Superflex, Inc.

Trademark Trial and Appeal Board

Feb 6, 2019

No. 87300864 (T.T.A.B. Feb. 6, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 6, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Superflex, Inc.
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Serial No. 87300864
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Andrew J. Gray IV of Morgan Lewis & Bockius LLP for Superflex, Inc.

Jason R. Nehmer, Examining Attorney, Law Office 121, Kevin Mittler, Managing
Attorney.
_____

Before Cataldo, Wellington and Hightower,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Superflex, Inc. (“Applicant”) seeks registration on the Principal Register of
POWERED CLOTHING (in standard characters) as a mark to identify the following
goods and services, as amended:
Electromechanical system comprising computer software and hardware
and an accompanying mobile application, interface and back-end
component for data collection regarding use, movements and body
system records to provide physical movement assistance and support in
connection with an individual’s activities of daily living, as well as to
improve strength, mobility, endurance, stability and other motor and
biomechanical functions; computer hardware and software for use in
connection with a clothing system to provide physical movement
assistance and support in connection with an individual’s activities of
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daily living, as well as to improve strength, mobility, endurance,
stability and other motor and biomechanical functions; downloadable
computer software for use in managing the foregoing system comprising
a power assist suit or garment that is made with and controlled by
apparel, software and hardware components; downloadable computer
software for use in managing a clothing system to provide physical
movement assistance and support in connection with an individual’s
activities of daily living, as well as to improve strength, mobility,
endurance, stability and other motor and biomechanical functions,
International Class 9;

Medical devices, namely, electromedical equipment and apparatus in
the nature of a power assist suit and garment that is made with and
controlled by apparel, software and hardware components to support
and assist individuals with muscular dystrophy and similar conditions,
International Class 10;

Clothing in the nature of base layer clothing, namely, one piece body
suits, unitards and related garments, namely, cycling outfits, shorts,
jerseys, wrestling unitards and one piece bathing suits for use in
connection with a system to provide support for an individual’s activities
of daily living, as well as to improve strength, mobility, endurance,
stability and other motor and biomechanical functions,
International Class 25; and

Platform as a service (PAAS) featuring computer software platforms for
use in connection with a clothing system to provide physical movement
assistance and support in connection with an individual’s activities of
daily living, as well as to improve strength, mobility, endurance,
stability and other motor and biomechanical functions; providing a
website featuring information and technology in connection with
hardware and software for physical movement assistance and support
concerning an individual’s activities of daily living, as well as to improve
strength, mobility, endurance, stability and other motor and
biomechanical functions,
International Class 42.1

1 Application Serial No. 87300864 was filed on January 13, 2017, based upon Applicant’s
assertion of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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Applicant offers the following explanation of its goods, including what it calls
“exosuits:”
Applicant’s technology is ahead of its time with few to zero competitors.
Applicant’s flagship product is essentially an exoskeleton suit that is
made from flexible material that has hardware embedded within. These
exosuits employ the use of lightweight actuators and move in
conjunction with the muscles of the body to help stabilize the body’s core
while performing everyday tasks, such as standing up, sitting down,
standing still, etc. The suit is aware of when the wearer is initiating a
movement, such as sitting down, and it thus supports the movement like
a helping hand, whatever the movement may be.2

The Trademark Examining Attorney refused registration of Applicant’s proposed
mark under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the
ground that it merely describes a feature of the identified goods and services.
When the refusal was made final, Applicant appealed and submitted a request for
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed and briefs were filed.
I. Mere Descriptiveness under Trademark Act Section 2(e)(1).
In the absence of acquired distinctiveness, Section 2(e)(1) of the Trademark Act
prohibits registration on the Principal Register of “a mark which, (1) when used on
or in connection with the goods [or services] of the applicant is merely descriptive . . .
of them.” 15 U.S.C. § 1052(e)(1). A term is “merely descriptive” within the meaning
of Section 2(e)(1) if it “immediately conveys knowledge of a quality, feature, function,
or characteristic of the goods or services with which it is used.” In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)

