Rieker Holding AG

Trademark Trial and Appeal Board

Sep 7, 2007

No. 78644481 (T.T.A.B. Sep. 7, 2007)

Mailed:
September 7, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Rieker Holding AG
________

Serial No. 78644481
_______

R. Glenn Schroeder of Hoffmann & Baron, LLP for Rieker
Holding AG.

Jill C. Alt, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______

Before Seeherman, Mermelstein, and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

On June 6, 2005, Rieker Holding AG filed a use-based
application (Serial No. 78644481) for the mark RIEKER
ANTISTRESS and design shown below for “footwear.”

THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 78644481
2
The Examining Attorney issued a requirement that
applicant disclaim the exclusive right to use the term
“antistress” on the ground that “antistress” is merely
descriptive. See Section 6(a) of the Trademark Act of
1946, 15 U.S.C. §1056(a). The Examining Attorney contends
that “antistress” is merely descriptive when used in
connection with footwear because it directly conveys the
fact that applicant’s footwear is designed to combat stress
(i.e., diminish foot stress). The Examining Attorney
introduced the following evidence in support of the
disclaimer requirement:1
1. A copy of a third-party registration, No.
2965531, for the mark OPANANKEN ANTISTRESS for “shoes,
sandals, slippers, tennis shoes, wooden shoes, male, female
and children’s boots and bottines.” That registration
includes a disclaimer of “antistress,” and the statement,
“The English translation of the word ‘antistress’ in the
mark is serving to prevent, cure or alleviate stress
condition.”2

1 The Examining Attorney also included a website from the United
Kingdom, www.hiking-boots-forall.co.uk. Since this website does
not show how consumers in the United States perceive the term at
issue, we have not given it any consideration.
2 We are not sure why the definition of the word “antistress”
appears as a translation statement in the registration.
Serial No. 78644481
3
2. Definitions for the term “anti” from the Merriam-
Webster Online Dictionary (www.m-w.com) as “3: serving to
prevent, cure, or alleviate 4: combating or
defending against ,” including
an illustrative list of “anti” terms, such as “antistress.”
3. The December 28, 2005 Office Action cites a
dictionary definition from the Merriam-Webster Online
Dictionary for the word “stress,” but it appears that the
excerpt from the dictionary was in such a large type format
that the actual definition is not shown. Applicant never
advised the Examining Attorney that it had not received a
legible copy of the definition. In any event, we take
judicial notice of the definition of the word “stress”
(which was, in fact, written out in the Office Action), as
meaning “a force exerted when one body or body part pushes
against, or tends to compress or twist another body or body
part; the deformation caused in a body by such as force.”3
4. The Rieker listing from the Sympatico
MSN.Shopping website (eshop.msn.ca) where the relevant
information states the following: “Feet rest on a carpet

3 The Board may take judicial notice of dictionary evidence.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983).
Serial No. 78644481
4
of gently massaging nubs – a signature of Rieker’s Anti-
Stress shoe line.”4
5. The Rieker section of the Zappos.com website
featuring frequently asked questions presented by
applicant:
WHY IS IT CALLED RIEKER ANTISTRESS?

. . . Antistress is the Rieker concept
of flexible and lightweight soles . . .

WHO WEARS RIEKER ANTISTRESS?

Women and men who want a unique blend
of comfort, casual fashion, quality and
great value.
* * *

WHAT MAKES RIEKER ANTISTRESS DIFFERENT
FROM OTHER SHOE BRANDS?

The high quality leather used (sic)
always soft, supple full grain cowhide,
the lasts are developed to give ample
room in the toe area of the shoe giving
the toes room to move when walking and
standing.

The Rieker Antistress concept of
lightweight, flexible and roomier in
the toe box combined with quality and
great value gives the customer a reason
to own a pair.

6. A listing from the shoe section from the My Simon
website (www.mysimon.com) providing the following:

4 Although “.ca” is indicative of a Canadian URL, the website
lists prices in U.S. dollars.
Serial No. 78644481
5
Rieker Woven Slingbacks
Anything designed with an “anti-stress
system” is speaking to us, especially
when it is handcrafted in beautiful
leather.

