Webid Consulting Ltd.

Trademark Trial and Appeal Board

Jan 7, 2010

No. 77370042 (T.T.A.B. Jan. 7, 2010)

Mailed: January 7, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Webid Consulting Ltd.
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Serial No. 77370042
_______

James A. Wahl of Krass Monroe, P.A. for Webid Consulting
Ltd.

Brendan D. McCauley, Trademark Examining Attorney, Law
Office 114 (K. Margaret Le, Managing Attorney)
_______

Before Holtzman, Kuhlke and Ritchie, Administrative
Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Webid Consulting Ltd., applicant, has filed an
application to register the mark MANWEAR in standard
characters on the Principal Register for goods ultimately
identified as “men’s clothing, namely, coats, jackets,
vests, sweaters, t-shirts, shirts, jerseys, shorts, parkas,
pullovers, wind-jackets, pants, raincoats; sportswear,
namely, sweatsuits, jeans, sport jackets, overalls;
underwear, namely, short and long sleeve tee-shirts, long
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B
Serial No. 77370042
2
johns, briefs, boxers; men’s leather clothing, namely,
coats, jackets, vests, shorts, parkas, pants, raincoats;
men’s fashion accessories, namely, ties, socks, caps,
gloves, belts, wristband, watch wristband, hats, shoes and
scarves” in International Class 25. The application was
filed on January 11, 2008, under Section 1(b) of the
Trademark Act, 15 U.S.C. §1052(b), alleging a bona fide
intention to use the proposed mark in commerce.
The examining attorney has refused registration under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), on the ground that applicant’s mark is merely
descriptive of its goods. The examining attorney argues
that “the matter sought to be registered describes a
feature, characteristic or purpose of applicants goods,
namely, wear or clothing for a male.” Br. p. 7.
After the examining attorney made the refusal final,
applicant appealed and filed a request for reconsideration.
On June 2, 2009, the examining attorney denied the request
for reconsideration and the Board resumed the appeal. Both
applicant and the examining attorney have filed briefs. We
affirm the refusal to register.
Serial No. 77370042
3
The issue before us is whether the term MANWEAR is
merely descriptive of men’s clothing.1 “A term is merely
descriptive if it immediately conveys knowledge of a
quality, feature, function, or characteristic of the goods
or services with which it is use.” In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007). See also In re Oppedahl & Larson LLP,
373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004); and
In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d
1778, 1780 (Fed. Cir. 2003); In re Engineering Systems
Corp., 2 USPQ2d 1075 (TTAB 1986); and In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). It is not necessary, in
order to find a mark merely descriptive, that the mark
describe each feature of the goods or services, only that
it describe a single, significant ingredient, quality,
characteristic, function, feature, purpose or use of the
goods or services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d
1009 (Fed. Cir. 1987).
Further, it is well-established that the determination
of mere descriptiveness must be made not in the abstract,
but in relation to the goods or services for which

1 Inasmuch as the only refusal here is based on the proposed mark
being merely descriptive, we do not have to address the arguments
concerning whether MANWEAR “indicates a genre of clothing for
males or related retail services.” Applicant’s Br. p. 12.

Serial No. 77370042
4
registration is sought, the context in which the mark is
used, and the impact that it is likely to make on the
average purchaser of such goods or services. Bayer, 82
USPQ2d at 1831. See also In re Abcor Development Corp.,
588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978). Finally,
“[t]he examining attorney has the burden to establish that
a mark is merely descriptive.” Bayer, 82 USPQ2d at 1831.
In support of his position that the proposed mark is
merely descriptive, the examining attorney submitted
numerous dictionary definitions. Below are examples of
relevant definitions:
Man -an adult male human, as distinguished from
a boy or a woman

Men -plural of man

Wear -clothing or other articles for wearing,
esp. when fashionable or appropriate for a
particular function (often used in combination);
travel wear; sportswear.

www.dictionary.com.

“Applicant does not dispute those meanings” but argues
that “these definitions do not lead to the conclusion that
the combination of the two words results in a descriptive
term.” Br. at 8.
We also take judicial notice of the definition of the
term “men’s wear” as “apparel and accessories for men.
Also, menswear.” The Random House Dictionary of the
Serial No. 77370042
5
English Language (unabridged) (2d ed. 1987). University of
Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213
USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983).
The examining attorney also submitted various webpages
that include references to the term “manwear”; however, the
majority of these websites are from foreign sources. While
foreign websites may have some probative value depending on
the circumstances, we do not find these examples to be
particularly probative here.2 Bayer, 82 USPQ2d at 1835
(“Information originating on foreign websites of 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”).3 The evidence does include

2 We note, however, that it is reasonable to presume that at
least purchasers in the wholesale clothing market in the United
States would be exposed to these foreign usages considering the
amount of clothing manufactured overseas. See, e.g.,
www.go4worldbusiness.com a webpage for the company Oceanus
Industrial Limited of China which deals in the export of
“kidswear, manwear, ladywear, jeans, denim jackets, [etc.]”;
www.imports.com an export company for different brands of “women
clothing, textile, underware, night gowns, pyjamas, etc. also
manwear”; and www.made-in-china.com a production and export
company that produces inter alia “manwear, woman-garment blouse
[etc.]”

