SeaSource, Inc.

Trademark Trial and Appeal Board

Feb 21, 2014

No. 85334025 (T.T.A.B. Feb. 21, 2014)

Mailed:
Feb. 21, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re SeaSource, Inc.
________

Serial No. 85334025
_______

Robert R. Mallinckrodt of Thorpe North & Western LLP for
SeaSource, Inc.

Aisha L. Cassis, Trademark Examining Attorney, Law Office
116 (Michael W. Baird, Managing Attorney).
_______

Before Quinn, Grendel and Mermelstein, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

SeaSource, Inc. (“applicant”) seeks registration on
the Principal Register of the mark SEASOURCE, INC. GROUND
WATER SAFE FERTILIZERS (in standard character form; “INC.”
disclaimed), for goods identified in the application as
“fertilizer.”1

1 Serial No. 85334025, filed on May 31, 2011. The application is
based on use in commerce under Trademark Act Section 1(a), 15
U.S.C. §1051(a). September 15, 1995 is alleged in the
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Ser. No. 85334025
2
The Trademark Examining Attorney has issued a final
refusal to register applicant’s mark, based on applicant’s
failure to comply with her requirement for a disclaimer of
the wording GROUND WATER SAFE FERTILIZERS. See Trademark
Act Section 6(a), 15 U.S.C. §1056(a). The Trademark
Examining Attorney bases her disclaimer requirement on her
contention that this wording in applicant’s mark is merely
descriptive of the goods identified in the application,
i.e., “fertilizer.” See Trademark Act Section 2(e)(1), 15
U.S.C. §1052(e)(1). She contends that the mark therefore
is unregistrable on the Principal Register without a
disclaimer of that wording.
In response to the Trademark Examining Attorney’s
disclaimer requirement, applicant has amended its
application to assert a claim that the wording GROUND WATER
SAFE FERTILIZERS in its mark has acquired distinctiveness
under Trademark Act Section 2(f), 15 U.S.C. §1052(f), and
that the mark therefore is registrable on the Principal
Register without a disclaimer of that wording.
The Trademark Examining Attorney in turn has made her
disclaimer requirement and refusal final, contending that
the wording GROUND WATER SAFE FERTILIZERS in applicant’s

application to be the date of first use of the mark and the date
of first use of the mark in commerce.
Ser. No. 85334025
3
mark is so highly descriptive as applied to applicant’s
goods that applicant’s Section 2(f) showing is
insufficient, and that the requirement for a disclaimer of
that wording therefore is proper.
The issue on appeal in this case is whether the
wording GROUND WATER SAFE FERTILIZERS in applicant’s mark
has acquired distinctiveness as used on applicant’s goods,
such that applicant’s mark is registrable on the Principal
Register without a disclaimer of that wording.

Trademark Act Sections 6(a), 2(e)(1) and 2(f).
In pertinent part, Trademark Act Section 6(a) provides
that “[t]he Director may require the applicant to disclaim
an unregistrable component of a mark otherwise
registrable.” “A disclaimer is a statement that the
applicant or registrant does not claim the exclusive right
to use a specified element or elements of the mark in a
trademark application or registration. ‘The effect of a
disclaimer is to disavow any exclusive right to the use of
a specified word, phrase, or design outside of its use
within a composite mark.’” In re White Jasmine LLC, 106
USPQ2d 1385, 1394 (TTAB 2013), quoting from In re Franklin
Press, Inc., 597 F.2d 270, 201 USPQ 662, 665 (CCPA 1979).
Ser. No. 85334025
4
Trademark Act Section 2(e)(1) provides that a mark (or
portion thereof) is unregistrable on the Principal Register
if, “when used on or in connection with the goods of the
applicant [it] is merely descriptive or deceptively
misdescriptive of them … .”
Because merely descriptive wording is unregistrable on
the Principal Register under Trademark Act Section 2(e)(1),
such wording is subject to disclaimer if the mark is
otherwise registrable. See In re Richardson Ink Co., 511
F.2d 559, 185 USPQ 46 (CCPA 1975); In re RiseSmart Inc.,
104 USPQ2d 1931 (TTAB 2012). Failure to comply with a
proper disclaimer requirement is a ground for refusal of
registration of the entire mark. See In re Stereotaxis
Inc., 429 F.3d 1039, 77 USPQ2d 1087 (Fed. Cir. 2005); In re
RiseSmart Inc., supra.
Pursuant to Trademark Act Section 2(f), matter which
is merely descriptive under Trademark Act Section 2(e)(1)
may nonetheless be registered on the Principal Register if
it “has become distinctive of the applicant’s goods in
commerce.”2 Thus, the requirement for a disclaimer of
merely descriptive matter in the applicant’s mark may be

2 In pertinent part, Trademark Act Section 2(f) provides:
“Except as expressly excluded in subsections (a), (b), (c), (d),
(e)(3), and (e)(5) of this section, nothing herein shall prevent
the registration of a mark used by the applicant which has become
distinctive of the applicant’s goods in commerce.”
Ser. No. 85334025
5
overcome, and the mark may be registered on the Principal
Register without such disclaimer, if the applicant proves
that the merely descriptive matter has acquired
distinctiveness (also known as “secondary meaning”) as used
on the applicant’s goods in commerce. See In re Chopper
Indus., 222 USPQ 258 (TTAB 1984).
The applicant seeking registration of a mark (or
portion of a mark) under Section 2(f) bears the ultimate
burden of establishing acquired distinctiveness. See In re
Hollywood Brands, Inc., 214 F.2d 139, 102 USPQ 294, 295
(CCPA 1954)(“There is no doubt that Congress intended that
the burden of proof under [Section 2(f)] should rest upon
the applicant for registration….”). See also Yamaha Int’l
Corp. v. Hoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d 1001,
1005 (Fed. Cir. 1988). Applicant’s burden is to prove
acquired distinctiveness by a preponderance of the
evidence. See In re Noon Hour Food Products Inc., 88
USPQ2d 1172, 1181 (TTAB 2008).
“Finally, the applicant’s burden of showing acquired
distinctiveness increases with the level of
descriptiveness; a more descriptive term requires more
evidence of secondary meaning.” In re Steelbuilding.com,
415 F.3d 1293, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005). As
the Board has explained:
Ser. No. 85334025
6
That is to say, the greater the degree of
descriptiveness, the greater the evidentiary burden
on the user to establish acquired distinctiveness.
The sufficiency of the evidence offered to prove
acquired distinctiveness should be evaluated in
light of the nature of the designation. Highly
descriptive terms, for example, are less likely to
be perceived as trademarks and more likely to be
useful to competing sellers than are less
descriptive terms. More substantial evidence of
acquired distinctiveness thus will ordinarily be
required to establish that such terms truly function
as source-indicators.

