Sportswear, Inc.

Trademark Trial and Appeal Board

Aug 3, 2017

No. 86126599 (T.T.A.B. Aug. 3, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 3, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Sportswear, Inc.
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Serial No. 86126599
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Leslie C. Ruiter and Elizabeth A. Findley of Stokes Lawrence PS for Sportswear,
Inc.

Shaila E. Lewis, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Ritchie, Adlin, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Sportswear, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark SPARKLE TWILL in standard characters (TWILL disclaimed) for “customized
embroidery and imprinting of names and logos on goods and apparel to the order or
specification of others; manufacture of apparel to the order or specification of others,”
in International Class 40.1

1 Application Serial No. 86126599 was filed on November 22, 2013 under Section 1(a) of the
Trademark Act, 15 U.S.C. §1051(a), on the basis of Applicant’s claim of first use of the mark,
and first use of the mark in commerce, on November 21, 2013.
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The Trademark Examining Attorney has refused registration of the mark under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the
mark is deceptively misdescriptive of the identified goods. After the Examining
Attorney made the refusal final, Applicant timely appealed and requested
reconsideration, which was denied. The appeal is fully briefed. We affirm the refusal
to register.
Analysis of Deceptive Misdescriptiveness Refusal
Section 2(e)(1) of the Trademark Act prohibits registration of “a mark which, (1)
when used on or in connection with the goods of the applicant is . . . deceptively
misdescriptive of them.” 15 U.S.C. § 1052(e)(1). “The test for deceptive
misdescriptiveness under Section 2(e)(1) has two parts.2 First, we must determine
whether the matter sought to be registered misdescribes the goods or services. In
order for a term to misdescribe goods or services, ‘the term must be merely
descriptive, rather than suggestive, of a significant aspect of the goods or services
which the goods or services plausibly possess, but in fact do not.’. . . Second, if the
term misdescribes the goods, we must ask whether consumers are likely to believe
that misrepresentation.” In re Hinton, 116 USPQ2d 1051, 1052 (TTAB 2016) (quoting
In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1051 (TTAB 2002) (citations
omitted)). A refusal to register under Section 2(e)(1) may be affirmed if Applicant’s

2 Applicant argued in its main brief that the alleged misdescription would not be a material
factor in a decision to purchase Applicant’s services. 8 TTABVUE 14-15 (citing TRADEMARK
MANUAL OF EXAMINING PROCEDURE Section 1203.02(d)(i)). Materiality is not an element of
the Examining Attorney’s prima facie case for deceptive misdescriptiveness under Section
2(e)(1). In re Hinton, 116 USPQ2d 1051, 1055 n.24 (TTAB 2016).
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mark is deceptively misdescriptive with respect to any of the services identified in
the application. See In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012) (mere descriptiveness) (citing In re Stereotaxis,
429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005)).
I. Misdescription
As for whether the proposed mark is merely descriptive of a feature or
characteristic that Applicant’s services do not possess, “‘[a] term is merely descriptive
if it immediately conveys knowledge of a quality, feature, function, or characteristic
of the goods or services with which it is used.’” Chamber of Commerce, 102 USPQ2d
at 1219 (quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007)). Whether a mark is merely descriptive is determined in relation to
the goods or services for which registration is sought, not in the abstract or on the
basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 217-18
(CCPA 1978); In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1512 (TTAB
2016). The question “‘is whether someone who knows what the goods and services are
will understand the mark to convey information about them.’” DuoProSS Meditech
Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir.
2012) (quoting In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)).
The Examining Attorney argues that “the wording ‘sparkle twill’ does not refer to
a source of services, but, rather, a type of fabric and therefore misdescribes a feature
of custom embroidery and imprinting services because applicant admittedly does not
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use sparkle twill fabric in rendering its identified services.” 10 TTABVUE 5. She
relies upon:
(1) dictionary definitions of “twill” as “a fabric with a twill weave” and of
“sparkle” as “a little spark or fiery particle” and as “a sparkling
appearance, luster, or play of light,”3 which meanings cause “the
wording ‘sparkle twill’ [to] refer[] to a fabric with a twill weave that
contains a little spark, fiery particle, or sparkling appearance,” 10
TTABVUE 5-6; and