2 Applicant’s brief, 9 TTABVUE 7-8.
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(quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); see
also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987). “On the
other hand, if one must exercise mature thought or follow a multi-stage reasoning
process in order to determine what product or service characteristics the term
indicates, the term is suggestive rather than merely descriptive.” In re Tennis in the
Round, Inc., 199 USPQ 496, 498 (TTAB 1978); see also In re Shutts, 217 USPQ 363,
364-65 (TTAB 1983); In re Universal Water Systems, Inc., 209 USPQ 165, 166 (TTAB
1980).
A term need only describe a single feature or attribute of the identified goods or
services to be descriptive. In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57
USPQ2d 1807, 1812 (Fed. Cir. 2001). 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. Descriptiveness of a term must be evaluated
“in relation to the particular goods [or services] for which registration is sought, the
context in which it is being used, 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 or intended use.” In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219
(quoting In re Bayer AG, 82 USPQ2d at 1831). “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 and services are will
understand the mark to convey information about them.” DuoProSS Meditech Corp.
Serial No. 87300864
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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)).
When two or more merely descriptive terms are combined, as is the case with the
mark at issue herein, the determination of whether the composite mark also has a
merely descriptive significance turns on whether the combination of terms evokes a
new and unique commercial impression. If each component retains its merely
descriptive significance in relation to the goods or services, the combination results
in a composite that is itself merely descriptive. See, e.g., In re Oppedahl & Larson
LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372, 1374 (Fed. Cir. 2004) (PATENTS.COM
merely descriptive of computer software for managing a database of records that
could include patents and for tracking the status of the records by means of the
Internet). See also In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1823 (TTAB 2012);
In re King Koil Licensing Co., 79 USPQ2d 1048, 1052 (TTAB 2006).
1. Evidence of Record
The components of Applicant’s proposed mark are defined as follows:
The word “power(ed)” is defined, inter alia, as “ability to do or act;
capable of doing or accomplishing something; mechanical energy as
distinguished from hand labor: a loom driven by power; to give power to;
make powerful; operated by a procedure in which manual effort is
supplemented or replaced by hydraulic, mechanical, or electric means:
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power brakes;”3 “supply (a device) with mechanical or electrical energy:
‘the car is powered by a fuel-injected 3.0 liter engine’.”4

The term “clothing” is defined, inter alia, as “garments collectively;
clothes; raiment; apparel; a covering.”5

The Examining Attorney introduced into the record definitions of the following terms
from Applicant’s identification of goods and services:
The term “electromedical” is defined as “of or relating to the medical use
of electricity; especially designating electrical equipment used for
medical purpose.”6

The term “electromechanical” is defines as “relating to or denoting a
mechanical device which is electrically powered.”7

The Examining Attorney further introduced printouts of pages from third-party
commercial and informational websites.8 The first, excerpted as Figure 1 below,
discusses Applicant and its identified goods and services:
Figure 1:

3 Applicant’s April 20, 2018 Response to first Office Action at .pdf 18-20, definition from
Random House Webster’s College Dictionary (1992). Citations to the application record refer
to the downloadable .pdf version of the United States Patent and Trademark Office (USPTO)
Trademark Status & Document Retrieval (TSDR) system. Citations to the briefs refer to the
Board’s TTABVUE docket system.
4 October 20, 2017 final Office Action at .pdf 8-12, definition from
en.oxforddictionaries.com/definition/us/power.
5 We hereby take judicial notice of this definition from Dictionary.com Unabridged, based on
the Random House Unabridged Dictionary (2019). The Board may take judicial notice of
dictionary definitions, including online dictionaries which exist in printed format. See, e.g.,
In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014); see also University of Notre
Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
6 October 20, 2017 final Office Action at .pdf 13, definition from
en.oxforddictionaries.com/definition/electromedical.
7 Id. at 17, definition from en.oxforddictionaries.com/definition/electromechanical.
8 Id. at 32-37.
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Serial No. 87300864
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(techcrunch.com).
The Examining Attorney also introduced into the record webpages from third-
party commercial and informational websites featuring clothing with electrical or
electronic components with various functions.9 These articles are excerpted below:
Development of pneumatic power assist wear to reduce physical burden
Power Assist Wear
A. Concept of Developed Power Assist Wear
Intelligent corset can support a rollover movement without hard
materials. This device is driven with the pneumatic soft actuator the
same as developed device.
(Ieeexplor.ieee.org);

