T.S. Designs, Inc.

Trademark Trial and Appeal Board

Aug 11, 2010

No. 77251039re (T.T.A.B. Aug. 11, 2010)

Mailed:
August 11, 2010
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re T.S. Designs, Inc.
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Serial No. 77251039
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Request for Reconsideration
_______

Edward W. Rilee of MacCord Mason PLLC for T.S. Designs,
Inc.

Benjamin U. Okeke, Trademark Examining Attorney, Law
Office 112 (Angela B. Wilson, Managing Attorney).
_______

Before Bucher, Kuhlke and Walsh, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
On July 9, 2010, applicant filed a request for
reconsideration of the Board’s June 9, 2010 decision in
which we affirmed the Trademark Examining Attorney’s
refusal of registration on the ground that the term
Clothing Facts for goods identified as “long-sleeved
shirts; polo shirts; short-sleeved shirts; t-shirts,” as
it appears on the specimens of record functions as
informational matter and is not a source-identifying term,
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77251039
- 2 -
under Sections 1, 2 and 45 of the Trademark Act, 15 U.S.C.
§§ 1051-1052, 1127. With its request for reconsideration
applicant has asked the Board, in the alternative, to
reopen the appeal in order to remand the case to the
Trademark Examining Attorney for consideration of an
appropriate disclaimer.
As to this latter request, once an issue has been
decided on appeal, the Board’s authority under Trademark
Rule 2.142(g) is limited to the entry of a disclaimer.
However, we see no scenario under which any disclaimer
would be an appropriate response to this refusal to
register under Sections 1, 2 and 45 of the Act.
Accordingly, applicant’s request to remand the application
to the Trademark Examining Attorney for further
examination is denied. This is unlike the typical case
subject to the rule where the only issue on appeal is a
disclaimer requirement. In such a case, if the Board
affirms the disclaimer requirement, the Board will permit
the applicant to enter the disclaimer after the appeal.
However, there was no disclaimer requirement in this case.
Applicant argues that the term Clothing Facts as used
on its goods “is both unexpected and not ordinarily used …
Serial No. 77251039
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in the particular clothing trade or industry.” [Emphasis
in appliant’s request for reconsideration].
Applicant’s argument is not persuasive. As noted in
our earlier opinion, applicant has selected out for
registration the header of a larger image. It is in the
context of this overall usage that we held that the term
is informational and does not function to identify source.
Rather, we continue to believe that prospective consumers
will perceive this designation as informational matter.
Applicant argues in its request for reconsideration
that “TMEP § 1202.04 is an uncommon basis for refusal ….”
However, the basis for refusal is grounded in Sections 1,
2 and 45 of the Lanham Act. Consumers will simply not
perceive the designation Clothing Facts as a source
indicator. Perhaps not unlike fabric
care and content labels, the term
Clothing Facts as displayed in the context
of applicant’s entire label serves to
refer to the list of information that
follows pertaining to social justice
and environmental stewardship.
Decision: The request for reconsideration and/or
remand is denied.