(2) Internet evidence showing that the word “twill” refers to a type of fabric
used in embroidery and apparel manufacturing services, 10 TTABVUE
5-6, and that “sparkle twill” is “used in the embroidery and apparel
industries to refer to a type of fabric,” 10 TTABVUE 6, that is “often
preferred or used for embroidered designs on apparel or for the
manufacturing of the apparel itself.” 10 TTABVUE 7.
The Examining Attorney argues that the proposed mark misdescribes Applicant’s
services “[b]ecause ‘sparkle twill’ refers to a type of fabric [and] when this wording is
used in connection with applicant’s embroidery, imprinting, and apparel
manufacturing services, it immediately describes the type of fabric used in the
process,” a description that is false because Applicant has admitted “that it is not
using sparkle twill fabric in its embroidery, imprinting and/or apparel manufacturing
services.” 10 TTABVUE 7.4

3 September 30, 2014 Office Action at 7-8 (MERRIAM-WEBSTER online dictionary (merriam-
webster.com) and DICTIONARY.COM (dictionary.com)).
4 Applicant responded to information requests issued during prosecution by stating that it
does not embroider with, imprint names and logos on, or manufacture apparel with, twill
fabric, March 30, 2015 Response to Office Action at 1, that its “appliqués are not made of
twill fabric, nor are the clothing items to which they are applied,” that its “services involve
the application of appliques to clothing items made of simple cotton knits or cotton blends,
not twill,” and that “‘twill’ applies to a variety of fabric types (linen, cotton, polyester, wool)
with a diagonal parallel lined weave,” and Applicant “stresses again that neither its ‘Sparkle
Twill’ appliqué technique, nor the resulting garments, have any connection with
‘twill’ patterned fabric.” May 12, 2016 Response to Office Action at 1.
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Applicant responds that “there is no such thing as ‘sparkle twill fabric,’ and
services cannot involve the use of a fabric that does not exist.” 8 TTABVUE 10. For
this proposition, Applicant relies primarily upon the following:
(1) Criticism of evidence made of record by the Examining Attorney, that
“Sparkle Twill” is only used in “Internet catalog marketing hype . . . used
for selling particular clothing items,” 8 TTABVUE 10;

(2) Criticism of evidence made of record by the Examining Attorney, that such
uses by “a few fabric re-sellers” involve either (a) a “linguistic logical
fallacy,” namely, use of “the verb ‘sparkle’ using incorrect grammar when
describing various types of fabrics that appear to be ‘sparkly,’” 8 TTABVUE
10;5 or (b) “merely coined product names,” 8 TTABVUE 10;6

(3) The testimony of Applicant’s counsel Leslie C. Ruiter in a declaration that
she has “never heard of or seen any fabric called ‘sparkle twill,’” and that
SPARKLE TWILL “is a made-up phrase that does not apply to any fabric;”7
and the testimony of Applicant’s Chief Executive Officer Chad A.
Hartvigson in a declaration that “no fabric exists or has existed which has

