Solomon

Trademark Trial and Appeal Board

Jan 13, 1998

No. 74542359 (T.T.A.B. Jan. 13, 1998)

Oral Hearing: Paper No. 14
May 6, 1997 GDH/gdh
THIS DECISION IS NOT CITABLE AS
PRECEDENT OF TTAB JAN 13, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Solomon
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Serial No. 74/542,359
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Steven Solomon, Esq. for applicant.
Craig D. Taylor, Senior Examining Attorney, Law Office 107
(Thomas Lamone, Managing Attorney).
_______
Before Hohein, Hairston and Walters, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Sarita Solomon has filed an application to register the
term "COMMUNITY PROPERTIES" as a trademark for a "newspaper
column reporting local, regional and national news, trends and
developments in the residential real estate and mortgage
industry."1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis

1 Ser. No. 74/542,359, filed on June 27, 1994, which alleges dates of
first use of December 9, 1993.
Ser. No. 74/542,359
2
that, when used in connection with applicant’s goods, the term
"COMMUNITY PROPERTIES" is merely descriptive of them.
Applicant has appealed. Briefs have been filed and an
oral hearing was held. We affirm the refusal to register.
It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning of
Section 2(e)(1) of the Trademark Act, if it immediately describes
an ingredient, quality, characteristic or feature thereof or if
it directly conveys information regarding the nature, function,
purpose or use of the goods or services. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). It is not necessary that a term describe all of the
properties or functions of the goods or services in order for it
to be considered to be merely descriptive thereof; rather, it is
sufficient if the term describes a significant attribute or idea
about them. Moreover, whether a term is merely descriptive is
determined not 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 those 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. See In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). Consequently, "[w]hether consumers could guess what
the product [or service] is from consideration of the mark alone
is not the test." In re American Greetings Corp., 226 USPQ 365,
366 (TTAB 1985).
Ser. No. 74/542,359
3
Applicant, in her brief, states among other things
that:
Applicant is the author of a weekly
newspaper column that regularly reports on
all facets of national, regional and local
news, trends and developments in the
residential real estate marketplace and in
mortgage rates applicable to residential home
construction and sales. "COMMUNITY
PROPERTIES" (the mark) is the title of
applicants [sic] newspaper column. The
format of COMMUNITY PROPERTIES consist [sic]
of articles discussing residential real
estate developments at the national and local
level culled from such well known sources of
information as the National Association of
Realtors, the U.S. Commerce Department, the
U.S. Department of Housing and Urban
Development and the Federal Home Loan
Mortgage Corporation.
She insists, however, that in such context, the term "COMMUNITY
PROPERTIES" is not merely descriptive. Specifically, applicant
maintains that:
[T]he mark is "arbitrary," in that it applies
common words, usually referring to property
owned jointly by a husband and wife, i.e.,
community property, in an unfamiliar way, to
a real estate news column. Alternatively,
applicant further contends that the mark is
"suggestive," in that it subtly indicates
something about the product but requires the
readers of the column, i.e., the general
public, to exercise imagination as to the
nature of the product. ....
In addition, according to applicant, she "purposefully
stayed away from using common descriptive words such as real
estate, news, residential and sales" in "devising the mark
COMMUNITY PROPERTIES". Although acknowledging that, as disclosed
by the copies of her initial article which she submitted as
specimens, the statement is made that "[t]his is the inaugural
Ser. No. 74/542,359
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column in what will be a series of weekly articles informing our
readers of developments in the local residential home sales
market," applicant asserts that:
The language cited above was never
intended to be fully descriptive of the news
column. Rather the text of the news column,
cited by the Examining Attorney in the final
determination, dealt primarily with local
issues because the author initially attempted
[to] gain readership by concentrating on news
and information affecting the local
residential single-family resale market.
Thereafter, and in an effort to correct
the false impression created by a reading of
applicants [sic] first article, applicant
submitted with the request for reconsidera-
tion Twenty Eight (28) additional ...
articles, written prior to the examining
attorneys [sic] inituial [sic] decision in
this matter, which convey a more accurate
view of the true nature of the news column as
containing national, regional and local news
content.
The Examining Attorney, on the other hand, argues that
the term "COMMUNITY PROPERTIES" is merely descriptive "because it
conveys an immediate idea of the subject matter of applicant’s
column." In particular, the Examining Attorney urges that "the
wording describes a column dealing with real estate information."
Relying upon definitions of the words "community" and "property,"
which the excerpts which he made of record from Webster’s Ninth
New Collegiate Dictionary at 267 and 943 respectively define as
"the people with common interests living in a particular area;
broadly : the area itself" and "something owned or possessed;
specif : a piece of real estate," and additionally noting that
the same dictionary at 267 list the term "community property" as
Ser. No. 74/542,359
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signifying "property held jointly by husband and wife,"2 the
Examining Attorney maintains that "the average purchaser would
readily perceive the combination of [the] terms ["COMMUNITY" and
"PROPERTIES"], in their ordinary meaning, as real estate in a
particular area." As additional support for his position, the
Examining Attorney observes that:
Applicant’s specimens of record underscore
the descriptive significance of the wording
as applied to the goods. According to the
material, the text identifies the column as
"a series of weekly articles informing our
readers of developments in the local home
sales market." It is noted that "the average
price of existing homes sold in Westport and
Weston during September, October and
November, 1993, increased by over 10%, when
compared to the same period in 1992,
according to home sales reported by the
Wesport-Weston Board of Realtors." It is
further noted that "the May increase in
interest rates by the Federal Reserve has
slowed the pace of growth in the real estate
economy." The wording, in short, is merely
descriptive of the subject matter.

