T.S. Designs, Inc.

Trademark Trial and Appeal Board

Jun 9, 2010

No. 77251039 (T.T.A.B. Jun. 9, 2010)

Mailed:
June 9, 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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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:
T.S. Designs, Inc. seeks registration on the
Principal Register of the designation Clothing Facts (in
standard character format) for goods identified as “long-
sleeved shirts; polo shirts; short-sleeved shirts; [and]
t-shirts” in International Class 25.1

1 Application Serial No. 77251039 was filed on August 9,
2007 based upon applicant’s claims of first use anywhere and
first use in commerce at least as early as December 8, 2003.
THIS OPINION IS A
PRECEDENT OF THE
TTAB
Serial No. 77251039
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The Trademark Examining Attorney refused registration
on the ground that the term as it appears on the specimens
of record functions as informational matter and is not a
source-identifying trademark, under Sections 1, 2 and 45
of the Trademark Act, 15 U.S.C. §§ 1051-1052, 1127.
After the Trademark Examining Attorney made the
refusal final, applicant appealed to this Board.
We affirm the refusal to register.
The record shows applicant promotes that it has
sustainable business practices characterized by social
justice, environmental stewardship and economic
prosperity. http://www.tsdesigns.com/. Consistent with its
marketing to “Green” consumers,
applicant’s usage of the Clothing Facts
designation highlights the
environmentally-friendly nature of its
apparel. Applicant’s original specimen
(shown at right) was identified as a
label. The Trademark Examining Attorney
agrees with applicant that applicant’s “Clothing Facts”
label is reminiscent of the “Nutrition Facts” label
required for food products by the United States Food and
Drug Administration (USFDA).
Serial No. 77251039
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We note that applicant has not applied to register
this entire “label,” but only the designation Clothing Facts.
While the display of the words in the context of this
entire label is relevant to our inquiry regarding how the
words are likely to be perceived, we cannot assume that
prospective consumers would make an association between
applicant’s label and the FDA label device. Nor can we
assume that any such association would, as a matter of
course, result in recognition of the words “Clothing
Facts” as a mark. In any case, the Trademark Examining
Attorney argues that consumers will not perceive this
designation as a source indicator but merely a clever
device intended to inform prospective consumers about the
environmental awareness and ecological consciousness
involved in the manufacture of applicant’s clothing.
In contrast, applicant argues that this mark will
be readily recognized by customers as a “secondary
source” or “sponsorship” for Clothing Facts printed apparel.
We take this as a contention that the whimsical nature of
the label as a whole will result in recognition by
consumers of the words at the head of the label design.
The Trademark Examining Attorney disagrees and relies
upon cases such as In re Volvo Cars of N. Am., Inc.,
Serial No. 77251039
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46 USPQ2d 1455, 1460-61 (TTAB 1998) [the wording DRIVE
SAFELY not registrable because it would be perceived only
as an everyday, commonplace safety admonition and not as a
trademark for “automobiles and structural parts
therefor”]; and In re Manco, Inc., 24 USPQ2d 1938, 1942
(TTAB 1992) [the wording THINK GREEN is
not registrable because it would be
perceived only as an informational
slogan encouraging environmental
awareness and not as a trademark for
weather stripping and paper products]. The Trademark
Examining Attorney is correct in noting the importance of
focusing on likely consumer perceptions. These reported
decisions involve designations that were found to be
perceived as serving a different purpose than identifying
the source of goods. Hence, we must look closely at the
manner in which applicant uses the wording Clothing Facts.
The original specimen (displayed most clearly above) was
the reproduction of a label sewn onto the neckline of a
T-shirt (top left in photo collage below), while
substitute specimens display the same image printed
directly onto the back and the front of a T-shirt:
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We appreciate that this imagery involves a humorous
play on the USFDA’s ubiquitous nutrition labeling device
and is designed to communicate applicant’s commitment to
social justice and environmental stewardship. However, in
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this context, we agree with the Trademark Examining
Attorney that prospective consumers will view the
designation Clothing Facts, as used on the entire label
device, as informational matter, not as a source
identifier for the shirts. The likelihood that consumers
will so perceive these words on the label is enhanced
because the label contains two clear source identifiers,
namely “tsdesigns.com” and “printing t-shirts for good,”
the latter specifically bearing the informal “TM”
designation, while the phrase Clothing Facts does not.
Although applicant attempts to rely on the theory of
“secondary source,” there is no factual parallel herein to
reported decisions where ornamental material on the
clothing inherently tells the purchasing public the source
of the goods (e.g., as collateral products to known goods
or services). Compare In re Olin Corporation, 181 USPQ
182 (TTAB 1973); In re Expo ’74, 189 USPQ 48 (TTAB 1975);
and In re Watkins Glen International, Inc., 227 USPQ 727
(TTAB 1985). Similarly, there is no showing of acquired
distinctiveness for this matter. While the usage of the
image of the entire label device on, inter alia, the
goods, delivery trucks, and trade show exhibits,
demonstrates applicant’s efforts to acquire
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distinctiveness for this imagery, nothing in the record
shows promotion of the term Clothing Facts alone as a mark.
In addition, we find irrelevant applicant’s arguments that
it owns U.S. Patent Nos. 5,984,977, 6,168,635, 6,201,044
and 6,139,590 for products and manufacturing processes, or
that applicant was the owner of trademark Registration No.
2250430 (prior to its cancellation under Section 8 of the
Lanham Act) for a totally-separate mark, REHANCE, for
items of clothing, including shirts.
Decision: The refusal to register under Sections
1, 2 and 45 of the Trademark Act is hereby affirmed.