Tom Miranda Outdoors Inc.

Trademark Trial and Appeal Board

Jan 30, 2012

No. 77704628 (T.T.A.B. Jan. 30, 2012)

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.

Mailed: January 30, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Tom Miranda Outdoors Inc.
________

Serial No. 77704628
_______

Gregory Golla of Merchant & Gould PC for Tom Miranda
Outdoors Inc.

Verna B. Ririe, Trademark Examining Attorney, Law Office
104 (Chris Doninger, Managing Attorney).
_______

Before Bucher, Cataldo and Wolfson,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Tom Miranda Outdoors Inc. has applied to register on
the Principal Register the mark DOMINANT BUCKS in standard
characters for
DVDs, videotapes, audiotapes, downloadable video
and audio files all in the field of hunting;
Archery equipment, namely, telescopic bow sights;
Hunting binoculars,

in International Class 9;
Hunting and archery equipment, namely quivers;
Archery and hunting bows; Archery and hunting arm
guards; Archery and hunting arrow fletching
devices; Archery and hunting arrow points;
Ser. No. 77704628
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Archery and hunting arrows; Archery and hunting
bow cases; Archery and hunting bow strings;
Archery and hunting non-telescopic bow sights and
open bow sights; Archery and hunting targets;
Camouflage netting used in hunting; Hunting
blinds; Hunting decoy bags; Hunting stands;
Hunting game calls; Tree stands for hunting;
hunting decoys; Archery broadheads,

in International Class 28; and
Entertainment services, namely, a series in the
field of hunting provided through satellite
television, television broadcast, cable
television; Providing information in the field of
hunting and fishing via the Internet,

in International Class 41.1
The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act on the ground
that applicant’s mark is merely descriptive of a quality or
feature of applicant’s goods and services. When the
refusal was made final as to
DVDs, videotapes, audiotapes, downloadable video
and audio files all in the field of hunting,

in Class 9 and all of the services recited above in Class
41, applicant appealed. Applicant and the examining
attorney submitted briefs on the merits of the refusal to
register.
Issue on Appeal

1 Application Serial No. 77704628 was filed on April 1, 2009,
based on applicant’s assertion of a bona fide intent to use the
mark in commerce in connection with the recited goods and
services.

Ser. No. 77704628
3
As noted above, the issue on appeal in this case is
whether applicant’s mark, DOMINANT BUCKS, merely describes
a function, feature or characteristic of the goods
specified above in Class 9 and the services in Class 41.
In coming to our determination on this issue, we have
considered all of the arguments and evidence presented by
applicant and the examining attorney, including any
arguments and evidence not specifically discussed herein.
The examining attorney maintains that the mark merely
describes a feature or quality of the goods and services by
describing the subject matter thereof, namely, large,
mature male deer known as “dominant bucks.” In support of
the refusal, the examining attorney has made of record
articles and advertisements retrieved from Internet
webpages. The following examples are illustrative
(emphasis added):
T.R.’s Tips: What Call For Which Deer
Determining what call to use when you are hunting
White-tailed Deer is not a matter of which rut
phase you are hunting, but which sex and age
class of deer you want to attract. …
There are basically four different techniques for
calling deer that can be used anytime during the
rut. The fourth technique is not so effective
during the Rest Phase and Post Rut because the
bucks are exhausted, not as aggressive, and not
as interested in breeding.
1. Distress Call or Fawn Bawl for does and young
bucks.
2. Social Grunt or Low Grunt for any deer.
3. Social/Low/Tending Grunt for all bucks.
Ser. No. 77704628
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4. Social/Low/Tending grunt or Grunt Snort for
dominant bucks. …
(www.outdoorscentral.com);

Primos Big Buck Bag
Rattle in those dominant bucks during the rut.
Sounds like small bucks sparring or a dominant
buck fight. The compact design provides easy
carrying and one-handed operation while the
“Power-Tines™” and Camonet™” bag increases volume
and flexibility. This call is 100% waterproof.
(www.mysimon.com);

Whitetail Rut Phase Hunting Tactics
By T.R. Michels, Trinity Mountain Outdoors
As an outfitter, guide, and game researcher I’m
always trying to figure out how the activities of
game animals change throughout the hunting
season; if and how different ages and sexes of
animals act; and the best hunting techniques to
use during the different activity periods of the
animals. …
During my studies I found that it was difficult
to distinguish when these phases start and end,
because their activities overlap, and because
dominant and subordinate bucks are on different
time schedules. I also learned that some often-
talked about hunting tactics should be used only
on older/dominant bucks, because they may scare
off younger/subordinate bucks. …
However, subordinate bucks may create fresh rubs
and scrapes because the dominant bucks are more
interested in does than making rubs and scrapes
or exerting dominance over the subordinates. …
I seldom see dominant bucks outside their core
areas during this phase. …
(www.whitetailfanatic.net);

Will Dominant Bucks Dominate the Breeding?
… These are all valid questions and ones I am
sure most hunters have heard or thought about at
some point. The premise behind these questions
is the belief that a small number of dominant
Ser. No. 77704628
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bucks breed the majority of does and thus sire
the majority of fawns. …
Dominant bucks don’t monopolize the breeding, and
they don’t even sire all of the fawns from each
doe they breed. …
(www.qdma.com);

Whitetails: Using the Right Scent
… The forehead glands are located between the top
of the eyes and the antlers, and are most active
during the rut. The activity of these glands has
been positively correlated with age and probable
social status, they are most active in older,
dominant bucks. … The oil is transferred to
rubbed trees and the overhanging branch at
scrapes when the head of the buck comes in
contact with the tree, and is used by dominant
bucks to advertise their presence to both sexes.
…
(www.worldrecordwhitetaildeer.com); and

… Most dominant bucks are larger, older males,
the ones with the best genes. In herds with
fairly balanced buck:doe ratios, dominant bucks
do most of the mating. This is nature’s way of
ensuring that future generations acquire the
strongest genes.
(www.huntingnet.com).

