Accura Bullets, LLC

Trademark Trial and Appeal Board

Dec 29, 2009

No. 76616320 (T.T.A.B. Dec. 29, 2009)

Mailed:
29 December 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Accura Bullets, LLC
________

Serial No. 76616320
_______

Michael W. Goltry of Parsons & Goltry for Accura Bullets,
LLC.1

William T. Verhosek, Trademark Examining Attorney, Law
Office 114 (K. Margaret Le, Managing Attorney).
_______

Before Grendel, Drost, and Walsh, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On October 8, 2004, applicant Accura Bullets, LLC
filed an intent-to-use application to register the mark

in standard character form on the Principal Register for
bullets in Class 13. Serial No. 76616320. The application
contains a disclaimer of the term “Bond.”

1 Subsequent to the briefing in this case, Mr. Goltry was
appointed counsel for applicant. Prior to that, Ken J. Pedersen
of Pedersen & Company, PLLC, was counsel for applicant.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 76616320
2
On September 27, 2005, the application was published
for opposition. When no opposition was filed, on June 16,
2008, applicant submitted the following specimen with its
statement of use.
The heading on the specimen page is:

The rest of the first page from applicant’s specimen
is shown below. The mark appears twice in the specimen.
Both occurrences are in the middle column in the third and
eighth lines from the bottom on the first page:
Platinum Series
PowerBelt Platinum AeroTip Bullets utilize PowerBond™
technology, a more aggressive bullet shape and a
fluted gas check design that combine to make the
Platinum Series the best performing PowerBelts ever.

PowerBelt Platinums are plated using PowerBond
technology, a proprietary process that creates a
smoother, more uniform surface that reduces the
standard deviation between shots…

Ser. No. 76616320
3

The examining attorney has now refused to register
applicant’s mark on the ground that “the mark as used on
Ser. No. 76616320
4
the specimen merely identifies a process or system and does
not function as a trademark under Trademark Act Sections 1,
2, and 45… Moreover, registration was refused on the ground
that the specimen of use does not show the mark as it is
used in connection with the goods under Sections 1 and 45.”
Brief at 1.
Failure to Function as a Mark
We begin by discussing whether applicant’s term POWER
BOND functions as a trademark. “The question whether the
subject matter of an application for registration functions
as a mark is determined by examining the specimens along
with any other relevant material submitted by applicant
during prosecution of the application.” In re The Signal
Companies, Inc., 228 USPQ 956, 957 (TTAB 1986).
An important function of specimens in a trademark
application is, manifestly, to enable the PTO to
verify the statements made in the application
regarding trademark use. In this regard, the manner
in which an applicant has employed the asserted mark,
as evidenced by the specimens of record, must be
carefully considered in determining whether the
asserted mark has been used as a trademark with
respect to the goods named in the application.

In re Bose Corp., 546 F.2d 893, 192 USPQ 213, 216 (CCPA
1976) (footnote omitted).
The examining attorney argues (Brief at 3-4, reference
to record omitted):
Ser. No. 76616320
5
The specimen shows the applied-for mark used solely to
identify a process or system because the goods
“utilize” and are “plated using POWERBOND2 technology,
a proprietary process that creates a smoother, more
uniform surface that reduces the standard deviation
between shots.” There are no other showings of the
mark in the specimen pages submitted… Thus, the name
of a system or process does not function as a
trademark unless it is also used to indicate the
source of the goods in the application.

