Smokey Mountain Chew, Inc.

Trademark Trial and Appeal Board

May 26, 1999

No. 75117428 (T.T.A.B. May. 26, 1999)

Paper No. 9
DEB
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MAY 26,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Smokey Mountain Chew, Inc.
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Serial No. 75/117,428
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William R. Gustavson of Sidley & Austin for Smokey Mountain
Chew, Inc.
Cynthia Tripi, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Simms, Hohein and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Smokey Mountain Chew, Inc. filed an application for
registration of the mark “SMOKEY MOUNTAIN FLAVOR DROPS” for
“tobacco and non-tobacco snuff or chew products.”1

1 Serial No. 75/117,428, in International Class 34, filed
June 1, 1996, based upon an allegation of a bona fide intention
to use the mark in commerce.
Ser. No. 75/117,428
2
The Trademark Examining Attorney issued a final
refusal to register based upon applicant’s failure to
comply with her requirements as to submitting a more
definite identification of goods, submitting advertising or
promotional materials, and agreeing to a disclaimer of any
descriptive matter in the mark.
Applicant has appealed the final refusal to register.
Briefs have been filed but applicant did not request an
oral hearing. We affirm each of the requirements of the
refusal to register.
The Trademark Examining Attorney takes the position
that applicant’s identification of goods:
…may refer to snuff or chewing tobacco as
well as to anything used with snuff or
chewing tobacco, such as snuff boxes (of
precious metal or not), tobacco spittoons,
tobacco flavoring, or tobacco pouches.
[emphasis in original]
(Trademark Examining Attorney’s appeal brief, p. 5).
We find that the Trademark Examining Attorney has
not abused her discretion in making this requirement.
Applicant’s present identification is not specific
enough to ensure proper classification in this
application. Furthermore, applicant’s explanation
that the “goods are products for snuff and chew”
demonstrates the concerns of the Trademark Examining
Ser. No. 75/117,428
3
Attorney that if this application should mature into a
registration with this identification of goods, third
parties will likely be unsure exactly what all may be
encompassed by these “products.”
With respect to the second issue, the Trademark
Examining Attorney correctly cites to the authority of
37 C.F.R. §2.61(b) to help her examine this intent-to-
use application. Trademark Rule of Practice 2.61(b)
requires the applicant “to furnish such information
and exhibits as may be reasonably necessary to the
proper examination of the application.” The Trademark
Examining Attorney’s request that applicant furnish
corporate literature about the exact type of goods on
which applicant intends to use this mark was clearly
reasonable. Such materials from applicant would have
better permitted her to work with applicant in coming
up with a proper identification of goods, ensuring the
proper international classification of the goods, and
helping her to decide which part or parts, if any, of
the composite mark, should be disclaimed. Again, we
find that the Trademark Examining Attorney has not
abused her discretion in making this requirement.
On the third issue, the Trademark Examining
Attorney takes the position that inasmuch as applicant
Ser. No. 75/117,428
4
has not cooperated with her earlier requirements for a
specific identification of goods and corporate
promotional materials, she cannot determine whether
the words “flavor,” or “drops” or both, are
descriptive and/or generic as applied to applicant’s
goods. As the Trademark Examining Attorney noted,
applicant has not “… addressed the propriety of the
disclaimer requirement in its Response to the initial
Office Action, nor raised the issue on appeal.” As
with the other two requirements herein, we find again
that the Trademark Examining Attorney has not abused
her discretion in making this requirement.
Decision: The refusal to register as to all
three requirements is affirmed.
R. L. Simms
G. D. Hohein
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial and
Appeal Board