9 Examining Attorney’s May 22, 2018 Office Action denying Applicant’s Request for
Reconsideration at .pdf 4-40.
Serial No. 87300864
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‘Smart’ clothes generate electricity
New fabric harvests energy from its wearer.
(Sciencenewsforstudents.org);

Computerized Fabric Could Transform Any Piece of Clothing Into a Fitness
Tracker
The flexible fabric, developed by Harvard researchers, might also one day
assist with movement, acting as a soft exoskeleton for wearers.
(seeker.com);

Wearable solar powered clothing coming in the early 2020s
A group of Japanese researchers has developed a super-thin organic solar cell
that can be heat-printed onto clothes just like a T-shirt design.
(Nextbigfuture.com);

Winter Olympics – Ralph Lauren battery powered clothing
The Winter Olympics Opening Ceremony started in all its multi-cultural and
colourful glory on Friday, with team USA wearing their innovative Ralph
Lauren Heat Technology uniform, including heated coats!
(britishgas.co.uk);10 and

Battery-powered clothes
Mountain Hardwear men’s Refugium and women’s Radiance jacket
$240; power system $145; optional tech connector kit, $50. Available at
Erchwon Mountain Outfitters in Chicago and several suburbs, and in limited
sizes and colors at mountainhardgear.com and backcountry.com. …
With battery-operated clothing.
(Chicagotribune.com).

In support of its arguments in favor of registration, Applicant has submitted
copies of the following five third-party registrations of POWER-formative marks,
issued on the Principal Register in standard characters unless otherwise noted:11

10 This website is located in the United Kingdom. Nonetheless, it appears to be accessible in
the United States. The Federal Circuit has explained that “[i]nformation originating on
foreign websites or in foreign news publications that are accessible to the United States
public may be relevant to discern United States consumer impression of a proposed mark.”
In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007). Thus,
we have considered the article for such probative value as it may possess.
11 October 4, 2017 Response to first Office Action at .pdf 13-24. The additional, expired
registration introduced into the record by Applicant “is evidence only of the fact that it
Serial No. 87300864
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POWERED BY SALTWATER, identifying “stickers” in Class 16 and “t-shirts;
tank tops” in Class 25 (Reg. No. 5206396);

, identifying “athletic apparel, namely, shirts, pants, jackets,
footwear, hats and caps, athletic uniforms” in Class 25 (Reg. No. 3928370);

, identifying “headwear, namely, headbands, hats
and caps; accessories, namely, gloves, mittens, and ear muffs” in Class 25 (Reg.
No. 4645581);

SOLAR POWERED, identifying “hats; hooded sweatshirts; jackets; pants;
short-sleeved or long-sleeved t-shirts; shorts; socks; sweaters; sweatshirts; t-
shirts; tank tops” in Class 25 (Reg. No. 4418342); and

GREAT LAKES POWERED, identifying “vinyl decals; bumper stickers;
stickers; pens; pencils; stationery” in Class 16; “clothing, namely, dresses;
aprons; sleeve garters; t-shirts; golf shirts; work shirts; baseball shirts; woven
shirts; shirts; tops; tank tops; sweatshirts; sweatpants; jogging suits; pants;
skirts; sleep pants; pajamas; robes; shorts; jeans; jackets; coats; belts; neckties;
neckwear; scarves; suspenders; leather jackets; rain suits; vests; parkas;
gloves; footwear; headwear; caps; hats; cowboy hats; headbands; straw hats;
visors; bandana” in Class 25 (Reg. No. 4962702).

Applicant “acknowledges that ‘Clothing’ is descriptive and would agree to a
disclaimer of that term, but ‘Powered’ is not generally treated as descriptive in
context as evidenced by”12 these third-party registrations issued in Class 25 on the
Principal Register without a disclaimer of “Powered.”

previously existed.” UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1872 n.2 (TTAB
2011). Any benefits conferred by the registration, including the evidentiary presumptions
afforded by Section 7(b) of the Trademark Act, were lost when the registration expired. See,
e.g., Anderson, Clayton & Co. v. Krier, 478 F.2d 1246, 178 USPQ 46 (CCPA 1973); Time
Warner Entertainment Co. v. Jones, 65 USPQ2d 1650 (TTAB 2002).

