West Side Vapor LLC

Trademark Trial and Appeal Board

Nov 9, 2015

No. 86013944 (T.T.A.B. Nov. 9, 2015)

Mailed: August 26, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re West Side Vapor LLC
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Serial No. 86013944

_______

Matthew H. Swyers, The Trademark Company, PLLC,
for West Side Vapor LLC.

Margery A. Tierney, Trademark Examining Attorney, Law Office 111,
Robert Lorenzo, Managing Attorney.
_______

Before Ritchie, Adlin and Goodman,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

West Side Vapor LLC (“Applicant”) filed an application to register on the
Principal Register the mark VAPOR STATION1 in standard character format
for “retail store services featuring electronic cigarettes and accessories,” in
International Class 35. The Trademark Examining Attorney refused
registration of the mark under Section 2(e)(1) of the Trademark Act, 15

1 Application No. 86013944, filed July 18, 2013, pursuant to Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on alleged dates of first use and first use
in commerce of June 1, 2013.
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Serial No. 86013944
2
U.S.C. § 1052(e)(1), on the ground that it is merely descriptive of the applied-
for services. When the refusal was made final, Applicant filed an appeal. The
Examining Attorney and Applicant each filed briefs. Upon careful
consideration of the relevant arguments and evidence, we affirm the refusal
to register.
Section 2(e)(1)
A term is merely descriptive under Section 2(e)(1) of the Trademark Act,
15 U.S.C. § 1052(e)(1), if it immediately conveys knowledge of a quality,
feature, function or characteristic of the goods or services with which it is
used. See, e.g., In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012), quoting In re Bayer Aktiengesellschaft,
488 F.3d 960, 963, 82 USPQ2d 1828 (Fed. Cir. 2007) (citing In re Gyulay, 820
F.2d 1216, 1217, 3 USPQ2d 1009 (Fed. Cir. 1987); and In re Abcor Dev. 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 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
Serial No. 86013944
3
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).
The Examining Attorney argues that the applied-for mark “VAPOR
STATION” describes a feature or characteristic of Applicant’s services,
namely that it offers electronic cigarettes which produce vapor. 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).
Accordingly, we look to the plain meaning of the words, and then, more
importantly, the meaning of their combination.
The Examining Attorney submitted definitions of the terms “vapor” and
“station,” in relevant part as follows:
Vapor: 1. A visible exhalation, as fog, mist, steam, smoke, or
noxious gas, diffused through or suspended in the air; 5.
Gaseous particles of drugs that can be inhaled as a therapeutic
agent.
Dictionary.com

Station: 1. A place or position in which a person or thing is
normally located; 5. A place equipped for some particular kind of
work, service, research, or the like: gasoline station; geophysical
station.
Dictionary.com

Serial No. 86013944
4
Applicant submitted, also from Dictionary.com, a list of synonyms of “vapor,”
which include: moisture, steam, smoke, gas, haze, dew, and fog.
Other evidence of record shows that the term “vapor” is specifically
associated with electronic cigarettes. The Examining Attorney submitted
evidence that various establishments in Maryland and Virginia that sell
electronic cigarettes incorporate the term “vapor” into their names. Examples
include American Vapors (Bristol, VA); All About the Vapor (4 Locations in
VA); Avail Vapor (7 Locations in VA); Cig Vapor (Richmond, VA); Liberty
Vapors (Ashburn, VA); Master Vapor (Virginia Beach, VA); Quantum Vapor
(Rockaway, NJ); Potomac Vapor (Woodbridge, VA); Vapor Studio (Leesburg,
VA); VB Vapor (Virginia Beach, VA); All in Vapors (Gaithersburg, MD); All
Day Vapors (Baltimore, MD); Crowd Vapor (Annapolis, MD); DC Vapor
(Wheaton, MD); Harbor Vapor (Baltimore, MD); Kahuna Vapor (Ellicott City,
MD); Madd Catt Vapors (Cumberland, MD); Mean Street Vapor (Glen
Burnie, MD); Side Street Vapors (Rosedale, MD); The Vapor Emporium (New
Market, MD); The Vapor Room (Frostburg, MD); Vapor Alley (Easton, MD);
Vapor Moon (Abingdon, MD); Vapor Villa (Catonsville, MD); and Vapor Villa
(Baltimore, MD).
Applicant itself submitted as a substitute specimen its Facebook page,
which uses the term “vapor” descriptively in several places in relation to
electronic cigarettes:
Serial No. 86013944
5
How, then, can you make the commitment to quit and stick to it?
A Columbus company called Westside Vapor may have a tool
that can help you out.

