William McCullam

Trademark Trial and Appeal Board

Nov 2, 2000

No. 75152342 (T.T.A.B. Nov. 2, 2000)

Paper No. 23
Bottorff
11/2/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re William McCullam
________
Serial No. 75/152,342
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Ainslee A. Schreiber of Furgang & Adwar, L.L.P. for William
McCullam.
Patricia M. Evanko, Senior Attorney, Law Office 112 (Janice
O’Lear, Managing Attorney).
_______
Before Hanak, Hohein and Bottorff, Administrative Trademark
Judges.
Opinion by Bottorff, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the mark THE AMERICAN ARTIFACT, in typed form, for
“retail store services, mail order catalog services, and
electronic online ordering services, all featuring clothes,
furniture, tools, jewelry, housewares, personal care items,
appliances, transportation equipment, foodstuffs, nostrums,
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/152,342
2
husbandry and farming items, artwork, books, posters,
ephemera, scientific devices, and weapons,” in Class 35.1
The Trademark Examining Attorney has issued a final
refusal of registration on the ground that applicant’s mark
is merely descriptive of applicant’s services and thus is
unregistrable under Trademark Act Section 2(e)(1).
Applicant has appealed from that refusal. Applicant and
the Trademark Examining Attorney have filed main briefs,
and applicant filed a reply brief. No oral hearing was
held.2 We affirm the refusal.
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, e.g., In re Gyulay, 820
F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987), and In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). A term need not immediately convey an idea of each
and every specific feature of the applicant's goods or

1 Serial No. 75/152,342, filed August 19, 1996 on the basis of
intent-to-use under Trademark Act Section 1(b), 15 U.S.C.
§1051(b).
2 An oral hearing was scheduled at applicant’s request.
Subsequently, applicant’s attorney notified the Board that
applicant would not be represented at the scheduled oral hearing.
Accordingly, no hearing was held.
Ser. No. 75/152,342
3
services in order to be considered merely descriptive; it
is enough that the term describes one significant
attribute, function or property of the goods or services.
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973). 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. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB
1979).
We find that THE AMERICAN ARTIFACT is merely
descriptive of applicant’s “retail store services, mail
order catalog services, and electronic online ordering
services” because among the items applicant intends to
offer for sale via such services are items which readily
could be described as “American artifacts.” See In re
Bonni Keller Collections Ltd., 6 USPQ2d 1224 (TTAB 1987)(LA
LINGERIE unregistrable for retail store services in the
field of clothing); In re Wickerware, Inc., 227 USPQ 970
(TTAB 1985) (WICKERWARE unregistrable for mail-order and
distributorship services in the field of wicker furniture
Ser. No. 75/152,342
4
and accessories); In re Half Price Books, Records,
Magazines, Inc., 225 USPQ 219 (TTAB 1984)(HALF PRICE BOOKS
RECORDS MAGAZINES unregistrable for services including
retail book and record stores offering books, records and
magazines at half price).
Our finding is based on the following evidence. We
take judicial notice3 that the adjective “American” is
defined as:
1. Of, relating to, or typical of the United
States of America, its people, culture,
government, or history;
2. Of, in, or relating to North or South
America or the Western Hemisphere;
3. Of or relating to the Indians inhabiting
America; and
4. Indigenous to North or South America.
Webster’s II New Riverside University Dictionary (1988) at
100. We further note that “artifact” is defined as “a usu.
simple object (as a tool or ornament) showing human
workmanship or modification as distinguished from a natural
object,”4 and as “an object produced by human workmanship,

3 The Board may take judicial notice of dictionary definitions.
See Fed. R. Evid. 201; University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982), aff’d 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
4 Webster’s Third New International Dictionary (1993) at 124.
Ser. No. 75/152,342
5
esp. a tool, weapon, or ornament of archaeological or
historical interest.”5
The Trademark Examining Attorney has made of record
numerous excerpts of articles obtained from the NEXIS
automated database which demonstrate common use of the term
“American artifact” and that, more generally, the term
“artifact” is used to refer to many of the items to be
offered for sale by applicant. Those excerpts include the
following:
While most items you’ll see are American
artifacts, some are more “souvenirs of war.”
- The Montgomery Advertiser, August 6, 1998,
under headline: “U.S. Military History Comes
Alive”;
Now the American artifact exhibition is in
Boston, and Tulloch anticipates attendance
figures at around 500,000 during its engagement
through October.
- The Providence Journal-Bulletin, July 1,
1998;
Each of the buildings and nearly 200,000 early
American artifacts are authentic.
- Vero Beach (FL) Press Journal, June 28,
1998;
…a room-sized repository of American artifacts
to be opened in the year 8113 AD.
- CBS News Transcripts: 48 Hours, June 25,
1998;
This partnership will result in the
unparalleled opportunity to assemble some of