In re Greenliant Systems Ltd., 97 USPQ2d 1078, 1085 (TTAB
2010)(internal citations omitted).

GROUND WATER SAFE FERTILIZERS is Highly Descriptive of
Applicant’s Goods.

The initial question before us in our analysis of
whether GROUND WATER SAFE FERTILIZERS has acquired
distinctiveness is the degree of descriptiveness of that
wording as applied to applicant’s goods. As noted above,
the higher the degree of descriptiveness of the designation
in question, the higher the burden applicant faces in
proving acquired distinctiveness.
A term is considered to be merely descriptive under
Section 2(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 In re Chamber of
Ser. No. 85334025
7
Commerce of the United States of America, 675 F.3d 1297,
102 USPQ2d 1217 (Fed. Cir. 2012).
By amending its application to seek registration of
the wording GROUND WATER SAFE FERTILIZERS pursuant to
Section 2(f), applicant has conceded that this wording is
at the least merely descriptive of its goods, under Section
2(e)(1). See In re RiseSmart Inc., supra, 104 USPQ at 1932
(“…when an applicant responds to a refusal based on mere
descriptiveness of a mark, or portion of a mark, by
claiming acquired distinctiveness, such amendment to seek
registration under Section 2(f) of the Trademark Act is
considered an admission that the proposed mark is not
inherently distinctive.”). See also The Cold War Museum,
Inc. v. Cold War Air Museum, Inc., 586 F.3d 132, 92 USPQ2d
1626, 1629 (Fed. Cir. 2009).
For the reasons discussed below, we find that the
wording GROUND WATER SAFE FERTILIZERS in applicant’s mark
is not only merely descriptive but in fact is highly
descriptive of applicant’s goods, i.e., “fertilizer.”
The record includes dictionary evidence which shows
that “fertilizer” is defined as “a natural or chemical
Ser. No. 85334025
8
substance added to soil in order to help plants grow.”3 The
dictionary evidence of record also shows that “ground
water” (also “groundwater”) is defined as “the water
beneath the surface of the ground, consisting largely of
surface water that has seeped down; the source of water in
springs and wells.”4 The dictionary evidence of record also
shows that “safe” is defined, inter alia, as “not likely to
cause damage, injury or harm.”5
Based on these dictionary definitions, we find, first,
that the word FERTILIZERS in applicant’s mark is the
generic name of applicant’s goods, i.e., “fertilizer,” and
that it neither has nor can have source-indicating
significance in the wording GROUND WATER SAFE FERTILIZERS
(or in applicant’s mark as a whole). We also find that the
wording GROUND WATER SAFE in applicant’s mark is highly
descriptive of applicant’s goods. That is, we find that
when it is taken together with the generic word

3 Macmillan Dictionary (2010), at
http://www.macmillandictionary.com. (Sept. 15, 2011 Office
Action.)

4 Dictionary.com Unabridged Random House, Inc., at
http://dictionary.reference.com/browse/ground+water. (Sept. 15,
2011 Office Action.)

5 Macmillan Dictionary (2010), at
http://www.macmillandictionary.com. (Sept. 15, 2011 Office
Action.)

Ser. No. 85334025
9
FERTILIZERS, the wording GROUND WATER SAFE directly and
immediately indicates that applicant’s fertilizer is “safe”
for the ground water, i.e., that the fertilizer “is not
likely to cause damage, injury or harm” to the ground
water.
In addition to this dictionary evidence, the
Traademark Examining Attorney has submitted Internet
evidence which further establishes the highly descriptive
nature of the wording GROUND WATER SAFE FERTILIZERS as
applied to applicant’s goods.
First, the evidence shows that preventing ground water
contamination by fertilizers is an important environmental
concern today. The website of the Virginia Cooperative
Extension explains:6
Until recently, groundwater was thought to be immune
to the many chemicals, such as fertilizers and
pesticides, which we use on our lawns and gardens.
It was only 20 years or so ago that we made the link
between what we do on the land surface and what we
find in our groundwater supplies. Groundwater
becomes contaminated when water percolating through
the soil carries pollutants downward to the water
table. … Fertilizers, pesticides and other
chemicals that reach an aquifer may make it unusable
as a drinking water source. Because of the slow
movement of groundwater, it may take decades for a
contaminant to be naturally diluted or removed, and
for this reason, preventing contamination of
groundwater is of primary importance.

6 http://pubs.ext.jt/edu. (July 5, 2012 Final Office Action.)

Ser. No. 85334025
10
We also note in this regard that, in his second declaration
in support of applicant’s Section 2(f) claim,7 applicant’s
president Russell Stowell acknowledged that “a keener
awareness and appreciation of environmental safety has
developed in the fertilizer industry,” and that “[l]eaching
fertilizer into lakes, ponds, oceans and ground water has
become a mainstream concern by growers and fertilizer
producers.”
Next, the record shows that fertilizer manufacturers
today often tout their products’ capability of preventing
ground water contamination as an important and desirable
feature of their products. For example, a company called
Converted Organics claims that its fertilizers “work in
harmony with nature and will not contaminate ground water,
the source of our drinking water.”8 A company called
Nature’s Finest Seed claims that its fertilizer “will not
lead to groundwater pollution problems.”9 A company called
Johnsons Way claims that its fertilizer is “safer for the
environment, helps eliminate harmful groundwater
pollution.”10 A company called Itronics, in referring to

7 January 7, 2012 Response to Office Action.

8 www.convertedorganics.com. (January 3, 2012 Office Action.)