7. Two (2) articles retrieved from a LexisNexis
search showing use of the term “antistress”:
A. Haymarket Publishing Services Ltd. (July 19,
2006) references “anti-stress products.”5

B. Los Angeles Times (June 21, 2006), headline
“Koreatown, 24/7” an article referencing a
waitress wearing a t-shirt that reads “Anti-
Stress Kit: Bang head here.”

Applicant contends that ANTISTRESS is not merely
descriptive because it is a coined term which requires the
use of imagination or mature thought to create a nexus with
footwear.6 Applicant asserts that the Examining Attorney
reached the conclusion that ANTISTRESS was merely
descriptive only after utilizing a multi-stage reasoning
process.
[T]he Examining Attorney was forced to
dissect the term into two parts and
thereafter select dictionary
definitions for both “ANTI” and
“STRESS”. Thus, the Examining
Attorney, herself, was forced to
perform a “multi-stage reasoning

5 While newswire stories may not have the same probative value as
stories appearing in magazines and newspapers, they do have some
probative value. In re Cell Therapeutics Inc., 67 USPQ 1795,
1797-1798 (TTAB 2003).
6 Applicant’s Brief, pp. 2-3.
Serial No. 78644481
6
process” to determine the meaning of
the term “ANTISTRESS”.7

Opposer asserts that the Examining Attorney had to
dissect its mark because the term “antistress” does not
have a recognized meaning, citing the lack of an entry in
the Webster’s New Universal Unabridged Dictionary, p. 82
(2nd ed. 1983).8 According to applicant, this is important
in the case sub judice because the Examining Attorney has
failed to show that ANTISTRESS has a well understood and
recognized meaning. As evidence that ANTISTRESS does not
have a readily understood and recognized meaning, applicant
points out there is no evidence that ANTISTRESS is used by
anyone other than applicant in connection with footwear,
and the Examining Attorney “avoids addressing the evidence
of non-usage by arguing that being the first to use a
descriptive mark does not render such mark registerable.”9
Finally, applicant argues that Registration No.
2965531 for the mark OPANANKEN ANTISTRESS should be ignored
because each case must be determined on its own merits and
third-party registrations are not binding on the Board.

7 Applicant’s Brief, p. 3.
8 Applicant’s Response to Office Action (June 28, 2006).
9 Applicant’s Brief, p. 8.
Serial No. 78644481
7
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act of 1946, 15 U.S.C. §1052(e)(1), if it
directly conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use
of the goods or services. In re Abcor Development Corp.,
588 F.2d 811, 200 USPQ 215, 217-218 (CCPA 1978).
Whether a term is merely descriptive is not determined
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 the 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).
In other words, the question is not whether someone
presented with only the mark could guess what the goods or
services are. Rather, the question is whether someone who
knows what the goods or services are will immediately
understand the mark as directly conveying information about
them (i.e., whether someone familiar with applicant’s
“footwear” will understand ANTISTRESS to convey information
Serial No. 78644481
8
about the products). In re Tower Tech Inc., 64 USPQ2d
1314, 1317 (TTAB 2002).
First, we must determine whether “antistress” has a
readily understood meaning. As discussed above, the
Merriam-Webster Online Dictionary lists “antistress” as an
“anti” formative word. “Anti” means “serving to prevent,
cure, or alleviate,” and “stress” means “pressure” (“a
force exerted when one body or body part pushes against, or
tends to compress or twist another body or body part; the
deformation caused in a body by such as force”).10
Accordingly, “antistress” would readily be understood as
meaning alleviating force or pressure.
This definition is supported by Registration No.
2965531 for the mark OPANANKEN ANTISTRESS for “shoes,
sandals, slippers, tennis shoes, wooden shoes, male, female
and children’s boots and bottines.” Registrant disclaimed
the exclusive right to use “antistress” thereby recognizing
the descriptive significance of that term. In re Pollio