5 In its reply brief, Applicant reiterates that “[m]ost examples of the phrase ‘sparkle twill’
which the Examining Attorney provided to demonstrate that ‘sparkle twill’ is a specific fabric
were with respect to a description of clothing or accessory. These examples indicate a misuse
of the noun ‘sparkle’ (rather than the adjective ‘sparkly’) to describe the final product.” 11
TTABVUE 3-4. Applicant characterizes this evidence as “a few instances of marketing or
promotional language by websites without any particular expertise or credibility in the field
of fabrics . . . .” 11 TTABVUE 4.
6 These arguments address evidence made of record on the final refusal to register. 8
TTABVUE 10. With respect to the other record evidence, Applicant “notes that it has not
here distinguished or addressed evidence submitted with the examining attorney’s previous
Office Actions in this proceeding. Should the Board consider the examining attorney’s
previous evidence and responses, Applicant respectfully requests that the Board likewise
consult the Applicant’s corresponding Responses to Office Action and corresponding
submission.” 8 TTABVUE 11 n.1. We decline this request and deem Applicant to have waived
any arguments regarding this evidence that it made during prosecution but did not maintain
in its main appeal brief. See, e.g., In re E5 LLC, 103 USPQ2d 1578, 1579 n.2 (TTAB 2012).
We have, of course, considered all evidence made of record by Applicant.
7 March 30, 2015 Response to Office Action at 10-11 (Ruiter Decl. ¶ 4). The Examining
Attorney dismisses Ms. Ruiter’s declaration out of hand because “it is limited to the view of
only one person who happens to also be the attorney of record for this case and is therefore
biased.” 10 TTABVUE 7-8. As Applicant’s advocate, Ms. Ruiter is obviously an interested
witness, but her declaration states that she has also sold fabrics in stores and has worked as
a tailor and seamstress, Ruiter Decl. ¶ 3, so we have considered her testimony.
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been referred to as ‘Sparkle Twill,’” and that he is “not aware of any fabric
or non-fabric material that is known as ‘Sparkle Twill,’”8 and

(4) Criticism of the evidence made of record by the Examining Attorney in the
final refusal because it post-dates Applicant’s claimed first use of its
proposed mark. 8 TTABVUE 11.9
Applicant’s core argument, in response to the evidence made of record by the
Examining Attorney, that “there is no such thing as ‘sparkle twill fabric,’ and services
cannot involve the use of a fabric that does not exist,” 8 TTABVUE 10, misses the
mark. “Twill” is “a fabric with a twill weave” (MERRIAM-WEBSTER ONLINE DICTIONARY,
merriam-webster.com) and “sparkle” means “a sparkling appearance, luster or play
of light” (DICTIONARY.COM, dictionary.com).10 Mr. Hartvigson acknowledges that “[t]he
word ‘twill’ applies to a variety of fabric types (linen, cotton, polyester, wool) with a

8 6 TTAB 26 (Hartvigson Decl. ¶ 13). In paragraphs 14-19 of his declaration, Mr. Hartvigson
testifies about Applicant’s promotional expenditures, sales, Internet exposure, and industry
awards and recognition. These matters are irrelevant on this appeal. Although deceptively
misdescriptive terms are eligible for registration on the Principal Register if they have
acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f),
Applicant does not seek registration on that basis.
9 Applicant makes a convoluted argument, based upon the Federal Rules of Evidence and
other doctrines of trademark law, that the Board should “require an Examiner to prove
descriptiveness largely by evidence of use of the term prior to Applicant’s first use dates or
at least prior to Applicant’s filing date.” 8 TTABVUE 13 n. 2. We decline to do so because the
“fact that Applicant may be the first or only user of a term does not render that term
distinctive, if it otherwise meets the standard” for descriptiveness under § 2(e)(1). Fat Boys,
118 USPQ2d at 1514 (“trademark law does not countenance someone obtaining ‘a complete
monopoly on use of a descriptive term simply by grabbing it first.’”) (quoting KP Permanent
Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 72 USPQ2d 1833, 1838 (2004)). If
Applicant were correct that we could not consider evidence regarding mere descriptiveness
from the period after Applicant’s first use, it would be impossible for a mark to become
generic, the ultimate in descriptiveness, based upon evidence post-dating the first use of the
alleged mark. That is not the law. See, e.g., Neapco Inc. v. Dana Corp., 12 USPQ2d 1746,
1747 (TTAB 1989); Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750,
1763 (TTAB 2013), aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014).
10 September 30, 2014 Office Action at 7-8.
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diagonal parallel line weave.” 4 TTABVUE 26 (Hartvigson Decl. ¶ 12). Applicant thus
“does not deny that twill is a type of fabric weave that can be used in appliqué; in
addition, twill can have sparkly properties (or glittery or matte).” 11 TTABVUE 3.
The dictionary definitions of “sparkle” and “twill,” and Applicant’s acknowledgement
of the descriptive meaning of those words in the context of the identified services,
indicate that the combination of the descriptive terms “sparkle” and “twill” “results
in a composite that is itself merely descriptive” of properties that Applicant concedes
that its services do not possess. Fat Boys, 118 USPQ2d at 1516. The record evidence
shows that the composite of the words “sparkle” and “twill” in Applicant’s mark refers
to “a type of fabric weave that can be used in appliqué” (or in the custom manufacture
of apparel) with a “sparkling appearance,” even if, as Applicant claims, there is not a
unique type of fabric called “sparkle twill.”
Indeed, “sparkle twill” refers to fabrics with a sparkling appearance.