On the other hand, applicant argues that the “name of
a process may be a trademark for the goods.” Brief at 3.
Furthermore, “[n]otably therein, one technological feature
is identified as POWERBOND™ with the trademark symbol,
clearly indicating to the public that Applicant considers
POWERBOND to be a trademark for these bullets.” Reply
Brief at 2.
“The Trademark Act is not an act to register mere
words, but rather to register trademarks. Before there can
be registration, there must be a trademark, and unless
words have been so used they cannot qualify.” Bose Corp.,
192 USPQ at 215, citing In re Standard Oil Co., 275 F.2d

2 It is unclear whether applicant’s mark is spelled with or
without a space between the words “Power” and “Bond.” The
drawing and most of the papers in the file, including applicant’s
brief, most often appear to depict the mark with a space and the
examining attorney required a disclaimer of the term “Bond.” See
Examiner’s Amendment dated May 16, 2005. However, applicant’s
reply brief and the examining attorney’s brief (except for the
captions) refer to the mark as POWERBOND and the specimen shows
the term without a space. Inasmuch as the “drawing depicts the
mark sought to be registered” (37 CFR § 2.52), we will refer to
the mark as POWER BOND in this opinion.
Ser. No. 76616320
6
945, 125 USPQ 227 (CCPA 1960). Furthermore, “[w]ishing
does not make a trademark or service mark be.” In re
Morganroth, 208 USPQ 284, 287 (TTAB 1980). “A critical
element in determining whether a term or phrase is a
trademark is the impression the term or phrase makes on the
relevant public.” In re Volvo Cars of North America, Inc.,
46 USPQ2d 1455, 1458 (TTAB 1998).
We point out that there is apparently no disagreement
with applicant’s initial argument that the “name of a
process may be a trademark for goods.” Brief at 3. We do
not understand that the examining attorney is arguing, as
applicant maintains, that “the name of a process may not be
used as a trademark for goods.” Id. For example, the
examining attorney has argued that a mark may be refused
registration if it “merely identifies a process or system”
and “The specimen shows the applied-for mark used solely to
identify a process or system.” Brief at 3 (emphasis
added).3 Accord In re Produits Chimiques Ugine Kuhlmann SA,
190 USPQ 305, 306 (TTAB 1976 (“There is no question but
that if a designation is used to identify services or to
identify both a process and services rendered under the

3 See also Final Office Action at 2 (“Thus the name of a system
or process does not function as a trademark unless it is also
used to indicate the source of the goods in the application… The
specimen shows the applied-for mark used solely to identify a
process or system”).
Ser. No. 76616320
7
process by the proprietor thereof, it constitutes a service
mark within the meaning of the statute”). Therefore, the
question here is whether applicant’s term, which identifies
a process, also functions as a trademark.4
The Bose case is particularly relevant to the issue on
appeal here. In that case, Bose sought to register the
term SYNCOM for loudspeaker systems. The specimens
consisted of “instruction sheets and warranty registration
cards attached to the goods.” 192 USPQ at 214. These
instruction sheets, much like applicant’s “informational
brochures,” were included with the products and they
similarly contained several paragraphs of information
including a few sentences that mentioned the term SYNCOM.
In the text of the specimen, there appears this language:
INTERAUDIO speakers, by taking advantage of the
advanced technology inherent in the ACOUSTICOUPLE™
design and the SYNCOM™ speaker testing computer*,
provide new levels of performance in direct radiating
speakers. Designed and manufactured with the
objective of providing the best overall performance at
their price, INTERAUDIO speakers reproduce music with
a high degree of realism to dramatically increase your
listening enjoyment.

* The SYNCOM computer is used under license from Bose
Corporation.

The Bose specimens follow:

4 Applicant has submitted copies of two registrations for marks
for bullets to show that the “name of a process may be used as a
trademark for goods.” Response dated June 21, 2008 at 1. As
indicated above, this point is not in dispute.
Ser. No. 76616320
8

In that case, the CCPA held that:
Ser. No. 76616320
9
[I]t is quite apparent that, in the specimens of
record, only INTERAUDIO identifies the loudspeaker
systems for high-fidelity music reproduction as
originating with appellant and distinguishes such
goods from those manufactured and sold by others. The
mark SYNCOM merely relates to a speaker-testing
computer. Only INTERAUDIO would be used by purchasers
in asking for the loudspeaker systems set forth in
appellant’s application, and the mark SYNCOM neither
serves as an indication of origin of such goods, nor
serves any other valid trademark function with respect
to such goods. SYNCOM is not used as a trademark with
respect to such goods.