It is well-settled that a term is considered to be
merely descriptive of goods and/or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality, feature or
characteristic thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods and/or services. See Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052. See also In re Abcor
Ser. No. 77704628
6
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
It is not necessary that a term describe all of the
properties or functions of the goods and/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 feature about them. Moreover,
whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods and/or services
for which registration is sought. See In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). Thus, “[w]hether consumers
could guess what the product is from consideration of the
mark alone is not the test.” In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985).
In the instant case, the evidence made of record by
the examining attorney supports a finding that, as applied
to applicant’s involved goods and services, the term
DOMINANT BUCKS would immediately describe, without
conjecture or speculation, a significant characteristic or
feature of such goods and services, namely, that they
feature information about older, larger male deer known as
“dominant bucks.” The Internet articles and advertisements
submitted by the examining attorney establish that
“dominant bucks” are prized by deer hunters who study their
habits and purchase a variety of goods including scents,
Ser. No. 77704628
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calls, and informational materials to increase their
chances of successfully hunting them.
Applicant’s DOMINANT BUCKS mark merely describes the
subject matter of its “videotapes, audiotapes, downloadable
video and audio files all in the field of hunting,” namely,
the habits of older male deer known as “dominant bucks” and
techniques for hunting them. Similarly, DOMINANT BUCKS
merely describes the subject matter of applicant’s
“entertainment services, namely, a series in the field of
hunting provided through satellite television, television
broadcast, cable television; providing information in the
field of hunting and fishing via the Internet,” namely, the
habits of “dominant bucks” and techniques for hunting them.
The Internet materials made of record by the examining
attorney further establish that DOMINANT BUCKS is used not
as a trademark, but as a merely descriptive term as applied
to these older male deer. Material obtained from the
Internet is acceptable in ex parte proceedings as evidence
of potential public exposure to a term. See In re Fitch
IBCA, Inc., 64 USPQ2d 1058 (TTAB 2002).
The term DOMINANT BUCKS, therefore, means older,
larger male deer. Applicant’s goods and services provide
information on the subject of such deer. Accordingly, we
find that the term DOMINANT BUCKS, when used in connection
Ser. No. 77704628
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with applicant’s above-listed goods in Class 9 and services
in Class 41, immediately informs the purchaser, without any
need for a multistep reasoning process, that such goods and
services feature information that may be used by hunters to
study and hunt “dominant bucks.” As a result, we find that
DOMINANT BUCKS merely describes a feature or characteristic
of the involved goods and services.
We are not persuaded by applicant’s argument that the
components of the Applicant’s mark, “DOMINANT”
and “BUCKS,” are broad, general terms that would
be perceived by consumers to mean a multitude of
things and do not immediately convey applicant’s
goods and services related to entertainment in
the nature of video and television and hunting
equipment.2

Applicant appears to argue that because the terms
comprising its mark may have a number of meanings in a
number of contexts, such terms are not merely descriptive
when combined into DOMINANT BUCKS. However, the evidence
made of record by the examining attorney demonstrates that,
regardless of any other meanings DOMINANT and BUCKS may
individually possess, the mark DOMINANT BUCKS merely
describes a central characteristic of applicant’s goods and
services. That a term may have other meanings in different
contexts is not controlling. In re Bright-Crest, Ltd., 204

2 Applicant’s brief, unnumbered page 3.

Ser. No. 77704628
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USPQ at 593.
In view of the foregoing, we find that applicant’s
mark is merely descriptive as contemplated by Section
2(e)(1) of the Act.
Decision: The refusal to register is affirmed as to
the goods and services subject to the refusal to register,
namely:
DVDs, videotapes, audiotapes, downloadable video
and audio files all in the field of hunting;

in International Class 9; and
Entertainment services, namely, a series in the
field of hunting provided through satellite
television, television broadcast, cable
television; Providing information in the field of
hunting and fishing via the Internet

in International Class 41.

The application will be forwarded in due course for
publication as to the goods not subject to the refusal to
register, namely:
Archery equipment, namely, telescopic bow sights;
Hunting binoculars

in International Class 9; and
Hunting and archery equipment, namely quivers;
Archery and hunting bows; Archery and hunting arm
guards; Archery and hunting arrow fletching
devices; Archery and hunting arrow points;
Archery and hunting arrows; Archery and hunting
bow cases; Archery and hunting bow strings;
Archery and hunting non-telescopic bow sights and
open bow sights; Archery and hunting targets;
Camouflage netting used in hunting; Hunting
Ser. No. 77704628
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blinds; Hunting decoy bags; Hunting stands;
Hunting game calls; Tree stands for hunting;
hunting decoys; Archery broadheads

in International Class 28.