12 Applicant’s October 4, 2017 Response to first Office Action at .pdf 9.
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2. Discussion
Based upon the above definitions, when applied to Applicant’s goods and services,
each component of Applicant’s POWERED CLOTHING mark retains its merely
descriptive significance, and the mark in its entirety means and directly engenders
garments that are operated by mechanical or electrical means or supplied with energy
to supplement manual effort. This factual finding is corroborated by the article from
techcrunch.com, excerpted above, using the term “powered clothing” in a descriptive
manner to discuss Applicant and its goods and services at issue herein.13 As stated in
the article, Applicant “aims to establish a new product category with what it calls
‘powered clothing.’”14 “Powered clothing, or ‘intelligent wearable strength’ as the
company also calls it, would be custom garments with flexible electric motors built in
that help the wearer with everyday tasks like simply standing up and walking
around.”15 Applicant’s chief officer “compared it to an electric bike: power is there
when you need it, but otherwise it works just like the ordinary version. The clothing
itself isn’t going to be bulky or mechanical-looking, either, as the early prototypes
were.”16 The additional evidence of record, discussed above, indicates that third
parties design and produce clothing items that provide movement assistance to the
wearer, generate heat, track fitness, and generate electricity for use by other devices.
Based upon the evidence of record, we make the following findings.

13 October 20, 2017 final Office Action at .pdf 32-37.
14 Id. at .pdf 32.
15 Id. at .pdf 33.
16 Id. at .pdf 34.
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As applied to the goods identified in Class 9, POWERED CLOTHING merely
describes an aspect or feature of Applicant’s electromechanical, or electrically
powered, computer hardware and software used to manage a clothing system
consisting of a power assist garment to provide physical movement assistance and
support. Specifically, POWERED CLOTHING merely describes computer hardware
and software that enables the user to manage and operate clothing in the nature of a
power assist suit that improves the wearer’s strength, mobility, endurance, stability
and other functions. Simply put, POWERED CLOTHING describes computer
hardware and software used to control garments providing electrical or mechanical
energy to assist the wearer in everyday tasks.
With regard to the goods recited in Class 10, POWERED CLOTHING merely
describes electrically powered garments incorporating and controlled by computer
hardware and software components to provide assistance to individuals with
muscular dystrophy or other conditions that affect movement. “‘It isn’t an exercise
device, or an industrial device. It’s a wellness device, a personal device,’ said
[Applicant’s officer.]”17 Applicant’s goods allows users experiencing medical
conditions “to ramp up power manually, if they knew they’d have trouble carrying a
load of laundry, for instance, but the suit can also automatically detect actions…and
give a boost.”18 In other words, POWERED CLOTHING describes a feature of
Applicant’s goods in Class 10, namely, that they provide support in the form of