9 www.naturesfinestseed.com. (January 3, 2012 Office Action.)

10 www.johnsonsway.com. (July 5, 2012 Final Office Action.)
Ser. No. 85334025
11
its fertilizer product, asserts that “the outcome is
improved crop productivity, improved soils, and reduced
risk of run-off and groundwater contamination by the
fertilizers.”11
Next, the record also shows commercial and non-
commercial usage of the very words “groundwater safe” in a
highly descriptive manner in connection with fertilizers.
A company called Grigg Brothers, in referring to its 10-2-4
All Natural Organic™ fertilizer, states: “… 10-2-4
provides an excellent compliment [sic] to a Grigg Brothers
foliar feeding program and is groundwater safe, has no burn
potential and is all organic.” (Emphasis added.)12 A
company called Best Organic Fertilizer claims that its
fertilizers are formulated so as to “help keep your
groundwater safe because there aren’t excesses that will
leach into the water.” (Emphasis added.)13 The Chichester
Conservation Commission (Town of Chichester, New Hampshire)
states on its website that “Prudent use of fertilizers and
pesticides … can go a long way to keeping our groundwater

11 www.itronics.com. (July 5, 2012 Final Office Action.)

12 www.griggbros.com. (January 3, 2012 Office Action.)

13 www.best-organic-fertilizer.com. (January 3, 2012 Office
Action.)

Ser. No. 85334025
12
safe.” (Emphasis added.)14 The March 9, 2012 online
newsletter of a company called HellaWella states that “The
National Groundwater Association offers the following
pledge for keeping groundwater safe: I pledge to take one
or more of the following actions to protect groundwater
from contamination….” (Emphasis added.)15
Finally, the record also includes evidence arguably
showing usage of the words “groundwater safe” as a term of
art in the industry, i.e., as the name of a recognized
category of fertilizer. A company called ADP Consulting
Inc., in referring to its “Green Fertilizer Program,”
states: “Our granular fertilizers have been designated
‘groundwater safe’ for the State of California.” (Emphasis
added.)16
Based on this dictionary and Internet evidence, we
find that the wording GROUND WATER SAFE FERTILIZERS in
applicant’s mark is highly descriptive of applicant’s
goods, i.e., “fertilizer.” This wording consists simply of
the generic word FERTILIZERS, modified by the highly
descriptive designation GROUND WATER SAFE. See In re King
Koil Licensing Co., 79 USPQ2d 1048 (TTAB 2006)(finding

14 www.chichesternh.org. (January 9, 2013 Denial of Request for
Reconsideration.)

15 www.hellawella.com. (January 3, 2010 Office Action.)

Ser. No. 85334025
13
that, as applied to mattresses, the combination of the
highly descriptive word BREATHABLE with the generic word
MATTRESS into the composite BREATHABLE MATTRESS results in
a composite that itself is highly descriptive); In re Half
Price Books, Records, Magazines, Inc., 225 USPQ 219 (TTAB
1984)(finding the designation HALF PRICE BOOKS, RECORDS,
MAGAZINES to be highly descriptive of and indeed the “apt
descriptive name” of “retail book and record store
services,” because it merely combines the generic words
BOOKS, RECORDS, MAGAZINES with the highly descriptive
modifier HALF PRICE).

The Highly Descriptive Wording GROUND WATER SAFE
FERTILIZERS Has Not Acquired Distinctiveness.

We turn now to the question of whether applicant has
established that the highly descriptive wording GROUND
WATER SAFE FERTILIZERS in its mark has acquired
distinctiveness for purposes of Section 2(f), such that the
Trademark Examining Attorney’s requirement for a disclaimer
of that wording is overcome. As noted above, applicant
bears the ultimate burden of proving acquired
distinctiveness, by a preponderance of the evidence.

16 www.adpconsultinginc.com (January 3, 2012 Office Action.)
Ser. No. 85334025
14
Because we have found that the wording GROUND WATER
SAFE FERTILIZERS is highly descriptive of applicant’s
goods, applicant’s burden of establishing acquired
distinctiveness under Section 2(f) likewise is very high.
See In re Steelbuilding.com, supra; In re Greenliant
Systems Ltd., supra.
“To show that a mark [or portion of a mark] has
acquired distinctiveness, an applicant must demonstrate
that the relevant public understands the primary
significance of the mark [or portion of the mark] as
identifying the source of a product or service rather than
the product or service itself.” In re Steelbuilding.com,
supra, 75 USPQ2d at 1422. See also Coach Services Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1721, 1729
(Fed. Cir. 2012).
In support of its Section 2(f) claim that the wording
GROUND WATER SAFE FERTILIZERS in its mark has acquired
distinctiveness as a source-indicator for its fertilizer,
applicant has submitted: two declarations of its
president, Russell Stowell; photographs of applicant’s
packaging (a fertilizer bag) attached as exhibits to Mr.
Stowell’s first declaration; and five third-party
declarations from individuals involved in the fertilizer
industry and/or nursery industry, including retailers of
Ser. No. 85334025
15
applicant’s fertilizer. Our ultimate Section 2(f) analysis
and determination in this case will be based on all of this
evidence considered as a whole.