Bose, 192 USPQ at 216.

Similarly, applicant’s mark is embedded in the text of
applicant’s specimen and it simply reports that applicant’s
bullets are made with “PowerBond™ technology”5 much like the
Bose speakers were tested using the SYNCOM speaker-testing
computer. The term POWER BOND refers to the “proprietary
process” used to improve the performance of the POWERBELT
bullets.
We note that in relation to services, the Court of
Customs and Patent Appeals has held that:
The requirement that a mark must be “used in the sale
or advertising of services” to be registered as a
service mark is clear and specific. We think it is
not met by evidence which only shows use of the mark
as the name of a process and that the company is in
the business of rendering services generally, even
though the advertising of the services appears in the
same brochure in which the name of the process is
used. The minimum requirement is some direct

5 The examining attorney’s request that we take judicial notice
of his submitted definition of the term “technology” is granted.
Ser. No. 76616320
10
association between the offer of services and the mark
sought to be registered therefore.

In re Universal Oil Prods. Co., 476 F.2d 653, 177 USPQ 456,
457 (CCPA 1973) (emphasis omitted).
Regarding trademarks, the Trademark Act requires that
a mark is used in commerce when “it is placed in any manner
on the goods or their containers or the displays associated
therewith or on the tags or labels affixed thereto.” 15
U.S.C. § 1127. As in Universal Oil, trademark use for the
goods “is not met by evidence which only shows use of the
mark as the name of a process.” Even if we assume that
applicant’s specimen is a proper specimen, the term POWER
BOND does not function as a trademark to identify
applicant’s bullets. It simply identifies the process used
to enhance the performance of the bullets. The case of In
re Big Stone Canning Co., 169 USPQ 815 (TTAB 1971) is
instructive. In that case, the mark FLASH COOK clearly
appeared on the top of canned vegetables. However, the
board held that: “As the mark is used on the containers
for the goods it is apparent that it refers to a particular
process rather than serves to identify” applicant’s canned
vegetables. 169 USPQ at 816. Despite being used on the
containers for the goods, the term FLASH COOK was held not
Ser. No. 76616320
11
to function as a trademark but rather it referred to the
method of preparing the vegetables.
Thus, the “mere fact that a designation appears on the
specimens of record does not make it a trademark.” In re
Aerospace Optics Inc., 78 USPQ2d 1861, 1862 (TTAB 2006).
See also Bose, 192 USPQ at 216 (SYNCOM used on instruction
sheets did not function as a trademark for loudspeaker
systems. “[I]t is quite apparent that, in the specimens of
record, only INTERAUDIO identifies the loudspeaker systems
for high-fidelity music reproduction as originating with
appellant and distinguishes such goods from those
manufactured and sold by others. The mark SYNCOM merely
relates to a speaker-testing computer”). Accord In re
Moody’s Investors Service, Inc., 13 USPQ2d 2043, 2049 (TTAB
1989):
That is, the significance of the symbols, as they are
used in the specimens, is that of rating symbols
(i.e., indications of applicant’s opinion of the
investment quality of debt instruments), not service
marks. While it is not inconceivable that a
particular designation could be used, and therefore
function, both as a rating symbol and as a trademark
or service mark, applicant’s designation “Aaa” is not
so used in the specimens of record.6