17 Id. at .pdf 33.
18 Id.
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additional strength for wearers with health-related issues limiting their mobility.
Thus, POWERED CLOTHING merely describes electromedical power assist suits
and garments controlled by computer components to provide movement assistance to
individuals experiencing medical conditions such as muscular dystrophy.
Similarly, with regard to the goods identified in Class 25, POWERED CLOTHING
merely describes garments used in connection with computer hardware and software
that provide energy to support and improve the wearer’s strength, mobility,
endurance, stability and other functions. The evidence of record indicates that
Applicant’s clothing items are designed to work with computer hardware and
software to provide extra strength to wearers experiencing mobility or stability
issues. POWERED CLOTHING thus describes a central function or feature of
Applicant’s clothing, namely, that it incorporates electronic systems to support and
improve an individual’s ability to perform activities of daily living.
Finally, with regard to the Class 42 services, POWERED CLOTHING merely
describes cloud computing services used in connection with garments that provide
additional strength and other functions to assist wearers in carrying out daily tasks.
As discussed above, Applicant’s goods integrate garments with electronics to provide,
inter alia, strength and stability to the wearer who may be experiencing medical or
age-related conditions that limit their ability to carry out daily activities. Applicant’s
services provide computer software to assist in the operation of those electronically
integrated garments to improve the wearer’s capacity to carry out various tasks.
Serial No. 87300864
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We thus find that POWERED CLOTHING merely describes a function, feature or
characteristic of at least some of the goods and services identified in each class in the
involved application. It is well settled that where a mark is merely descriptive of one
or more items identified in the description of goods or services but may be suggestive
or even arbitrary as applied to other items or services, registration is properly refused
if the mark sought to be registered is descriptive of any of the goods or services.
Moreover, a mark need not be merely descriptive of all recited goods or services in an
application. In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (stating
that a descriptiveness refusal is proper, “if the mark is descriptive of any of the goods
[or services] for which registration is sought”) (quoting In re Stereotaxis Inc., 429 F.3d
1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005)); In re Canron, Inc., 219 USPQ 820, 821
(TTAB 1983); Electro-Coatings, Inc. v. Precision National Corp., 204 USPQ 410, 420
(TTAB 1979); In re Brain Research Foundation, 171 USPQ 825, 826 (TTAB 1971).
Applicant argues that its proposed mark is suggestive, as opposed to merely
descriptive. “The average purchaser of Applicant’s goods is likely an ordinary person
who will not be quick to associate a clothing apparel product with technology that can
support and assist their everyday movements.”19 However, evidence of record
establishes that consumers encounter clothing enhanced with electronics to provide
a variety of functions, including heat, movement assistance and generation of
electricity. Applicant has not introduced evidence that consumers will view

19 9 TTABVUE 12.
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POWERED CLOTHING as possessing any significance other than describing goods
and services that provide electrical power to clothing.
Applicant further argues:
POWERED CLOTHING does not immediately describe what
Applicant’s products accomplish nor anything of substance about the
products. Applicant’s Mark is more similar to SNO-RAKE (snow
removal hand tool) in In re Shutts, where the idea of raking snow was
too strange to be considered merely descriptive despite the Examining
Attorney’s protests that the mark is a description of the product’s
function. 217 USPQ at 363-64. Similarly, the idea that a person can have
clothes that provide strengthening assistance is too foreign to the
average purchaser and does not describe Applicant’s goods because the
goods do not imbue the wearer with actual “power”—Applicant’s goods
can only “provide physical movement assistance and support.”20

To the extent Applicant argues that its POWERED CLOTHING mark presents an
incongruity because the idea of clothing being powered is “too strange” to merely
describe its goods and services, we agree that a mark presenting an incongruity may
be registrable as not merely descriptive. See, e.g., In re Oppedahl & Larson LLP, 71
USPQ2d at 1372; In re Tennis in the Round Inc., 199 USPQ at 498; In re Shutts, 217
USPQ at 364-5; In re Vienna Sausage Mfg. Co., 156 USPQ 155, 156 (TTAB 1967); In
re John H. Breck, Inc., 150 USPQ 397, 398 (TTAB 1966). However, Applicant has not
explained the nature of the asserted incongruity of POWERED CLOTHING as
applied to its goods and services beyond its mere assertion that the term is too foreign
for the average purchaser to make the necessary association. As discussed above,
consumers encounter clothing incorporating electronics to provide heat, movement
assistance and generation of electricity. This evidence further establishes that

20 9 TTABVUE 11.
Serial No. 87300864
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POWERED CLOTHING merely describes goods and services related to clothing
incorporating flexible electric motors to provide additional strength and support to
wearers. As such, POWERED CLOTHING is not such a strange term that consumers
would be unable or unlikely to understand that it describes Applicant’s goods and
services. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1516 (TTAB 2016)
(“The two component words of the mark combine in a manner and order that would
be easily interpreted by persons familiar with the English language and the goods.
They would be immediately understood ….”); In re Petroglyph Games Inc., 91
USPQ2d 1332, 1341 (TTAB 2009) (“[B]ecause the combination of the terms does not
result in a composite that alters the meaning of either of the elements, refusal on the
ground of descriptiveness is appropriate.”).
Applicant also argues that while its goods require electricity, or electric power, to
operate, “this is not a significant feature or characteristic of Applicant’s goods.”21
POWERED CLOTHING employs the use of the adjective “powered” in
front of “clothing,” so Applicant’s Mark at the most only conveys to the
average purchaser that the exosuits themselves are the things being
“powered,” rather than conveying that the exosuits can provide “power”
to the wearer. And as discussed above, just describing exosuits as being
“powered” does not indicate a significant feature of the products because
it merely suggests the nature or class of the products and therefore
cannot be viewed as merely descriptive.22