No Evidence of Advertising and Promotional Efforts.
Before we reach the evidence applicant in fact has
submitted, however, we will note a category of Section 2(f)
evidence that applicant significantly has failed to
provide. That is, applicant has submitted no evidence as
to the nature and extent of applicant’s advertising and
promotional efforts or expenditures, if any, in connection
with its use of the wording GROUND WATER SAFE FERTILIZERS
in the marketing and sale of its fertilizer. The absence
of such obviously relevant Section 2(f) advertising and
promotional evidence is not dispositive on the issue of
acquired distinctiveness. However, we find that the
absence of such evidence in this case significantly
detracts from applicant’s claim that relevant purchasers
have been conditioned to recognize and would readily
recognize and use this wording as an indication of the
source of applicant’s goods. Certainly, the absence of
such evidence pertaining to advertising and promotion of
this wording does nothing to affirmatively support
Ser. No. 85334025
16
applicant’s ultimate burden of proving acquired
distinctiveness.

Duration of Use.
In his first Section 2(f) Declaration,17 applicant’s
president Russell Stowell states that he has been
applicant’s president since 1992, and that he is personally
aware of the history of applicant’s use of the phrase
GROUND WATER SAFE FERTILIZERS as part of its mark in
connection with its fertilizers. He states, and we will
find based on that statement, that applicant has made
continuous use of this wording in connection with its
fertilizers since September 15, 1995.
However, we also find that the persuasive value of the
fact that applicant has used the wording GROUND WATER SAFE
FERTILIZERS for eighteen years is greatly attenuated by
other evidence of record, discussed below, which reveals
the actual nature and extent of such use by applicant over
that period of time. Cf. In re Packaging Specialists,
Inc., 221 USPQ 917, 920 (TTAB 1984)(use of mark for sixteen
years deemed “a substantial period but not necessarily
conclusive or persuasive on the Section 2(f) showing”).

17 Applicant’s December 30, 2011 Response to Office Action.

Ser. No. 85334025
17

Actual Use On Applicant’s Packaging.

The only evidence of record which shows the manner in
which applicant actually uses or has used the wording
GROUND WATER SAFE FERTILIZERS in connection with its goods
over the past eighteen years consists of photographs of a
fertilizer bag in which its fertilizer is packaged, a
representative example of which is reproduced below.18

18 These photographs were submitted with Mr. Stowell’s first
Section 2(f) Declaration.
Ser. No. 85334025
18

Although not easily discernable in these photographs,
a small “TM” symbol appears after the wording “Ground water
safe fertilizers.” Applicant specifically and repeatedly
points to this use of the “TM” symbol in support of its
claim of acquired distinctiveness. However, it is settled
that the use of the “TM” symbol in connection with the
matter at issue does not transform an otherwise
unregistrable designation into a mark. See, e.g., In re
Crystal Geyser Water Co., 85 USPQ2d 1374, 1379 n.4 (TTAB
2007)(“use of the TM designation does not in itself elevate
descriptive matter to a trademark” for purposes of
determining acquired distinctiveness); In re Active Ankle
Systems Inc., 83 USPQ2d 1532, 1538 n.5 (TTAB 2007); In re
Remington Products Inc., 3 USPQ2d 1714 (TTAB 1987).19
Next, we find that the manner in which applicant
displays the wording GROUND WATER SAFE FERTILIZERS on the
bag itself contributes little or nothing to any claimed
source-indicating significance for that wording, and in

19 Cf. In re Mine Safety Appliances Co., 66 USPQ2d 1694, 1700
(TTAB 2002)(the use of the “TM” symbol by applicant in connection
with its advertising and promotional materials might be evidence
of applicant’s attempts and intent to educate the trade and
purchasing public that it regards the designation at issue as its
trademark, but “it is well settled that use of the symbol “TM” in
connection with otherwise unregistrable matter does not make such
matter a trademark … .”)

Ser. No. 85334025
19
fact tends to support the opposite conclusion. As
displayed on the bag, this phrase looks not like a source-
indicator but rather like nothing more than descriptive and
informational wording. This is because aside from the
capital-letter “G” in the opening word “ground,” the rest
of the words are depicted entirely in lower-case letters,
rather than in capital- and lower-case letters or in all
capital letters, which is the more common usage indicating
trademark significance. See, e.g., In re Country Music
Ass’n Inc., 100 USPQ2d 1824, 1831 (TTAB 2011)(finding that
“in the English language, initial capitalization of a term
or phrase is generally used to designate a brand name, as
opposed to a generic term”). See also Goodyear Tire &
Rubber Co. v. Continental General Tire Inc., 70 USPQ2d
1067, 1076 (TTAB 2003)(“All relevant uses in this record by
applicant place the word “Intelligent” immediately before
the generic designation “tire” (e.g., “Intelligent Tire”).
The adjective in this context could be proper trademark
usage or could be merely descriptive usage. Applicant's
use of the term in lower case letters on its website …
suggests the latter.”)
This is not to say that use of such lower-case wording
necessarily precludes a finding that the wording lacks
trademark significance in all cases. However, we find in
Ser. No. 85334025
20
the present case that the lower-case manner in which the
highly descriptive wording “Ground water safe fertilizers”
is depicted on applicant’s package is unlikely to be
perceived as a source-indicator, but rather as merely
informational matter. This manner of usage detracts from a
finding that the wording in question has acquired
distinctiveness.
In short, the only evidence in the record which shows
how applicant actually uses or has used the wording GROUND
WATER SAFE FERTILIZERS during the past eighteen years is
the photographs of the fertilizer bag in which the goods
are packaged, an example of which is reproduced above. For
the reasons discussed above, we find that this manner of
usage on the packaging provides little or no support for
applicant’s claim that the highly descriptive wording
GROUND WATER SAFE FERTILIZERS has acquired distinctiveness
as a trademark, for purposes of Section 2(f).