Offering what they call an “E-Vapor” device (also frequently
called an e-Cigarette), the body of the E-Vapor is a re-usable
atomizer that looks like a cigarette, but is manufactured from
plastic and tipped by a distinctively colored LED light. The E-
Vapor starter kit retails for $15 and comes with the atomizer, a
charger which can plug into any standard USB port, and two
disposable cartridges filed with a vaporizing liquid based on
vegetable glycol. The cartridges are made to look like a
conventional cigarette filter, though they weigh slightly more,
and screw securely into the atomizer.

Additionally, we note that the Applicant’s original specimen shows an
image of vapor appearing to float through the words Vapor Station:

Serial No. 86013944
6
Regarding the term “STATION,” the Examining Attorney submitted
evidence of seven third-party registrations on the Principal Register that use
the term “STATION” in connection with retail services, and that disclaim the
term: ALLIANCE TEXAS STATION (Registration No. 3080258, for retail of
“convenience store items and gasoline” and disclaiming “Texas station”);
SQEEGEE FILL STATION (Registration No. 2824026, for retail of
“convenience store items and gasoline,” and disclaiming “fill station”);
KARAOKE STATION, and design( Registration No. 3334488, for retail of
“karaoke discs” and related equipment, and disclaiming “karaoke station”);
NEOGO STATION (Registration No. 4095054, for retail of “consumer video
game machines” and related items, and disclaiming “station”); FRISCO
PARTY STATION PARTY SUPPLIES BALLOONS COSTUMES, and design
(Registration No. 4010466, for retail of “party supplies and costumes,” and
disclaiming “Frisco party station party supplies balloons costumes”); and
THE HYDRATION STATION (Registration No. 4357278, for retail of
“convenience store items and gasoline,” and disclaiming “station”). For its
part, Applicant submitted seven additional use-based third-party
registrations that also include the term “STATION” and which are registered
on the Principal Register for retail services. Applicant relies on the fact that
in these registrations STATION is not disclaimed: STATIONERY STATION
(Registration No. 1530274, for retail of “printed stationery” and disclaiming
“stationery”); THE PUMP STATION (Registration No. 2060878, for retail of
Serial No. 86013944
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“child nursing products” and disclaiming “pump”); WATCH STATION
(Registration No. 2141375, for retail of “watches” and related paraphernalia,
and disclaiming “watch”); WIRELESS STATION (Registration No. 3591636,
for retail of “wireless communication equipment,” and disclaiming “wireless”);
SHOE STATION (Registration No. 3430772, for retail of “footwear,” and
disclaiming “shoe”); CUPCAKE STATION (Registration No. 3552007, for
retail of “bakery goods,” and disclaiming “cupcake”); and THE GROWLER
STATION, (Registration No. 4129595, for retail of “beer growlers to go,” and
disclaiming “growler”). The Examining Attorney further submitted web
evidence of retailers that use the term “station” as part of their name, in
reference to their retail services. Examples include The Shoe Station
(shoestation.com, advertising retail services of shoes);2 The Jewelry Station
(jewelrystation.com, advertising retail services of jewelry ); and
GameStation.net (gamestation.net, advertising retail services of various
types of games). Whether or not the term STATION is disclaimed, both
Applicant’s and the Examining Attorney’s evidence establishes that the term
has an understood meaning in connection with retail store services. See Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. August 19,
2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d

2 This website appears to be operated by the registrant of Registration No. 3430772,
which, as noted above, registered SHOE STATION for retail services with a
disclaimer only of “SHOE,” and not “STATION.”
Serial No. 86013944
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1671, 1675 (Fed. Cir. 2015).
Given that retail stores are so commonly named “station,” such as SHOE
STATION and JEWELRY STATION, and that “vapor” is so commonly used
to describe electronic cigarettes, we find that Applicant’s composite term
“VAPOR STATION,” when viewed as a whole, in relation to Applicant’s retail
services, immediately conveys that Applicant is an electronic cigarette
retailer. We have no doubt that electronic cigarette users would not require
thought or imagination to understand that “VAPOR STATION” refers to
Applicant’s electronic cigarette stores. See In re Tower Tech Inc., 64 USPQ2d
at 1316-17; see also In re Conductive Services, Inc., 220 USPQ 84, 86 (TTAB
1983). Therefore, we find that the mark is merely descriptive of the identified
services, and we affirm the refusal to register.
Decision: The Board affirms the refusal to register.