6 The board indicated that it was “inclined to agree” with the
examining attorney’s point that the designations appear to be
registrable as certification marks. 13 USPQ2d at 2043 n.5.
Ser. No. 76616320
12
Here, we agree that consumers seeing the term POWER
BOND in the sentences “PowerBelt Platinum AeroTip Bullets
utilize PowerBond™ technology” and “PowerBelt Platinums are
plated using PowerBond technology” would not understand the
term to be a trademark for the goods but rather a term that
describes how the goods were made in much the same way that
the term FLASH COOK referred to how the canned vegetables
were prepared in Big Stone Canning. Therefore, we affirm
the examining attorney’s refusal to register on the ground
that applicant’s term does not function as a trademark.
Specimen
The Trademark Act requires that applications that are
based on use must include: “Such numbers of specimens or
facsimiles of the mark as used as may be required by the
Director.” 15 U.S.C. § 1051(a)(1). A trademark is used in
commerce when “it is placed in any manner on the goods or
their containers or the displays associated therewith or on
the tags or labels affixed thereto.” 15 U.S.C. § 1127.
See also 37 CFR § 2.56(b)(1) (“A trademark specimen is a
label, tag, or container for the goods, or a display
associated with the goods”). However, “[n]ot every word,
name, phrase, symbol or design, or combination thereof
which appears on a product functions as a trademark.” In
re Pro-Line Corp., 28 USPQ2d 1141, 1142 (TTAB 1993). See
Ser. No. 76616320
13
also In re Gilbert Eiseman, P.C., 220 USPQ 89, 90 (TTAB
1983) (“It is established that when a designation or slogan
imparts an impression of conveying advertising or
promotional information rather than of distinguishing or
identifying the source of goods or services, it cannot be
the basis for registration”). “The starting point for this
analysis is the specimen submitted to show use of the mark.
We must determine whether the specimen is mere advertising
or whether, in addition to advertising, the specimen is
also a display associated with the goods.” In re
Osterberg, 83 USPQ2d 1220, 1222 (TTAB 2007).
The examining attorney argues that the specimen is not
acceptable because “[p]ackage inserts such as invoices,
announcements, order forms, and the like are not acceptable
specimens to use on goods.” Brief at 6. According to the
examining attorney, applicant’s specimen is not acceptable
“because it consists of advertising material for goods.”
Brief at 5. In response, applicant argues that the “fact
that the brochure is informational, and therefore
instructional, plus the established fact that Applicant’s
brochure is clearly always associated with the goods,
satisfies the statutory requirements for use of the mark
‘on or with’ the goods.” Reply Brief at 2-3. While the
examining attorney describes the brochure as being
Ser. No. 76616320
14
advertising, applicant has provided a declaration (¶ 1)
from Daniel Hall of its technical department who stated
that the brochure “is put in every package of the company’s
POWER BELT® bullets.”
“[I]nvoices, announcements, order forms, bills of
lading, instruction sheets as well as other types of
leaflets and brochures… do not constitute acceptable
specimens of use of a mark referred to therein as a
trademark for goods.” In re Bright of America, Inc., 205
USPQ 63, 71 (TTAB 1979). However, we point out that not
all materials that are included in packaging for the goods
are necessarily unacceptable as specimens. Compare In re
Chicago Rawhide Mfg. Co., 455 F.2d 563, 173 USPQ 8, 9 (CCPA
1972) (“We find nothing more than use of the mark on a
carbon copy of an invoice which copy accompanies the goods
‘in containers in which the goods are shipped.’ Such does
not constitute use on the goods as required by the clear
and unambiguous language of section 45 of the Lanham Act”)
with In re Ultraflight Inc., 221 USPQ 903, 906 (TTAB 1984)
(“[A]pplicant concedes that placing its mark on instruction
manuals packed with the goods is not use in the manner of a
display associated with the goods. Applicant’s position
is, rather, that such use of the mark is an affixation of
the mark to the goods themselves. We agree”). While
Ser. No. 76616320
15
applicant argues that its brochure is “instructional,” this
is not the critical point. It is not unusual for various
products to have instructional materials included with
them. This fact does not convert all of these materials
into acceptable specimens. See, e.g., Bright of America,
205 USPQ at 71 (“[I]nstruction sheets … do not constitute
acceptable specimens of use”). The critical distinction is
if the instructional manual such as the manual for the
Ultraflight powered hang-glider is considered the goods
themselves. The manual for operating a hang-glider was
considered use on the goods themselves. The Ultraflight
“assembly instruction manual,” which was sold as part of a
kit, was “as much a part of applicant’s goods as are the
various parts that are used to build the gliders.” 221
USPQ at 906. We cannot come to the same conclusion for
applicant’s brochure that accompanies applicant’s packages
of bullets. While it does provide some information about
the bullets, it appears to be an advertising brochure.
See, e.g., “PowerBelt Bullets are available in three
different performance grades, with all three designed to
deliver the same benefits that have made PowerBelt the #1
muzzleloading bullets in America. Once you shoot
PowerBelts, you’ll see why they’re the bullets that made
sabots obsolete.” We conclude that applicant’s brochure is
Ser. No. 76616320
16
not an integral part of the goods themselves, such as the
Ultraflight’s assembly instruction manual. Instead, it is
typical advertising and informational material often
included with goods and, under Bright of America, it is not
an acceptable specimen.
The next question is whether applicant’s specimen is a
display associated with the goods. Applicant argues that
“the established fact that Applicant’s brochure is clearly
always associated with the goods, satisfies the statutory
requirements for the use of the mark ‘on or with’ the
goods.” Reply Brief at 3 (emphasis added).
A display associated with the goods within the scope
of Section 45… comprises essentially point-of-sale
material such as banners, shelf-talkers, window
displays, menus, or similar devices which are designed
to catch the attention of purchasers and prospective
purchasers as an inducement to consummate a sale and
which prominently display the mark in question and
associate it or relate it to the goods in such a way
that an association of the two is inevitable.