Applicant’s Sales.
In his second Section 2(f) Declaration,20 Mr. Stowell
states that applicant’s sales since 1995 of its fertilizer
are as follows:

20 Submitted with applicant’s January 7, 2013 Response to Office
Action.
Ser. No. 85334025
21
1995: $161,033 2003: $671,291
1996: $199,509 2004: $692,580
1997: $115,732 2005: $1,270,174
1998: $161,870 2006: $1,467,794
1999: $188,412 2007: $2,152,201
2000: $496,370 2008: $2,597,470
2001: $283,117 2009: $1,764,911
2002: $769,357 2010: $877,718
2011: $587,853

Mr. Stowell further states with respect to applicant’s
sales that:
Sales under the mark take place throughout the
United States and worldwide. The decrease in sales
indicated since 2008 results from a substantial
increase in sales by SeaSource, Inc. of private
labeled fertilizers to large customers. This has
resulted in a decrease in sales of individual
packages of SeaSource, Inc.’s own branded packages
of fertilizers including the mark GROUND WATER SAFE
FERTILIZERS. However, sales of SeaSource, Inc.’s
own branded packages of fertilizers including the
mark GROUND WATER SAFE FERTILIZERS continue and
there is no intention at SeaSource, Inc. of
abandoning such sales. Further, in marketing our
fertilizers to distributors for private label sales,
SeaSource, Inc. continues to market such fertilizers
to distributors and other large customers and
potential customers using the mark GROUND WATER SAFE
FERTILIZERS, which, to my knowledge, is recognized
as indicating the source of the fertilizers as being
applicant, SeaSource, Inc.

Based on Mr. Stowell’s declaration, we find that
applicant’s sales totaled approximately $14.5 million
between 1995 and 2011. We find, however, that these sales
figures provide only limited support for applicant’s claim
of acquired distinctiveness in this case.
Ser. No. 85334025
22
First, Mr. Stowell’s declaration states that these
sales include “worldwide” sales. We find that applicant’s
asserted sales outside the United States have no probative
value on the question of whether applicant’s mark has
acquired distinctiveness among relevant purchasers in the
United States.21 Mr. Stowell’s declaration does not
indicate what percentage of applicant’s sales have been
sales in the United States, nor does it show the dollar
value of those sales.
Second, the probative value of the sales numbers set
forth in Mr. Stowell’s declaration is limited by the fact
that they are raw numbers, providing no context showing
applicant’s market share and whether the stated amount of
such sales is significant in the industry. See Target
Brands Inc. v. Hughes, 85 USPQ2d 1676, 1681 (TTAB
2007)(“The sales figures for 14 years, standing alone and
without any context in the trade, are not so impressive as
to elevate applicant’s highly descriptive designation to
the status of a distinctive mark”).
Third, Mr. Stowell indicates in his declaration that,
since 2008, applicant has increasingly sold its fertilizer

21 Trademark Act Section 2(f) specifies that it covers marks which
have become distinctive of the applicant’s goods “in commerce.”
Cf. Trademark Manual of Examining Procedure (TMEP) (Oct. 2013) at
§1212.06(a): “To support a §2(f) claim, use of the mark must be
Ser. No. 85334025
23
for private label use by third parties, apparently in
packaging which, unlike the bag depicted above, does not
bear the designation GROUND WATER SAFE FERTILIZERS. Mr.
Stowell states that, as to these private label sales,
applicant “continues to market such fertilizers to
distributors and other large customers and potential
customers using the mark GROUND WATER SAFE FERTILIZERS ….”
However, he does not indicate specifically (or even
generally) what such “marketing” of fertilizers “using” the
designation entails. As noted above, there is no evidence
as to the actual extent or manner, if any, in which
applicant uses the designation in advertising its goods.
Finally, Mr. Stowell states that, since 2008,
applicant has continued selling applicant’s own branded
packages of fertilizers including the mark GROUND WATER
SAFE FERTILIZERS (presumably similar to the bag depicted
above), but he does not indicate the actual amount or
extent of such sales or their percentage of applicant’s
total sales.
In short, we find that applicant’s evidence regarding
the amount of its sales of fertilizer using the designation
GROUND WATER SAFE FERTILIZERS is of limited value as

use in commerce, as defined in 15 U.S.C. §1127.” See also, In re
Howard Leight Indus., LLC, 80 USPQ2d 1507, 1517 n.12 (TTAB 2006).
Ser. No. 85334025
24
support for applicant’s claim of acquired distinctiveness
as to that designation.

Exclusivity of Use.
In his second Section 2(f) Declaration,22 applicant’s
president Mr. Stowell states: “I coined the phrase ‘GROUND
WATER SAFE FERTILIZERS’ for use as a trademark on
fertilizers produced by applicant SeaSource, Inc. When I
coined the phrase, I was not aware of any uses of or
references to ‘GROUND WATER SAFE FERTILIZERS’ in connection
with fertilizers.” He also states that “other fertilizer
manufacturers now promote their fertilizers using
environmental safety wording, but I am not aware of any
other fertilizer companies using the term, ‘ground water
safe fertilizers,’ unless they are fertilizers that are
manufactured by SeaSource, Inc.” As discussed below,
applicant also has submitted the Section 2(f) declarations
of five individuals in the fertilizer industry who assert,
inter alia, that aside from applicant, they know of no
other fertilizer manufacturer or seller which uses the

22 Applicant’s January 7, 2012 Response to Office Action.

Ser. No. 85334025
25
phrase “ground water safe fertilizers” in connection with
fertilizer.23
However, even assuming that applicant may be the first
and/or only user of the exact wording GROUND WATER SAFE
FERTILIZERS in the fertilizer industry, we find that it
does not negate the highly descriptive nature of the
wording or suffice to establish acquired distinctiveness in
this case. See In re Greenliant Systems Ltd., supra, 97
USPQ2d at 1083 (“This evidence merely demonstrates that
applicant is the only company that misspells the term NAND
drive, not that the relevant consumers of such products
have come to view the designation NANDRIVE as applicant's
source-identifying trademark.”).

Asserted Recognition by Relevant Consumers of GROUND WATER
SAFE FERTILIZERS as an Indication of Source.