10 “Stress” is also defined as “[t]he force or pressure applied
or exerted between portions of a body or bodies.” Stedman’s
Medical Dictionary, p. 1708 (27th ed. 2000). See also, Dorland’s
Illustrated Medical Dictionary, p. 1712 (29th ed. 2000). The
Board may take judicial notice of standard reference works,
technical reference works, as well as dictionaries. In re
Broyhill Furniture Industries Inc., 60 USPQ2d 1511, 1514 n.4
(TTAB 2001); In re 3Com Corp., 56 USPQ2d 1060, 1061 N.3 (TTAB
2000); In re Astra Merck Inc., 50 USPQ2d 1216, 1219 (TTAB 1998).
Serial No. 78644481
9
Dairy Products Corp., 8 UPSQ2d 2012, 2014 n.4 (TTAB 1988);
In re Ampco Foods, Inc., 227 USPQ 331, 333 (TTAB 1985).
Even if we were to accept applicant’s position that
“antistress” is not a recognized unitary term, but a new
compound word formed by the terms “anti” and “stress,” the
compound word would still be viewed as merely the
combination of the individual words, in which each
component retains its readily understood meaning in
relation to the goods. Accordingly, the resulting
combination is merely descriptive. See In re Tower Tech,
Inc., supra (SMARTTOWER is merely descriptive of commercial
and industrial cooling towers); In re National Shooting
Sports Foundation, 219 USPQ 1018, 1020 (TTAB 1983). The
components of the term “antistress” do not lose their
readily understood significance in the combined expression
but form a term that describes a characteristic, feature,
or quality of applicant’s footwear (i.e., it relieves foot
stress). We fail to see anything incongruous, or any
unique meaning, in the combination of the terms forming
“antistress.” The combination does not create a new and
different commercial impression. Nothing is left for
conjecture or speculation. The compound term immediately
and unequivocally describes the characteristic, feature, or
quality of applicant’s footwear. Consumers for the goods
Serial No. 78644481
10
would immediately understand that the term “antistress,”
used in connection with footwear, describes a shoe designed
to relieve stress, or the “force exerted when one body or
body part pushes against, or tends to compress or twist
another body or body part; the deformation caused in a body
by such force.” Accordingly, the terms “anti” and “stress”
remain as descriptive in the compound as they are
individually.
The fact that ANTISTRESS does not appear in a
dictionary is not determinative where the term has a well-
understood and recognized meaning. In re Sun Microsystems
Inc., 59 USPQ2d 1084, 1087 (TTAB 2001); In re Orleans
Wines, Ltd., 196 USPQ 516, 517 (TTAB 1977); TMEP
§1209.03(b) (“The fact that a term is not found in a
dictionary is not controlling on the question of
registrability if the examining attorney can show that the
term has a well understood and recognized meaning”).
The third-party registration indicates that at least one
seller of footwear had adopted “anti-stress” for its
descriptive meaning. In any event, the fact that applicant
may be the first and only user of the term ANTISTRESS is
not dispositive. In re Sun Microsystems Inc., supra; In re
Acuson, 225 USPQ 790, 792 (TTAB 1985) (“A descriptive term
used first or even only by an applicant is not registrable
Serial No. 78644481
11
as long as the relevant purchasing public perceives the
term as describing the goods”). A term does not need to be
in common usage in a particular industry before it can be
found merely descriptive. In re Sun Microsystems Inc.,
supra. Anyone who manufactures or sells footwear might
have occasion to use the term “antistress” to convey the
fact that his or her footwear relieves stress.
In view of the foregoing, we find that, because the
term ANTISTRESS describes a characteristic, feature, or
quality of applicant’s footwear, ANTISTRESS is merely
descriptive.
Decision: The requirement for a disclaimer of
ANTISTRESS is affirmed. However, in the event that
applicant submits the required disclaimer within thirty
days from the mailing date of this decision, the refusal to
register will be set aside and the application will proceed
to publication.11 See Trademark Rule 2.142(g).

11 A proper disclaimer would read: "No claim is made to the
exclusive right to use ANTISTRESS apart from the mark as shown."