3 Applicant’s reliance on In re Men’s Int’l Professional Tennis
Council, 1 USPQ2d 1917 (TTAB 1986) is misplaced in view of In re
Cell Therapeutics Inc., 67 USPQ2d 1795, 1797 (TTAB 2003) wherein
the Board stated:

Taking a broader view, we note that the Professional
Tennis Council and [In re] Appetito Provisions [Co., 3
Serial No. 77370042
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the following excerpts from webpages that are somewhat more
probative in this circumstance:
Joe Simpson, a former preacher, who now walks the
red carpets behind his daughter, wearing slick,
metrosexual manwear (www.momcentral.com); and

[Tim McGraw’s] jeans look like metrosexual
manwear not country singer gear
(www.gabsmash.blogspot.com).

Applicant argues that these examples “wholly fail to
show that ‘manwear’ is commonly used as the name of the
Applicant’s services. First, neither is a trademark usage;
rather these are textual references to clothing. Second,
finding only two examples of use in the United States is
clearly a de minimus showing that falls far short of
establishing common usage. This evidence has absolutely no
probative value of the issue of descriptiveness, other than
to support the Applicant’s position that MANWEAR is not in
common use in the United States.” Br. pp. 14-15. The fact
that it is not trademark usage but rather a “textual
reference” or descriptive usage is directly relevant to the
refusal based on mere descriptiveness. The fact that only
two examples are in the record simply goes to the weight of

USPQ2d 1553 (TTAB 1987)] cases were decided well over
fifteen years ago. This Board would be blind if it
did not recognize that during the past fifteen years,
there has been a dramatic change in the way Americans
receive their news.
Serial No. 77370042
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that evidence. As noted below, being the first or only
user of a term does not make it suggestive.
Based on the evidence of record, the examining
attorney has clearly established prima facie that the term
“manwear” is descriptive of applicant’s identified goods
which consist of menswear. First, the term is comprised of
clearly descriptive terms. Wear denotes clothing and man
indicates for whom this clothing is designed. Further,
when combined as MANWEAR there is nothing incongruous about
the use of the term MANWEAR. When buying clothing, a
consumer immediately would understand that the term
“manwear” is referring to clothing worn by men. There is
simply nothing left to the imagination that the term
MANWEAR is referring to clothing for a man.
Applicant argues that by “substituting MAN for MEN’S
and thus intentionally diverting from use of menswear, the
commonly understood term for men’s clothing, the Applicant
has created an obvious incongruity in the mind of the
prospective customer.” Br. at 9. However, the only
difference between the terms MANWEAR and MENSWEAR is that
applicant uses the singular of MAN while the generic term
uses the plural possessive. Inasmuch as “man” has the same
meaning as the word “mens” except that it is a singular,
non-possessive form of the word, it is difficult to see how
Serial No. 77370042
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this change results in an incongruity or a double entendre.
In re Acuson, 225 USPQ 790, 792 (TTAB 1985) (“We see no
significance in the fact that the term ‘COMPUTED’ is used
instead of ‘COMPUTER’ or ‘COMPUTERIZED.’”)
We add that incorrect spellings do not transform a
descriptive or generic term into a suggestive one. Nupla
Corp. v. IXL Manufacturing Co., 114 F.3d 191, 42 USPQ2d
1711, 1716 (Fed. Cir. 1997) (CUSH-N-GRIP merely misspelling
of CUSHION-GRIP generic “as a matter of law”); Weiss Noodle
CO. v Golden Cracknel and Specialty Co., 290 F.2d 845, 129
USPQ 411 (CCPA 1961) (HA-LUSH-KA held to be the generic
equivalent of the Hungarian word “haluska”); and In re
Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (URBANHOUZING
equivalent of descriptive term URBAN HOUSING).
Relying on In re Shutts, 217 USPQ 363 (TTAB 1983),
applicant argues that “[j]ust as one would not ‘rake’ snow,
the average person, as demonstrated by the definitions
listed above, will not understand ‘man’ to mean clothing
sizes, garments or store departments. It is only with some
measure of imagination or mental pause that one would
understand MANWEAR to relate to clothing.” Br. p. 11. We
do not find these facts to be congruent to those presented
in Shutts, wherein the Board found SNORAKE to be suggestive
stating that “as applied to applicant’s tool, [it] does not
Serial No. 77370042
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readily and immediately evoke an impression and
understanding of applicant’s implement as a snow removal
device; nor does the term ‘rake,’ even technically viewed,
connote, as the Examining Attorney maintains, simply ‘to
remove’ or ‘to scrape off’.” Shutts, 217 USPQ at 364. The
word man “even technically viewed” connotes the singular of
men.
Applicant’s argument that “the term MAN does not have
a single recognized meaning” is not persuasive. Br. at 12.
The fact that “man” has other meanings in other contexts is
not relevant; we are constrained to make our analysis
within the context of the identified goods. Thus, while
the terms man and wear are words with numerous meanings,
when they are combined and used in association with men’s
wear, their combined meaning is clear, namely, clothing for
men. This is not a circumstance where the different
meanings would all relate to the identified goods, which
could create an incongruity or a mental pause.
Finally, applicant argues that its proposed mark “is
not commonly used or understood to relate in any way to
[its] goods.” Br. at 15. As discussed above, the meaning
of MANWEAR in the context of clothing, and more
specifically men’s wear, would be clear to relevant
purchasers. Moreover, it is well settled that even if
Serial No. 77370042
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applicant is the first and only user of this term, that
alone cannot “alter the basic descriptive significance of
the term and bestow trademark rights therein.” In re
Gould, 173 USPQ 243, 245 (TTAB 1972).
We are persuaded that when applied to applicant’s
clothing, MANWEAR immediately describes, without need for
conjecture or speculation, a significant feature of the
goods, namely that they are men’s clothing.
Decision: The refusal to register under Section
2(e)(1) is affirmed.