In his second Section 2(f) Declaration, Mr. Stowell
states: “To my knowledge, it is commonly known and
recognized by fertilizer companies, fertilizer
distributors, and large fertilizer retailers that a
fertilizer bearing the mark ‘GROUND WATER SAFE FERTILIZERS’
refer[s] to fertilizers made by applicant SeaSource, Inc.”

23 Applicant’s April 2, 2013 Request for Remand.
Ser. No. 85334025
26
Also, with its April 2, 2013 Request for Remand,
applicant submitted in support of its claim of acquired
distinctiveness five third-party declarations from
individuals in the fertilizer and/or nursery industries,
including some of its own distributor and retailer
customers. These declarations are summarized below.
The first declaration is that of Mr. Jim Joseph. Mr.
Joseph states that since 1987 he has been employed by
various manufacturers of fertilizer. He states that he is
a past president of the California Fertilizer Association,
and that he was appointed by the California Secretary of
Agriculture to sit on the California State Fertilizer
Inspection Advisory Board. Mr. Joseph further states:
I am very familiar with the fertilizer industry and
with the many manufacturers of fertilizer in the
United States. I recognize the phrase GROUND WATER
SAFE FERTILIZERS as indicating a fertilizer from
SeaSource, Inc., and, to my knowledge, the phrase
GROUND WATER SAFE FERTILIZERS is recognized in the
fertilizer industry as indicating a fertilizer from
SeaSource, Inc. … I know of no other fertilizer
manufacturer who uses the phrase GROUND WATER SAFE
FERTILIZERS. The phrase GROUND WATER SAFE
FERTILIZERS has become synonymous with SeaSource,
Inc.

The next declaration is that of Mr. Mark Gill. Mr.
Gill states that that since 1988 he has been a retailer of
garden, landscape, and nursery products, including a wide
selection of fertilizers. Mr. Gill further states:
Ser. No. 85334025
27
I was the first retail customer for Seasource
fertilizers in 1993 and am familiar with the use by
SeaSource, Inc. of the phrase GROUND WATER SAFE
FERTILIZERS on its fertilizers since the mid-1990’s.
I recognize the phrase GROUND WATER SAFE FERTILIZERS
as indicating a fertilizer from SeaSource, Inc.,
and, to my knowledge, the phrase GROUND WATER SAFE
FERTILIZERS is recognized in the fertilizer and
nursery industries as indicating a fertilizer from
SeaSource, Inc. The phrase GROUND WATER SAFE
FERTILIZERS is recognized by my customers as
indicating a fertilizer from SeaSource, Inc. In my
positions since 1988, I am continuously approached
by every major and most minor fertilizer
manufacturers wanting to sell their fertilizers in
my stores. Because SeaSource, Inc. is recognized as
synonymous with the phrase GROUND WATER SAFE
FERTILIZERS, I am not aware of any other fertilizer
manufactures [sic] who use the phrase GROUND WATER
SAFE FERTILIZERS.

The next declaration is that of Mr. Frank Rauscher.
Mr. Rauscher states that since 2005 he has been a retailer
of products for the indoor gardener, including fertilizers.
Mr. Rauscher further states:
Being familiar with the quality and types of
SeaSource fertilizers, I have chosen SeaSource, Inc.
to manufacture the fertilizers that I currently sell
…. I have been selling fertilizers, including
SeaSource fertilizers, for many years and I am
familiar with the use by SeaSource, Inc. of the
phrase GROUND WATER SAFE FERTILIZERS on its
fertilizers. … The phrase GROUND WATER SAFE
FERTILIZERS has become synonymous with SeaSource,
Inc. and is recognized in the fertilizer and nursery
industries as indicating SeaSource, Inc. as the
source of any fertilizer bearing that phrase. I
know of no other manufacturer or seller of
fertilizer that uses that phrase.

The next declaration is that of Mr. Darren MacFarlane.
Mr. MacFarlane states that since 1990 he has been employed
Ser. No. 85334025
28
by various manufacturers and distributors of fertilizer
products and other agricultural products, with customers
including golf courses, commercial landscapers, and
nurseries. Mr. MacFarlane further states:
I am very familiar with the fertilizer industry and
with the many manufacturers of fertilizer in the
United States and worldwide. … I am familiar with
the use by SeaSource, Inc. of the phrase GROUND
WATER SAFE FERTILIZERS on its fertilizers. … The
phrase GROUND WATER SAFE FERTILIZERS has become
synonymous with SeaSource, Inc. and is recognized in
the fertilizer industry as indicating SeaSource,
Inc. as the source of any fertilizer bearing that
phrase. I know of no other manufacturer or seller
of fertilizer that uses that phrase.

The fifth and final declaration is that of Mr. Fred
Eckert. Mr. Eckert states that since 2004, He has been
involved in the wholesale distribution and sale of
fertilizers and other specialty agricultural products to
customers such as golf courses, production nurseries, and
landscape construction and maintenance. Mr. Eckert further
states:
Target Specialty Products was the first major
distributor of SeaSource, Inc. fertilizers to golf
courses and sports fields. I am familiar with the
use by SeaSource, Inc. of the phrase GROUND WATER
SAFE FERTILIZERS on its fertilizers. … The phrase
GROUND WATER SAFE FERTILIZERS has become synonymous
with SeaSource, Inc. and is recognized in the
fertilizer industry as indicating SeaSource, Inc. as
the source of any fertilizer bearing that phrase. I
know of no other manufacturer or seller of
fertilizer that uses that phrase.

Ser. No. 85334025
29
Regarding these third-party declarations, applicant
argues that:24
[a]ll of the Declarants have long been involved in
the fertilizer industry and/or in sale of
fertilizer. All Declarants testify that “the phrase
GROUND WATER SAFE FERTILIZERS is recognized in the
fertilizer industry as indicating a fertilizer from
SeaSource, Inc.” Those that have knowledge testify
also that “the phrase GROUND WATER SAFE FERTILIZERS
is recognized in the nursery industry as indicating
a fertilizer from SeaSource, Inc.” All Declarants
also testify that they know of no other fertilizer
manufacturer who uses the phrase “GROUND WATER SAFE
FERTILIZERS.”

