Universal Interiors, LLC

Trademark Trial and Appeal Board

Nov 16, 2016

No. 86504726 (T.T.A.B. Nov. 16, 2016)

Mailed:
November 16, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Universal Interiors, LLC
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Serial No. 86504726
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Brick G. Power of Durham Jones & Pinegar, P.C.,
for Universal Interiors, LLC.

April E. Reeves, Trademark Examining Attorney, Law Office 102
Mitchell Front, Managing Attorney.
_______

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

Opinion by Ritchie, Administrative Trademark Judge:

Applicant Universal Interiors, LLC (“Applicant”) filed an application to
register on the Principal Register the mark SAFE CLOAK, in standard
character format, for goods ultimately identified as “covers specially adapted
for metal containers; covers specially adapted for metal storage containers;
covers for metal boxes; fitted covers for metal containers; fitted covers for
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser. No. 86504726
2
metal storage containers; fitted covers for metal boxes,” in International
Class 6.1
The Trademark Examining Attorney refused registration on ground that
the applied-for mark is merely descriptive of the goods pursuant to Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). When the refusal was
made final, Applicant filed this appeal, which is fully briefed.
Mere Descriptiveness
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the
goods or services. See In re Chamber of Commerce of the U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (citing In re Gyulay, 820 F.2d 1216,
3 USPQ2d 1009 (Fed. Cir. 1987)); see also In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). 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

1 Serial No. 86504726, filed on January 15, 2015, under Section 1(b) of the
Trademark Act, 15 U.S.C. §1051(b), based on Applicant’s assertion of a bona fide
intent to use the mark in commerce.
Ser. No. 86504726
3
USPQ 591, 593 (TTAB 1979). Moreover, it is settled that “[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 1314, 1316-17
(TTAB 2002). 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); and In re American Greetings Corporation, 226 USPQ 365
(TTAB 1985). On the other hand, if a mark requires imagination, thought
and perception to ascertain the nature of the goods or services, then the mark
is suggestive. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd, 695 F.3d
1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (citing In re Abcor Dev. Corp.
200 USPQ 215).
A composite of descriptive terms is registrable only if it has a separate,
non-descriptive meaning. In re Colonial Stores, Inc., 394 F.2d 549, 157 USPQ
382 (CCPA 1968) (holding SUGAR & SPICE not merely descriptive of bakery
products). The Examining Attorney argues that the applied-for mark “SAFE
CLOAK” describes a feature or characteristic of Applicant’s goods, as they are
covers for containers such as safes.
The Examining Attorney submitted definitions of the terms comprising
the applied-for mark, in relevant part as follows:2

2 The American Heritage Dictionary: ahdictionary.com; Attached to April 27, 2015
Office Action p2, 6.
Ser. No. 86504726
4
Safe: adj. a. Free from danger or injury; undamaged or unhurt:
He returned from the voyage safe and sound. b. Not exposed to
the threat of danger or harm. The children were safe at home all
through the storm.
noun 1. A metal container usually having a lock, used for storing
valuables.

Cloak: noun 1. A loose outer garment, such as a cape. 2.
Something that covers or conceals: A cloak of secrecy.
verb To cover or conceal with a cloak or something that acts like
a cloak: mist that cloaks the mountains.

The Examining Attorney also submitted evidence of third-party use of the
term “SAFE CLOAK” to refer to a concealing cover for a metal safe. AMSEC
descriptively states “the safe cloak instantly turns your safe into a wooden
cabinet,” and includes the following image on its webpage:3

Other third parties also refer to their safe covers as “cloaks”:4
Heirloom Safe & Chest Co.: Limited Lifetime Warranty . . . Our
Cloaks are engineered with a combination of solid wood, veneers
and manmade components. The Cloaks will perform well in a
variety of conditions if properly stored, handled and installed.

3 Amsecusa.com; Attached to April 27, 2015 Office Action, at 6-7.
4 Gunsafes.com; Attached to April 27, 2016 Office Action, at 11.
Ser. No. 86504726
5
In response to an information requirement issued with the April 27, 2015
Office Action, Applicant responded as follows:5
The SAFE CLOAK trademark will be used with covers that are
configured to cover containers, such as safes (including metal
safes). The container covers may hide the safe from plain view.
In some embodiments, these covers will impart the container
over which they are used with a different appearance. For
example, a cover for a safe could impart the safe with the
appearance of a refrigerator, a rack of garden tools or the like.

Applicant further stated in its brief that it is“in the business of
manufacturing covers and other accessories for use with gun safes.”6 Thus,
Applicant’s applied-for mark, “SAFE CLOAK” immediately conveys
information about the identified goods, namely, that they may be used to
conceal metal safes.
Applicant argues, however, that SAFE CLOAK is a double
entendre.7
Rather, the term “safe” in the trademark imparts SAFE CLOAK
with more than one meaning. Specifically, the term “safe” is
commonly used as an adverb [sic] to refer to dependability and
to security from risk, harm, injury or danger. In that context,
the “safe” in SAFE CLOAK could refer to a cloak keeps someone
[sic] or something safe from the weather, from accidents, from
criminals, or from other dangers.

We note first that we must consider the meaning of the mark in relation to
the identified goods, which are covers for metal containers, metal storage
containers, and metal boxes, and thus it cannot refer in our analysis to a
cloak for simply anyone or anything. See In re Bright-Crest, Ltd., 204 USPQ

5 October 27, 2015 Response to Office Action.
6 4 TTABVUE 6.
Ser. No. 86504726
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591, 593 (TTAB 1979). Furthermore, even if we were to consider the
alternative definition, it is no less descriptive of cloaks that protect “from the
weather, from accidents, from criminals, or from other dangers.” In fact, “to
the extent [Applicant’s proposed mark] does present two meanings they are
both merely descriptive of the [goods] in that both asserted meanings refer to
the customers’ needs being met by the provision of the appropriate
capabilities/qualities.” In re RiseSmart, Inc., 104 USPQ2d 1931, 1934 (TTAB
2012); see also, TMEP § 1213.05(c) (October 2016) (“If all meanings of a
‘double entendre’ are merely descriptive in relation to the goods, then the
mark comprising the ‘double entendre’ must be refused registration as merely
descriptive.”).
Based on the plain meaning of the term as a whole as well as the third-
party evidence and Applicant’s own statements, we find that Applicant’s
composite term “SAFE CLOAK,” when viewed in relation to Applicant’s
goods, immediately conveys that Applicant’s goods may be used as a cover for
metal safes, and additionally provide a “safe cover” for those containers.
While doubt is resolved for Applicant, we have no doubt that consumers
require no imagination, thought or perception to arrive at this conclusion. See
DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd, 103 USPQ2d at 1755.
Therefore, we find that the mark is merely descriptive of the identified goods,
and we affirm the refusal to register.
Decision: The Board affirms the refusal to register.

7 4 TTABVUE 7-8.