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March 10, 2014 Office Action 2-4.11

11 All highlighting in this evidence was supplied by the Examining Attorney during
prosecution.
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May 5, 2015 Office Action at 5.

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June 3, 2016 Office Action at 2-3, 5.
“Sparkle twill” also refers specifically to fabrics used in customizing apparel:
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May 5, 2015 Office Action at 6.

May 5, 2015 Office Action at 4.
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June 3, 2016 Office Action at 4.
Equally importantly, Applicant itself uses SPARKLE TWILL in a similar manner
to describe features of its custom-made clothing. Portions of Applicant’s specimen of
use and pages from its website using SPARKLE TWILL in this manner are
reproduced below.
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November 22, 2013 specimen of use at 3 (reproduced in illustrative part).

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March 30, 2015 Response to Office Action at 2-3, 5-6, and 9.12 It is settled that
“[e]vidence of the context in which a mark is used on labels, packages, or in
advertising material directed to the goods is probative of the reaction of prospective
purchasers to the mark.” Abcor, 200 USPQ at 218; In re Promo Ink, 78 USPQ2d 1301,

12 A blogger also referred to the introduction of Applicant’s “Sparkle Twill line for schools and
sports,” and “the bling in part of the fabric.” 4 TTABVUE 31 (Hartvigson Decl. ¶ 14, Ex. A).
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1303 (TTAB 2006); see also In re Hunter Fan Co., 78 USPQ2d 1474, 1476 (TTAB 2006)
(“applicant’s own use of the term ERGONOMIC . . . highlights the descriptive nature
of this term …”).
Applicant’s various descriptions of the goods resulting from its “customized
embroidery and imprinting” services and “manufacture of apparel” services as
bearing “Sparkle Twill™ Embroidered Lettering,” or as being “Embroidered with
Sparkle Twill™,” “customized with sparkle twill,” made “with Sparkle Twill™,” or
featuring “sparkle twill™ designs,” communicate, notwithstanding the (mis)use of
the “™” symbol, that “sparkle twill” is a feature of the goods, and thus a feature of
the services that create them.13
The evidence in the record as a whole is sufficient to establish a prima facie case
that the term “sparkle twill” describes various types of twill fabric with a sparkling
appearance that can be used in embroidery, or in the custom manufacture of apparel
through processes other than embroidery. See Fat Boys, 118 USPQ2d at 1513. Ms.
Ruiter’s and Mr. Hartvigson’s testimony that there is no unique fabric called “sparkle
twill” neither addresses this evidence, nor otherwise rebuts the Examining Attorney’s
prima facie case, and Applicant offers no contrary evidence.14

13 Applicant uses the symbol “™” next to its putative service mark in these materials. The
mere “[u]se of the letters ‘™’ on a product does not make unregistrable matter into a
trademark.” In re Remington Prods. Inc., 3 USPQ2d 1714, 1715 (TTAB 1987).
14 Applicant’s claim that its proposed mark is “suggestive of the phrase ‘tackle twill’ which is
commonly used to refer to the appliqué process itself, rather than to a specific type of fabric
used in the process,” 11 TTABVUE 3, based upon evidence regarding the “tackle twill”
process, does not address, much less rebut, the Examining Attorney’s showing that “sparkle
twill” refers to various twill fabrics with a sparkling appearance. The only references in the
record to “sparkle twill” as a technique or process is a line on Applicant’s specimen (captioned
“Introducing New Sparkle Twill™!”), and several lines in Applicant’s March 7, 2014 press
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Applicant also provides no basis to dismiss the record evidence as “Internet
catalog marketing hype” because it uses words incorrectly, in Applicant’s estimation.
11 TTABVUE 4.15 The Board is not an arbiter of proper use of the English language.
Our task is not to determine whether the uses of “sparkle twill” in the record comport
with the rules of grammar, but rather to determine whether “sparkle twill” is
descriptive. The record establishes that it is, whether or not these uses reflect the
King’s English.
Because the record shows that the words “sparkle twill” describe twill fabrics with
a sparkling appearance, and Applicant admits that its “appliqués are not made of
twill fabric, nor are the clothing items to which they are applied” and that its “services
involve the application of appliques to clothing items made of simple cotton knits or
cotton blends, not twill,” May 12, 2016 Response to Office Action at 1, we find that
“sparkle twill” describes an aspect of Applicant’s services that they could plausibly
have (namely, that they involve the use of twill fabrics with a sparkling appearance),
but in fact do not.16 Applicant’s proposed mark is thus misdescriptive of the identified
services.