5 Webster’s II New Riverside University Dictionary (1988) at 128.
Ser. No. 75/152,342
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the finest exhibitions of American artifacts
outside of Washington, D.C. Exhibits – always
emphasizing education – will focus on an
amazing variety of subjects.
- The Dallas Morning News, February 5, 1998;
Thirteen-year-old Amanda Arnold’s family roots
are English, but she brought an American
artifact: A quilt her great-grandmother made
for her grandmother when she was a girl. The
quilt, made during the Great Depression, is
made from…
- St. Petersburg Times, December 21, 1997;
He was an avid collector of early American
artifacts and tools, which he considered pure
art, …
- The Santa Fe New Mexican, November 14, 1997;
… officer and director of America’s Smithsonian
said that Maher and his staff have worked with
the institution since the kick-off of its
special 150th anniversary American artifact
exhibit tour in Los Angeles last year.
- Ventura County Star, August 3, 1997;
The Museum of the Confederacy has purchased
several African-American artifacts and two
Confederate flags. One artifact is a Civil War
period shoe worn by an African-American…
- The Richmond Times Dispatch, October 4,
1998;
The exhibit features African-American artifacts
from Arlington, including diaries kept by
slaves that have been recorded on audio tape;
quilts made by slaves, as well as…
- The Dallas Morning News, June 19, 1998;
Her home should be an African American history
museum. It is filled with all kinds of African
American artifacts from some of the oldest
Ebony and Jet magazines, rare African American
books and journals, photographs, albums,
posters and the like.
- The Tennessee Tribune, March 5, 1998;
Ser. No. 75/152,342
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A workshop, “What You Should Know About
Collecting African-American Artifacts and
Memorabilia,” will begin at 5:30 p.m. Visitors
are encouraged to bring three items, such as
photographs, paintings and prints from their
personal…
- The Hartford Courant, February 3, 1998; and
He’s a collector of African-American artifacts.
He says he has postcards, photos and
memorabilia of every sort in his home.
- The Baltimore Sun, October 12, 1997.
These article excerpts and the dictionary definitions
quoted above are sufficient to establish that the
designation THE AMERICAN ARTIFACT would directly and
immediately inform purchasers that applicant is engaged in
the sale of American artifacts, i.e., objects of American
historical or cultural interest. Applicant’s arguments to
the contrary are not persuasive.
Applicant argues that the word AMERICAN, as shown by
the dictionary definition quoted above, has several
meanings, not all of which would have descriptive
significance as applied to applicant’s services, i.e., the
sale of reproductions of antiques “that are indigenous to
the United States of America.” However, because one of the
definitions of AMERICAN (indeed, the primary definition)
Ser. No. 75/152,342
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merely describes applicant’s services, it is not
dispositive that other of the definitions might not.6
Applicant also relies on the alleged existence of
various third-party registrations (and pending
applications) involving marks which include the term
AMERICAN, and argues that his mark likewise should be
deemed registrable. However, applicant never properly made
those registrations of record by submitting copies of PTO
records. See In re Duofold, Inc., 184 USPQ 638 (TTAB
1974). Moreover, the commercial search report printouts
applicant submitted are so incomplete as to be of no
probative value. In many instances, they fail to identify
the goods and services covered by the registrations, which
register (Principal or Supplemental) is involved, whether
registration was issued pursuant to Trademark Act Section
2(f), and/or whether a disclaimer was required. In any
event, it is settled that third-party registrations are not
conclusive on the question of descriptiveness. Each case

6 In his reply brief, applicant backs away from his assertion in
his main brief that the objects he will sell are limited to those
which are indigenous to the United States; he now says that his
goods may include reproductions of Canadian and/or South American
antiques as well. Under any of these scenarios, the term
AMERICAN merely describes the goods applicant intends to sell.
Moreover, applicant’s recitation of services is not limited in
any way with respect to the types, or geographic origins, of the
goods applicant intends to sell.
Ser. No. 75/152,342
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must stand on its own merits and a mark which is merely
descriptive should not be registered on the Principal
Register simply because other such marks appear on the
register. See In re Scholastic Testing Service, Inc., 1906
USPQ 517 (TTAB 1977).
Likewise, applicant is not persuasive in arguing that
ARTIFACT is not merely descriptive of his services or that
the items he intends to sell are not “artifacts.” Many, if
not all, of the items listed in the recitation of services
fall within the dictionary definitions of “artifact” set
forth above, and many of the items are of the type which
are specifically identified in the NEXIS excerpts as
“artifacts.” It is immaterial, even assuming it is true,
that a few of the items listed in the recitation of
services might not be thought of as “artifacts.” Because
several of the items in fact are “American artifacts,”
refusal of the application in its entirety is warranted.
See In re American Society of Clinical Pathologists, Inc.,
442 F.2d 1404, 169 USPQ 800 (CCPA 1971); In re Canron,
Inc., 219 USPQ 820 (TTAB 1983).
Also immaterial is applicant’s assertion that the
goods applicant intends to sell are factory reproductions
of artifacts rather than authentic and/or handmade
artifacts. Applicant’s contention that only “hand-made”
Ser. No. 75/152,342
10
objects qualify as “artifacts” is not supported by the
dictionary definitions and NEXIS evidence of record.7
Moreover, applicant’s recitation of services contains no
such restriction or limitation as to the nature of the
artifacts applicant intends to sell, i.e., “reproduction”
vs. “authentic.” Even if applicant intends to sell only
“reproductions” of artifacts, the term ARTIFACT still
merely describes significant feature of the goods, i.e.,
their appearance or function, and thus merely describes
applicant’s services.
Finally, the availability to competitors of
alternative, equally merely descriptive terms, i.e.,
“antiques,” “reproductions” or “collectibles,” does not
eliminate the mere descriptiveness of THE AMERICAN ARTIFACT
as applied to applicant’s services.
In summary, the evidence of record suffices to
establish that THE AMERICAN ARTIFACT is merely descriptive
of applicant’s services. We have carefully considered all
of applicant’s arguments to the contrary, but are not

7 Similarly, there is no basis in the record for applicant’s
contention that purchasers would view an “artifact” solely or
even primarily as an item which was unearthed at an
archaeological dig.
Ser. No. 75/152,342
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persuaded.
Decision: The refusal to register is affirmed.
E. W. Hanak
G. D. Hohein
C. M. Bottorff
Administrative Trademark Judges
Trademark Trial and Appeal Board