Applicant cites to In re Hutchinson Tech., Inc., 852 F.2d 552, 7 USPQ2d 1490, 1492
(Fed. Cir. 1988), in further support of its position that the term “powered” in
POWERED CLOTHING “is a broad term that has myriad potential meanings and

21 9 TTABVUE 12.
22 9 TTABVUE 13.
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does not connote an immediate idea about the nature of the associated goods with
any degree of particularity.23
To the contrary, the evidence of record establishes that Applicant’s exosuits are
powered by electricity and also that they provide power to the wearer in the form of
additional strength, stability and other functions. Without electrical power,
Applicant’s goods and services would not be able to provide wearers with the
“intelligent wearable strength”24 Applicant promotes. Thus, POWERED CLOTHING
immediately describes this central aspect or feature of Applicant’s goods and services.
In addition, evidence of record establishes that Applicant’s goods and services provide
the wearers of its exosuits with additional power to supplement their own bodily
abilities to enhance strength and balance, among other functions. We are not
concerned that POWERED CLOTHING may have two descriptive meanings in
relation to the recited goods and services, namely, they are electrically powered and
provide additional power to the wearers of Applicant’s exosuits. A term that has
multiple meanings, all of which are merely descriptive of the goods or services,
remains merely descriptive within the meaning of Section 2(e)(1). See In re Carlson,
91 USPQ2d 1198, 1201 (TTAB 2009). Simply put, both meanings merely describe a
feature of Applicant’s goods and services.

23 9 TTABVUE 14.
24 October 20, 2017 final Office Action at .pdf 33.
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Applicant argues in addition that the term “powered” has numerous meanings
that are removed from any function or feature of its goods and services.25 However,
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. That a term may have other meanings in
different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ at 593.
Moreover, “[t]he 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 understand the mark to convey information
about them.” In re Tower Tech Inc., 64 USPQ2d at 1316-17. See also In re Patent &
Trademark Services Inc., 49 USPQ2d 1537 (TTAB 1998); In re Home Builders
Association of Greenville, 18 USPQ2d 1313 (TTAB 1990); In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985). The evidence of record establishes that
POWERED CLOTHING has at least one descriptive meaning – and more likely two
– in connection with the identified goods and services. The fact that the term
“powered” may possess additional meanings in other contexts does not diminish the
descriptive significance of the term in connection with the goods and services at issue
herein.
Applicant goes on to argue:

25 9 TTABVUE 13.
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POWERED CLOTHING has at least one suggestive meaning, even if
determined that the Mark is also descriptive in another sense. The use
of POWERED CLOTHING in conjunction with products that provide
assistance with everyday tasks readily brings to mind a feeling of
“empowerment” and “strength,” hence “powered.” This is true of
Applicant’s goods and services because not only do the products help
assist in one’s everyday life but the result on the user’s psyche is
“empowering” and “strengthening” because the products allow the user
to perform feats otherwise too difficult to complete.
The double entendre evoked by the mark POWERED CLOTHING is
similar to how a neck tie is often considered to be a “power tie” if the
color of the tie is red. The term “power” in “power tie” does not actually
refer to the tie being electrically powered, nor does it refer to the tie
providing strength or assistance in any way. The word “power” used in
conjunction with a piece of clothing most immediately evokes a sense of
internal strength rather than physical. The term “power” has at least
one readily identifiable non-descriptive alternative meaning, which
transforms POWERED CLOTHING into a double entendre.26