release “Introduc[ing] Sparkle Twill™ to All College Stores,” which also mentioned the
“distinctive look of Sparkle Twill™” and “gear in the Sparkle Twill™ category.” May 12, 2016
Response to Office Action at 10. The record does not show the extent and duration of exposure
of these introductory materials to consumers.
15 Applicant also claims that the uses of “sparkle twill” made of record by the Examining
Attorney in the June 3, 2016 Office Action “are merely coined product names [used] by the
various marketers,” 8 TTABVUE 10, but as shown above, these uses describe fabrics whether
or not they were “coined” by their users.
16 Applicant relies heavily on In re Cord Crafts Inc., 11 USPQ2d 1157 (TTAB 1989), in which
the Board reversed a misdescriptiveness refusal to register the mark SENSATIONAL SILKS
for artificial flowers that were not made of silk fabric because the evidence in that case
showed that “silk flowers” was a generic term for all artificial flowers, regardless of fabric. 8
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II. Likelihood of Consumer Belief That the Misdescription
Actually Describes the Services
“The Board has applied the reasonably prudent consumer test in assessing
whether a proposed mark determined to be misdescriptive involves a
misrepresentation consumers would be likely to believe.” Hinton, 116 USPQ2d at
1052. We may determine whether purchasers of Applicant’s services are likely to
believe the misdescription by an analysis of the record evidence showing third-party
uses of the term “sparkle twill” in connection with apparel. In re Budge Mfg. Co., 857
F.2d 773, 8 USPQ2d 1259, 1261 (Fed. Cir. 1988) (Section 2(a) case);17 E5, 103 USPQ2d
at 1581-83 (same).
The Examining Attorney argues that the record shows “the wording ‘sparkle twill’
used in accordance with its basic meaning to refer to twill fabric with a sparkling
appearance” and that because “it is widely used in this manner by third parties,
reasonably prudent consumers are likely to believe the misrepresentation in this
case.” 10 TTABVUE 8.18 She further argues that “there is no evidence to indicate that
consumers of embroidery or related services are knowledgeable about applique,
embroidery, or any of the other services in connection with which ‘sparkle twill’” is

TTABVUE 9-10, 12. The case is inapposite because there is no comparable evidence in the
record here that “sparkle twill” has any meaning other than a twill fabric with a sparkling
appearance.
17 The first two elements of the three-part test for deceptiveness under Section 2(a) of the
Trademark Act, 15 U.S.C. § 1052(a), set forth in Budge are identical to the elements of the
test for misdescriptiveness.
18 The Examining Attorney also provided evidence that twill is a preferred fabric for
embroidery and is used in full-back embroidery and appliqué. May 5, 2015 Office Action at
15, 19-20.
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used” and that “it is highly likely that consumers will believe the misrepresentation.”
10 TTABVUE 8.
Applicant argues in its main brief that its “consumers are those seeking appliqué
products and services on Applicant’s website,”19 that “a reasonable consumer seeking
appliqué products will be aware of the term ‘tackle twill’ and understand that
appliqué products referencing ‘twill’ are not necessarily made of twill patterned
textile,” and that “the reasonable consumer of appliqué products is much more likely
to associate SPARKLE TWILL with tackle twill appliqué products than with, for
example, a polyester twill-weave suit.” 8 TTABVUE 12. In its reply brief, Applicant
argues that “reasonably prudent consumers of embroidery and appliqué services will
be familiar with the term tackle twill, and will understand that ‘twill’ as used with
reference to these services refers to the process, not necessarily a specific type of
fabric weave,”20 and that the “majority of the references to “sparkle twill” on the
Internet, for example, are with respect to apparel and accessories generally, not in
reference to appliqué products or services.” 11 TTABVUE 8.