2 We also note, in this regard, that the term "community property" is
further set forth in Black’s Law Dictionary (5th ed. 1979) at 254 as:
Property owned in common by husband and wife each having an
undivided one-half interest by reason of their marital
status. The eight states with community property systems
are: Louisiana, Texas, New Mexico, Arizona, California,
Washington, Idaho, and Nevada. The rest of the states are
classified as common law jurisdictions. The difference
between common law and community property systems centers
around the property rights possessed by married persons. In
a common law system, each spouse owns whatever he or she
earns. Under a community property system, one-half of the
earnings of each spouse is considered by the other spouse.
It is settled that the Board may properly take judicial notice of
dictionary definitions. See, e.g., Hancock v. American Steel & Wire
Co. of New Jersey, 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953); and
University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co.,
Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983).
Ser. No. 74/542,359
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With respect to the additional articles which applicant
later submitted, the Examining Attorney contends that such
columns likewise support the refusal to register. The Examining
Attorney, in particular, accurately points out that:
These articles are replete with descriptive
references to real estate properties in the
community of Westport, Connecticut.
Applicant’s [sic] usually identifies
[national or regional] trends or developments
followed by an explanation of [their] impact
on the local real estate. For example, the
applicant writes that "the latest government
figures show a slowing in home building,
adding yet another sign that rising interest
rates are slowing housing activity." In the
wake of this trend, she identifies "some of
the Wesport and Weston residential homes that
changed hands recently." In another column,
applicant notes that [in] "a report released
by the National Association of Realtors, May
sales of existing previously owned homes fell
seven tenths of 1 percent to an annual
seasonally adjusted rate of 4.09 million,
from 4.12 million in April. [Sales were
mixed regionally, rising 10.5 percent in the
Northeast and 1.9 percent in the South while
declining 12.4 percent in the West and flat
in the Midwest.]" She then lists, "in order
of worth, ... some of the Westport and Weston
residential homes that changed hands
recently."
Upon careful consideration of the evidence and
arguments presented, it is our view that, when applied to
newspaper columns which report local, regional and national news,
trends and developments in the residential real estate and
mortgage industry, the term "COMMUNITY PROPERTIES" immediately
describes, without conjecture or speculation, a significant
aspect or feature of applicant’s goods, namely, that the subject
matter of her newspaper columns deals with properties
(specifically, residential real estate) which have changed hands
Ser. No. 74/542,359
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recently in the community composed of Wesport and Weston,
Connecticut. Applicant’s argument that the term "COMMUNITY
PROPERTIES" is suggestive of her real estate news column in that
it refers, in a novel or unfamiliar way, to property owned
jointly by a husband and wife, that is, to community property,
ignores the fact that the former is not simply the plural of the
latter but has, instead, a connotation which is totally different
from that of a property law concept or tenancy. As used in the
context of her real estate news column, which often features
photographs of recently sold homes in addition to listing sales
of dwellings in order of their worth or selling price, the term
"COMMUNITY PROPERTIES" has no ambiguity or lack of clarity in its
meaning and, especially in a common law jurisdiction such as
Connecticut, would not evoke a suggestion of the civil law
concept or tenancy of community property.
In consequence thereof, the term "COMMUNITY
PROPERTIES," as used in connection with applicant’s newspaper
columns dealing with local, regional and national news, trends
and developments in the residential real estate and mortgage
industry, has a plain and readily understood meaning signifying
that a principal aspect or subject of applicant’s columns is
information about properties which have sold recently in the
community under discussion, with applicant typically relating
national, regional or local real estate developments to the area
composed of Westport and Weston, Connecticut. There is nothing
in the term which is ambiguous, incongruous or susceptible to
multiple connotations, nor is any imagination, cogitation or
Ser. No. 74/542,359
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gathering of further information necessary in order for real
estate professionals or members of the general public, which
would constitute the purchasers or readership of applicant’s
columns, to perceive precisely the merely descriptive
significance of such a term. Moreover, that applicant may be the
first person to have used the term "COMMUNITY PROPERTIES" in
connection with her real estate newspaper columns, particularly
in light of the stated fact that she "purposefully stayed away
from using common descriptive words such as real estate, news,
residential and sales" in selecting a mark, is not dispositive
where, as here, the term unequivocally projects a merely
descriptive connotation. See In re MBAssociates, 180 USPQ 338,
339 (TTAB 1973).
Accordingly, because the term "COMMUNITY PROPERTIES"
conveys forthwith the principal subject matter of applicant’s
newspaper columns reporting on local, regional and national news,
trends and developments in the residential real estate and
mortgage industry, it is merely descriptive of such goods within
the meaning of the statute. See, e.g., In re Gracious Lady
Service, Inc., 175 USPQ 380, 382 (TTAB 1972) ["CREDIT CARD
MARKETING" merely descriptive of periodic pamphlet devoted to
subjects of interest to those engaged in credit card
merchandising field]; Sterling House, Inc. v. Dell Publishing
Co., Inc., 174 USPQ 299, 300 (S.D.N.Y. 1972) ["DAYTIME TV" merely
descriptive of magazine devoted to daytime serialized television
programs]; and In re Nippon Kokan Kabushiki Kaishai, 171 USPQ 63,
64 (TTAB 1971) ["JAPAN STEEL NOTES" merely descriptive of
Ser. No. 74/542,359
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magazine containing articles relating to the Japanese steel
industry].
Decision: The refusal under Section 2(e)(1) is
affirmed.
G. D. Hohein
P. T. Hairston
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board