Based upon the evidence of record, POWERED CLOTHING connotes, on the one
hand, goods and services related to Applicant’s exosuits that are electrically powered
and, on the other hand, provide the wearers with power to supplement their own
physical abilities to enhance strength, stability and other functions. As discussed
above, both of these connotations merely describe a feature or characteristic of the
identified goods and services. There is no evidence of record to support a finding that
consumers will view POWERED CLOTHING as connoting empowerment. In the
absence of any evidence, we find insufficient support for Applicant’s rather
speculative arguments regarding the possible interpretations of its proposed mark.
As a result, we find that consumers will view POWERED CLOTHING as having two
connotations, both of which are merely descriptive. Cf. In re Colonial Stores Inc., 394

26 9 TTABVUE 17.
Serial No. 87300864
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F.2d 549, 157 USPQ 382 (CCPA 1968); In re Tea and Sympathy, Inc., 88 USPQ2d
1062 (TTAB 2008); In re Simmons Co., 189 USPQ 352 (TTAB 1976); In re Del. Punch
Co., 186 USPQ 63 (TTAB 1975).
Finally, Applicant argues that the third-party registrations for POWER-formative
marks excerpted above mitigate in favor of registration of its POWERED CLOTHING
mark.27 However, we note that none of the goods identified in these third-party
registrations are akin to Applicant’s goods or services, namely, exosuits and the
means to operate them, but rather include ordinary articles of clothing that do not
provide power to supplement the wearer’s physical functions or are themselves
electrically powered. As a result, the probative value of this evidence is quite limited.
Furthermore, as is often noted by the Board and the courts, each case must be
decided on its own merits. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001); see also In re Kent-Gamebore Corp., 59 USPQ2d 1373
(TTAB 2001); In re Wilson, 57 USPQ2d 1863 (TTAB 2001). While consistent
treatment of pending applications is a laudable goal, this tribunal is not bound by the
actions of Examining Attorneys with regard to other applications.
We also observe that there is no need to demonstrate that others have used the
mark at issue or that they need to use it, although such proof might be highly relevant
to an analysis under Section 2(e)(1). In re Fat Boys Water Sports LLC, 118 USPQ2d
at 1515. 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 mere descriptiveness set

27 October 4, 2017 Response to first Office Action at .pdf 13-24.
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forth in In re Gyulay, In re Chamber of Commerce, and DuoProSS. See KP Permanent
Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 122 (2004) (trademark law
does not countenance someone obtaining “a complete monopoly on use of a descriptive
term simply by grabbing it first”) (citation omitted); see also Clairol, Inc. v. Roux
Distrib. Co., 280 F.2d 863, 126 USPQ 397, 398 (CCPA 1960) (even novel ways of
referring to a product may nonetheless be merely descriptive); In re Phoseon Tech.
Inc., 103 USPQ2d at 1826.
II. Summary and Conclusion
Based on the definitions and website evidence of record, it is clear that when
Applicant’s proposed mark POWERED CLOTHING is viewed in its entirety in
connection with Applicant’s goods and services, consumers would perceive the mark
as merely describing a central feature or characteristic thereof, namely, that
Applicant’s goods and services provide electrically powered clothing to assist wearers
with tasks of everyday living or, alternatively, that its goods and services enable
clothing to provide additional power to wearers to help them with such tasks. In other
words, Applicant’s proposed mark lacks the type of suggestiveness or incongruous
meaning that might avoid mere descriptiveness. See generally In re Colonial Stores
Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (“unusual association or arrangement
in the applicant’s mark [SUGAR & SPICE] results in a unique and catchy expression
which does not, without some analysis and rearrangement of its components suggest
the contents of applicant’s goods”).
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Based upon all arguments and evidence of record, including any not specifically
discussed. We find that POWERED CLOTHING is merely descriptive of each class of
goods and services identified in Applicant’s application under Section 2(e)(1) of the
Trademark Act.28
Decision: The refusal to register Applicant’s proposed mark POWERED
CLOTHING is affirmed.

28 We note that our determination herein does not preclude Applicant from attempting to
show that POWERED CLOTHING has acquired distinctiveness as a mark for these goods
and services, or that POWERED CLOTHING is capable of registration on the Supplemental
Register, in a subsequent application.