In re Bright of America, Inc., 205 USPQ 63, 71 (TTAB 1979).
Inasmuch as applicant has not argued that its specimen is
used in the manner of device “designed to catch the
attention of purchasers.” Its advertising and
instructional inserts would not constitute acceptable
displays associated with the goods. Bright of America, 205
USPQ at 7. See also Osterberg, 83 USPQ2d at 1224
(“[A]pplicant’s webpage is simply advertising or
Ser. No. 76616320
17
promotional material and it does not constitute a display
used in association with the goods”).
Additionally, we point out that even if applicant’s
specimen was an acceptable type of specimen, applicant’s
use of the term in sentences that appear in the text of the
page would not lead purchasers to conclude that the term
POWER BOND is a trademark for applicant’s bullets.
Osterberg, 83 USPQ2d at 1223 (“Buried in the middle of the
text is the purported mark. CondomToy condom is not so
prominently displayed in the website that customers will
easily associate the mark with the products. While the
mark is printed in bold type, so are the [other] terms”).
“[T]he mark must be used in such a manner that it would be
readily perceived as identifying the specified goods and
distinguishing a single source or origin for the goods”).
Consumers reading applicant’s brochure and finally
encountering the term “PowerBond” would understand the term
to refer to a process of plating the bullets not the source
of the bullets.
Finally, while applicant has used the TM symbol, at
least once, on the material it submitted as a specimen, the
use of the use of the letters “TM” or “SM” does not by
itself convert a term that does not function as a trademark
or service mark on the specimens into one that does. In re
Ser. No. 76616320
18
Crystal Geyser Water Co., 85 USPQ2d 1374, 1379 n.4 (TTAB
2007) (“We further note that use of the TM designation does
not in itself elevate descriptive matter to a trademark”);
Osterberg, 83 USPQ2d at 1223 n.4 (“The mere use of a
superscript ‘tm’ cannot transform a nontrademark term into
a trademark”); and In re Caserta, 46 USPQ2d 1088, 1090
(TTAB 1998).
Ultimately, we conclude that applicant’s term POWER
BOND does not function as a trademark for applicant’s
bullets and the specimens of record are not acceptable
because they are advertising and not use of the mark on the
goods or displays associated with applicant’s goods.
Decision: The refusals to register are affirmed.