Sabert Corp.

Trademark Trial and Appeal Board

Sep 30, 2002

No. 75882633 (T.T.A.B. Sep. 30, 2002)

Mailed:
September 30, 2002

Paper No. 18
DEB

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Sabert Corporation
________

Serial No. 75/882,633
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Ezra Sutton for Sabert Corporation.

Zhaleh Sybil Delaney, Trademark Examining Attorney, Law
Office 101 (Jerry Price, Managing Attorney).
_______

Before Quinn, Bucher and Holtzman, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Sabert Corporation sought to register the mark
STURDIWARE on the Principal Register in conjunction with
services recited, as amended, as “distributorships, mail
order services, retail store services and computerized on-
line ordering and retail services featuring food containers
of all kinds, including serving trays, platters, plates,
bowls and lids related thereto,” in International Class 35.1

1 Application Serial No. 75/882,633, filed on December 28,
1999, is based upon applicant’s allegation of a bona fide
intention to use the mark in commerce
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75/882,633
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Registration was refused pursuant to Section 2(e)(1)
of the Trademark Act, 15 U.S.C. 1052(e)(1), on the ground
that applicant’s mark is merely descriptive of its recited
services.
The case has been fully briefed, but applicant did not
request an oral hearing before this Board.
We affirm the refusal of registration.
The test for determining whether a mark is merely
descriptive is whether the involved term immediately
conveys information concerning a quality, characteristic,
function, ingredient, attribute or feature of the product
or service. In re Venture Lending Associates, 226 USPQ
285, 286 (TTAB 1985).
In support of her position, the Trademark Examining
Attorney placed into the record dictionary definitions of
the words “sturdy”2 and “ware.”3 Based on these entries,
the Trademark Examining Attorney argues that:
Given the plain dictionary meanings of
STURDY and WARE, consumers will immediately
recognize that the applicant’s dinnerware is
sturdy or substantially made when offered
under a STURDIWARE name in trade. In that

2 sturdy: adjective … 2. Substantially made or built;
stout; sturdy canvas. … The American Heritage Dictionary of the
English Language (Third Edition, 1992).
3 ware: noun … 1. Articles of the same kind, made of a
specified material or used in a specific application. Often used
in combination: earthenware, silverware, hardware, software. …
The American Heritage Dictionary of the English Language (Third
Edition, 1992).
Serial No. 75/882,633
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the proposed mark STURDIWARE immediately
tells the consumer something about the
services, it is not suggestive, but merely
descriptive.