The Trademark Examining Attorney contends that these
declarants are not relevant consumers for purposes of
determining acquired distinctiveness, and that in any event
the “[d]eclarations of only five people in the fertilizer
industry are insufficient to support the claim of acquired
distinctiveness.”25
Applicant argues, however, that:26

[t]he attached declarations are from people who have
been involved in the fertilizer industry for many
years and in fertilizer sales for many years. Most
of these people are customers of applicant and many
sell applicant’s fertilizer to further customers.
It is submitted that these Declarants are “relevant
consumers” for applicant’s fertilizer and that the
Declarations show that they, as “relevant consumers”
do view the matter [the GROUND WATER SAFE

24 Applicant’s April 2, 2013 Request for Remand.

25 April 17, 2013 Denial of Reconsideration on Remand.

26 Applicant’s April 2, 2013 Request for Remand.

Ser. No. 85334025
30
FERTILIZERS’ portion of applicant’s mark] as a mark
for such goods.

Applicant also argues that “… [t]he extensive qualification
and experience of the five declarants are sufficient to
establish the acquired distinctiveness of applicant’s
GROUND WATER SAFE FERTILIZERS portion of its mark. These
are not ‘just five people in the fertilizer industry’.”27
We are not persuaded by applicant’s arguments as to
the persuasiveness of applicant’s president’s Section 2(f)
declarations or the five third-party declarations it has
submitted in support of its claim of acquired
distinctiveness.
It is well-settled that the “relevant consumers,” for
purposes of determining whether an asserted mark has
acquired distinctiveness as used in connection with
ordinary consumer goods and services, necessarily include
the general public, who comprise the ultimate consumers and
end-users of the identified goods or services. See, e.g.,
In re Udor U.S.A. Inc., 89 USPQ2d 1978, 1987 (TTAB
2009)(finding, as to a spray nozzle configuration mark,
that the relevant purchasers for purposes of determining

27 Applicant’s Supplemental Brief at 5.

Ser. No. 85334025
31
acquired distinctiveness necessarily included “the ultimate
purchasers/users of spray nozzles”).28
In the present case, we find that the relevant
consumers for purposes of determining acquired
distinctiveness are members of the general public, who
would be the ultimate consumers and end users of fertilizer
for their lawns and gardens. The Internet evidence
discussed above establishes that fertilizer is an ordinary
consumer item marketed to ordinary consumers, not a
technical or specialized product that would only be
marketed to industry professionals. We also note in this
regard that applicant’s identification of goods in the
application is not limited to fertilizer marketed and sold
only in specialized commercial trade channels or only to
industry professionals; it identifies applicant’s goods
merely as “fertilizer.”29

28 We also note that in the Udor USA, Inc. case, supra, the Board
analogized the Section 2(f) “relevant consumer” question to
genericness cases, such as In re Northland Aluminum Prod., Inc.,
777 F.2d 1556, 227 USPQ 861 (Fed. Cir. 1985)(finding that when
the issue is genericness to the consuming public, evidence that
professionals view the term as a trademark is not probative).
Genericness is not the issue here, but we find that these
genericness cases nonetheless are of interest in this case
involving the question of whether the highly descriptive
designation GROUND WATER SAFE FERTILIZERS has acquired
distinctiveness among relevant consumers for purposes of Section
2(f).

29 Cf. In re Gibson Guitar Corp., 61 USPQ2d 1948, 1951 (TTAB
2002)(finding, with respect to the asserted acquired
Ser. No. 85334025
32
In Section 2(f) cases involving ordinary consumer
goods such as the fertilizer we have in this case, the
declarations or affidavits of industry professionals
attesting that they themselves and/or the industry in
general recognize the designation at issue as the
applicant’s mark, though entitled to some weight, are not
sufficient to establish acquired distinctiveness. The
applicant also must present evidence to establish that the
ultimate consumers and end-users of the product or service
in question recognize the designation as the applicant’s
source-indicating mark. See In re Meyer & Wenthe, Inc.,
122 USPQ 372, 376 (CCPA 1959) (“It is incumbent upon the
applicant to submit proof that its mark is distinctive, not
only to ‘experts’ in the field, but to the purchasing
public.”).
In the Udor U.S.A., Inc. case discussed above
involving the spray nozzle configuration, the applicant had
submitted statements from the applicant’s owner and from
sprayer equipment manufacturers and distributors, and
advertising material from six spray nozzle retailers. The

distinctiveness of a guitar configuration mark, that “[a]lthough
guitar collectors and aficionados may well be aware of these
differences [between applicant’s guitars and its competitors’
guitars], the determination of acquired distinctiveness must be
made on the basis of casual guitar purchasers as well.
Applicant’s identification of goods is for guitars per se.”).

Ser. No. 85334025
33
Board stated: “First, we find that the absence of any
affidavits or declarations from the ultimate users of
applicant's goods undermines applicant's contention that
the configuration of this spray nozzle head is recognized
as a source indicator for this line of spray nozzles.” 89
USPQ2d at 1987.
In the case of In re Thomas Nelson Inc., 97 USPQ2d
1712, 1718 n.19 (TTAB 2011), the Board found, as to the
asserted acquired distinctiveness of the designation “NKJV”
used in connection with Bibles, that “[s]tatements from
[seven] retailers, without regard to the perceptions of the
ultimate consumers, have very little persuasive value
because, while retailers know the source of the products
they are buying, that knowledge is not transferable to end
customers.”
In the case of In re Semel, 189 USPQ 285 (TTAB 1975),
which involved the asserted acquired distinctiveness of a
fireworks container configuration, the applicant had
submitted four affidavits from “retailing officials of
applicant’s customers.” The Board found:
“[i]t is well settled that the assertions of
retailers, who know full well from whom they are
buying, that they themselves recognize a particular
designation as a trademark, or that they believe
that their customers consider it to be a mark,
cannot serve to establish that members of the
purchasing public, who come to the marketplace
Ser. No. 85334025
34
without such specialized knowledge, would in fact
recognize the designation as an indication of
origin.”

