost more
than your average garment, but considering how long it is going to last
you, it’s well worth every penny you spend. A leather jacket, for
example, will give you many years of use, and it will look as good the
last time you wear it as it did the first.
If you have always wanted to purchase leather apparel, go ahead and
indulge yourself. Whatever you choose to buy, rest assured it will last
for years, look good, and be the most comfortable piece of clothing in
your closet. You may pay a little more, but the years of service you get
will make it worth every cent you spend.26
Referring then, to the third prong of the test for deceptiveness, the examining
attorney argues that given this evidence about the high quality and fine reputation
of leather goods, the misdescription of applicant’s mark is likely to affect a
significant portion of the relevant consumers’ purchasing decisions. That is, based

24 See http://www.thefind.com/apparel/info-leather-anorak
25 www.undergear.com
26 http://www.artipot.com/articles/669749/leather-apparel-is-more-popular-than-you-
think.htm
Serial No. 85125004
12

upon the particular look and feel of leather clothing, consumers would be more
likely to purchase goods made of leather or similar animal hides, and may be willing
to pay a premium price for those goods.
Based upon the totality of the evidence in the record, we agree that if Mr.
DeWilde wanted to register the term HYDZ for use in connection with non-athletic
goods that included pants, jackets or coats – especially given our long-standing
precedent in this area – the examining attorney would have answered all three
prongs of the Budge test in the affirmative, and we would have to affirm the
deceptiveness refusal.
However, we have seen that applicant is not marketing expensive lambskin
leather items of haute couture, but rather has limited his identification of goods to
“apparel not made of leather or other animal hides, namely, sweatpants and
sweatshirts for casual wear or for wear during exercise.” Applicant is selling sweat
wear made of soft and breathable materials. As noted above, the definition of sweat
shirt is a “long-sleeved cotton jersey pullover.” By contrast, in this record, the use of
words like “sweatpants” in touting high end leather goods speaks more to the casual
design, i.e., drawstring closures or loose fitting, rather than referring to an item of
actual activewear made of soft, breathable materials. Given this distinction, the
examining attorney has failed to demonstrate that members of the consuming
public “are conditioned to encounter and purchase activewear made from leather.”
Finally, we note that applicant is not selling goods of faux leather that
potential customers might mistakenly believe to be leather. Contra R. Neumann &
Co. v. Overseas Shipments, Inc., 326 F.2d 786, 140 USPQ 276 (CCPA 1964)
Serial No. 85125004
13

(DURA-HYDE held deceptive and deceptively misdescriptive of plastic material of
leather-like appearance made into shoes). Hence, we find that the record supports
applicant’s position that the relevant, prospective purchasers would not believe
that the term HYDZ describes the material composition of applicant’s goods. We
find that the case at bar is not in any way analogous to the contentions of a
hypothetical owner of a HIDE-formative mark used on cheaper or less durable faux
leather products, for example, wherein the true nature of the goods is only
revealed by carefully studying details allegedly printed on the hang tag. In such a
case, our precedent is clear that clarifications or disclaimers on a label cannot
preclude a determination that a mark is deceptive. See Budge, 8 USPQ2d at 1261;
and In re Woodward & Lothrop Inc., 4 USPQ2d 1412 (TTAB 1987). That is not the
situation herein.
Accordingly, prongs two and three of the Budge test have not been met, and
we find that the examining attorney has failed to demonstrate by a
preponderance of the evidence that applicant’s mark is deceptive when used in
connection with the identified goods.
Decision: The refusal to register applicant’s HYDZ mark is hereby reversed.