(Trademark Examining Attorney’s appeal brief, p. 12).
By contrast, applicant asserts that STURDIWARE is a
coined, arbitrary combination of terms that has not been
previously used by others in the industry. Applicant
argues that this term is, at worst, suggestive because it
“is indefinite, susceptible to multiple connotations and
meanings, and requires imagination and thought in order for
the relevant public to perceive any significance of the
term as it relates to applicant’s services of distributing
various containers.” (Applicant’s brief, p. 2).
We must consider the issue of descriptiveness before
us in relation to the services identified in the instant
application, i.e., retail services featuring a variety of
food containers. More specifically, we learn from
applicant’s Web page, made of record by the Trademark
Examining Attorney, that applicant provides food containers
for “the foodservice, catering, deli take-out and retail
markets.” It supplies what it calls “high quality
plastics” for the “disposables industry.”
().
Serial No. 75/882,633
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The connotations of the word “sturdy” (e.g.,
substantially made or stout) apply well to food containers
like serving platters having a strong base and tightly-
closing lids. Applicant’s plastic platter packages and
similar containers easily fit into several types of
“wares,” whether the chosen category be “partyware,”
“plasticware” or “dinnerware.” Accordingly, when it comes
to applicant’s STURDIWARE, based on the instant record, we
agree with the conclusions of the Trademark Examining
Attorney that the name applicant has adopted for these
goods says it all, and hence is merely descriptive.
Applicant has made several arguments in favor of
registration that the Trademark Examining Attorney has
clearly answered during the prosecution of this
application. We affirm these points in summary fashion:
§ The slight misspelling herein (STURDI- instead of
STURDY-) does not automatically convert an otherwise
descriptive term into a suggestive term. The
Supreme Court has held that:
The word, therefore is descriptive, not
indicative of the origin or ownership of the
goods; and being of that quality, we cannot
admit that it loses such quality and becomes
arbitrary by being misspelled. Bad
orthography has not yet become so rare or so
easily detected as to make a word the
arbitrary sign of something else than its
conventional meaning….
Serial No. 75/882,633
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Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220
U.S. 446, 455 (1911). Similarly, other cases have
recognized that a slight misspelling does not change
a merely descriptive term into a suggestive term.
See Armstrong Paint & Varnish Works v. Nu-Enamel
Corp., 305 U.S. 315 (1938) (NU-ENAMEL; NU held
equivalent of “new”); In re Quik-Print Copy Shops,
616 F.2d 523, 205 USPQ 505, 507 n.9 (CCPA 1980)
(QUIK-PRINT held descriptive: “There is no legally
significant difference here between ‘quik’ and
‘quick’”); Hi-Shear Corp. v. National Automotive
Parts Association, 152 USPQ 341, 343 (TTAB 1966)
(HI-TORQUE “is the phonetic equivalent of the words
‘HIGH TORQUE’”); and In re Organik Technologies
Inc., 41 USPQ2d 1690 (TTAB 1997) (ORGANIK).
§ Almost thirty third-party registrations on the
Federal Register demonstrate that the Office has
consistently held the word STURDY (and its various
spellings) as descriptive for a wide variety of
goods, including but not limited to a range of
plastic containers. Some of these marks having the
word STURDY combined with highly descriptive or
Serial No. 75/882,633
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generic terms issued on the Supplemental Register.4
Where STURDY formative marks have issued on the
Principal Register, they were registered with the
benefit of a showing of acquired distinctiveness, or
in appropriate circumstances (e.g., non-unitary,
composite marks) with disclaimers of the word STURDY
(or STURDI).
§ A designation that is merely descriptive for a type
of goods (e.g., platters, food containers, and the
like in International Class 21) is also merely
descriptive of distributorship services featuring
those goods (e.g., various retail services in

4 Applicant’s response of August 20, 2001 – in addition to
applicant’s arguments as to why this designation is not merely
descriptive – contained the following sentence: “If the Examiner
still is not persuaded that the mark is not descriptive[,]
applicant requests that the mark be registered on the
Supplemental Register.” While the Trademark Examining Attorney
then maintained her final refusal – failing to respond at that
time to this request – the Trademark Examining Attorney points
out in footnote 5 of her appeal brief that this is an intent-to-
use application where the allegation of use under Section 1(c) of
the Act has still not been filed. Accordingly, amendment to the
Supplemental Register is not permissible.
However, we do take issue with the Trademark Examining
Attorney’s suggestion as to applicant’s current options herein.
Because applicant has pursued this appeal to final decision
rather than electing to file an Amendment to Allege Use (AAU)
along with an amendment to the Supplemental Register, applicant
may not return to its previous position and pursue registration
on the Supplemental Register with this application. Of course,
provided applicant has indeed made use of this designation, it
may file at any time a new application based upon use of this
alleged mark in commerce, requesting registration of this matter
on the Supplemental Register.

Serial No. 75/882,633
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International Class 35). Cf. In re Bonni Keller
Collections Ltd., 6 USPQ2d 1224, 1227 (TTAB 1987).
§ The fact that applicant may be the first and only
user of a term does not justify registration if the
term is merely descriptive. See In re National
Shooting Sports Foundation, Inc., 219 USPQ 1018
(TTAB 1983). Hence, that none of applicant’s
competitors has used this exact formulation does not
demonstrate that the designation is not merely
descriptive.
Decision: The refusal to register is affirmed.