189 USPQ at 289.
In the case of In re Mag Instrument Inc. v. Brinkmann
Corp., 96 USPQ2d 1701, 1723 (TTAB 2010), which involved a
double-ring design element used on flashlights, the Board
found that the applicant’s sixteen third-party declarations
were not persuasive evidence of acquired distinctiveness
because, inter alia, “none of the declarants, except
possibly one, is described as an end consumer. They are
almost exclusively either Mag Instrument's sales
representatives or otherwise associated with a company in
the flashlight retail business.”).
In the case of In re Candy Bouquet Int’l Inc., 73
USPQ2d 1883, 1890 (TTAB 2004), involving the designation
CANDY BOUQUET in connection with candy, the Board found
that the applicant’s declarations from vendors, a former
franchisee and a supplier were insufficient as evidence of
acquired distinctiveness because, inter alia, “none of the
letters attests to the perception of CANDY BOUQUET by the
general public, the ultimate consumers of applicant’s
services.”
Finally, the case of In re Pingel Enterprise Inc., 46
USPQ2d 1811 (TTAB 1998), involved a motorcycle petcock
Ser. No. 85334025
35
configuration asserted to be a mark for motorcycle fuel
gauges and valves. In support of its Section 2(f) claim,
the Applicant had submitted thirty-one letters from
motorcycle dealers who stated, inter alia, that the
applicant’s petcock configuration “is recognized by those
of us in the industry as unique to Pingel Enterprise, Inc.
and synonymous with the quality and goodwill of that
company.” The Board found as to acquired distinctiveness
that these dealer letters lacked probative value because
“they reveal absolutely nothing as to whether the ultimate
purchasers of motorcycle petcocks recognize or otherwise
regard applicant’s petcock configuration as a source
indicator. The dealer letters are all limited exclusively
to what ‘those … in the industry’ recognize as being
‘unique’ to applicant.” In re Pingel Enterprise Inc.,
supra, 46 USPQ2d at 1822.
Likewise in the present case, we find that applicant’s
five third-party declarants, consisting solely of
fertilizer and nursery industry experts and/or long-time
retailers of applicant’s fertilizer, are not the relevant
consumers for purposes of determining whether the wording
GROUND WATER SAFE FERTILIZERS has acquired distinctiveness.
Contrary to applicant’s apparent contention, the mere fact
that the retailer declarants are applicant’s direct
Ser. No. 85334025
36
customers does not make them “relevant consumers” for
purposes of determining acquired distinctiveness.
These declarants’ assertions that GROUND WATER SAFE
FERTILIZERS is recognized by themselves and by “the
fertilizer industry” and “the nursery industry” as being
“synonymous” with applicant do not suffice as evidence that
the designation has acquired distinctiveness among the
ultimate purchasers and end-users of fertilizer, who are
the relevant consumers at issue here. See In re Pingel
Enterprise Inc., supra. Likewise, Mr. Stowell’s statement
in his second declaration that GROUND WATER SAFE
FERTILIZERS is recognized as a mark by “fertilizer
companies, fertilizer distributors, and large fertilizer
retailers” is not evidence that the designation has
acquired distinctiveness among the ultimate consumers of
fertilizer products.
Applicant has not submitted any declarations from
ultimate consumers attesting to their recognition of GROUND
WATER SAFE FERTILIZERS as an indication of source for
applicant’s fertilizer. In fact, only one of the
declarants, the nursery products retailer Mr. Gill, even
mentions the asserted perceptions of ultimate consumers,
conclusorily stating that the phrase GROUND WATER SAFE
FERTILIZERS “is recognized by my customers as indicating a
Ser. No. 85334025
37
fertilizer from SeaSource, Inc.” We find in the overall
context of the evidence in this case that this statement is
entitled to very little probative weight on the question of
acquired distinctiveness.

Conclusion: No Acquired Distinctiveness.
In short, we find that applicant has failed to
establish that the designation GROUND WATER SAFE
FERTILIZERS in its mark has acquired distinctiveness as a
source-indicator for applicant’s fertilizer, rather than
merely as wording which describes a feature of the
fertilizer itself, i.e., that it is “groundwater safe.”
As discussed above, the designation GROUND WATER SAFE
FERTILIZERS is not only merely descriptive as applied to
applicant’s goods (a point applicant has conceded by
seeking registration under Section 2(f)). We find that it
in fact is highly descriptive as applied to fertilizer.
Accordingly, applicant’s burden of proving acquired
distinctiveness is likewise very high. See In re
Steelbuilding.com, supra, 75 USPQ2d at 1424 (“The proposed
mark is highly descriptive. Therefore, applicant had the
burden to show a concomitantly high level of secondary
meaning”). We find that applicant has failed to carry that
burden.
Ser. No. 85334025
38

Decision:
We find that the Trademark Examining Attorney’s
requirement for a disclaimer of GROUND WATER SAFE
FERTILIZERS is proper, and that her refusal of registration
based on applicant’s failure to provide such disclaimer
also is proper. We accordingly affirm the refusal to
register absent such disclaimer.
However, applicant is allowed until thirty days from
the mailing date of this decision to submit the required
disclaimer, in which case this decision will be set aside
and the mark shall proceed to publication with the
disclaimer.30

30 Taken together with applicant’s previous disclaimer of “INC.,
the proper format for the required disclaimer statement is: “No
claim is made to the exclusive right to use INC. or GROUND WATER
SAFE FERTILIZERS apart from the mark as shown.”