19 The relevant consumers are not limited to visitors to Applicant’s website. Applicant’s
identification of services is not limited to services provided through the Internet, and thus
must be deemed to include “customized embroidery and imprinting of names and logos on
goods and apparel to the order or specification of others” services and “manufacture of apparel
to the order or specification of others” services rendered through all normal channels of trade
to all normal classes of customers for such services. See, e.g., Thor Tech Inc., 90 USPQ2d
1634, 1639 (TTAB 2009).
20 The Examining Attorney correctly notes that two of the websites in the record that discuss
the tackle twill process specifically state that twill fabric is used in that process. May 5, 2015
Office Action at 13-14. The explanation of “tackle twill lettering” on the website at ask.com
also states that “[t]ackle twill lettering refers to a sort of polyester twill that manufacturers
cut and then sew to a garment.” May 5, 2015 Office Action at 2.
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“Applicant does not deny that twill is a type of fabric weave that can be used in
appliqué; in addition, twill can have sparkly properties (or glittery or matte),” 11
TTABVUE 3, and the dictionary definitions of “sparkle” and “twill,” and the record
evidence of use of “sparkle twill” to identify twill fabrics with a sparkling appearance,
show that “sparkle twill” fabric is used in connection with embroidery services and in
the manufacture of custom apparel. We therefore find that the Examining Attorney
established a prima facie case that consumers of the services of “customized
embroidery and imprinting of names and logos on goods and apparel to the order or
specification of others” and “manufacture of apparel to the order or specification of
others” are likely to believe the misdescription that Applicant’s services involve the
use of twill fabric with a sparkling appearance.
Applicant did not rebut this showing. Applicant’s claim of purchaser
sophistication, 8 TTABVUE 13, is unsupported by either the case upon which it
primarily relies, In re Lyphomed Inc., 1 USPQ2d 1430 (TTAB 1986), 8 TTABVUE 13,
or the record. In Lyphomed, “the only prospective purchasers for the product were
knowledgeable doctors and pharmacists who, in view of the medicinal use of the
product, would not believe” the misrepresentation claimed by the examining
attorney. 8 TTABVUE 13. The record here shows that the relevant purchasing public
consists of ordinary consumers who want to express affinity with schools or
organizations, including cheerleaders of various ages, teenagers, and junior high
school and elementary school students. 4 TTABVUE 25 (Hartvigson Decl. ¶ 4). There
is nothing in the record to suggest that these ordinary consumers, including children
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who may direct purchases of custom-made apparel by their parents or other
responsible adults,21 have the level of understanding of the appliqué process that
Applicant claims. Moreover, as discussed above, Applicant’s identification of services
is not limited to embroidery (appliqué) services, but includes “imprinting of names
and logos on goods and apparel to the order or specification of others” and
“manufacture of apparel to the order or specification of others,” both of which services
encompass processes other than embroidery. We agree with the Examining Attorney
that “there is simply no basis to conclude that consumers will use anything other than
the basic meaning of the words ‘sparkle’ and ‘twill’ in reaching a conclusion as to the
meaning of the wording ‘sparkle twill,’” 10 TTABVUE 9, and we find that Applicant
did not rebut the Examining Attorney’s showing that consumers of Applicant’s
services are likely to believe the misdescription that the services involve the use of
twill fabric with a sparking appearance.
Decision: The refusal to register is affirmed.

21 The fact that children may drive purchases of affinity apparel by adults is reflected in the
statements in the record that “my cheerleaders are wanting the sparkle twill and the polka
dot twill,” which they saw “in one of their cheer catalogs . . . .” May 5, 2015 Office Action at
6.