SP Systems, LLC

Trademark Trial and Appeal Board

Dec 6, 2002

No. 75932869re (T.T.A.B. Dec. 6, 2002)

Mailed: December 6, 2002
Paper No. 14
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re SP Systems, LLC
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Serial No. 75/932,869
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Request for Reconsideration
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Robert Dickerson of Jones, Day, Reavis & Pogue for SP
Systems, LLC.
David H. Stine, Trademark Examining Attorney, Law Office
114 (Margaret Le, Managing Attorney).
_______
Before Hairston, Chapman and Drost, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
On October 21, 2002, applicant filed a request for
reconsideration of the Board’s decision issued September
20, 2002, wherein the Board affirmed the refusal to
register FARM & HOME as a trademark for manually-operated
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75/932,869
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compression sprayers for dispensing liquids” on the ground
of mere descriptiveness.
Applicant maintains that the Board’s decision is
incorrect because the fact that applicant’s sprayers can be
used around the farm or the home is not a significant
feature of the product. Further, according to applicant,
there is no understood or recognized subcategory in the
sprayer industry for a “farm and home” sprayer and there is
nothing in the record to indicate that applicant’s
particular sprayer was specifically designed to fill some
well-understood need for sprayers that can be used around
farms and homes. In addition, for the first time,
applicant points to the fact that there are nineteen third-
party registered marks which include such words as “farm,”
“home,” “auto,” and “sea” for various goods, and has argued
that this shows that FARM & HOME is suggestive.
First, with respect to applicant’s contention that its
mark is only suggestive in view of certain third-party
registrations, we must point out that the record in an
application should be complete prior to the filing of an
appeal, and additional evidence filed after appeal will
ordinarily be given no consideration by the Board.
Trademark Rule 2.142(d). Moreover, mere typed listings of
third-party registrations are not an appropriate way to
Ser No. 75/932,869
3
enter such material into the record, and the Board does not
take judicial notice of registrations in the USPTO. See
Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230 (TTAB 1992);
Cities Service Company v. WMF of America, Inc., 199 USPQ
493 (TTAB 1978); and In re Duofold Inc., 184 USPQ 638 (TTAB
1974). Accordingly, applicant’s references to third-party
marks have not been considered. We note, however, that
even if applicant had timely and properly submitted the
evidence of third-party registrations, it would not be
persuasive of a different result in this case. As often
noted by the Board, each case must be decided on its own
merits. We are not privy to the records of the third-party
registration files, and moreover, the determination of
registrability of those particular marks by Trademark
Examining Attorneys cannot control the merits in this case.
See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564,
1566 (Fed. Cir. 2001)(“Even if some prior registrations had
some characteristics similar to [applicant’s application],
the PTO’s allowance of such prior registrations does not
bind the Board or this court”). See also In re Loew’s
Theatres, Inc., 769 F.2d 764, 226 USPQ 865 (Fed. Cir. 1985)
(Applicant’s existing rights arising from registration of
DURANGO’S for cigars are unaffected by rejection of DURANGO
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for chewing tobacco; each application for registration of a
mark for particular goods must be separately evaluated).
Second, we remain of the view that FARM & HOME
describes a significant feature of applicant’s goods. We
believe that the relevant purchasers of applicant’s goods
would understand that a “farm & home” compression sprayer
is designed for smaller jobs, namely jobs around the farm
and home, as opposed to commercial uses. In this regard,
applicant failed to offer any evidence in support of its
contention that there is no “farm & home” subcategory of
compression sprayers.
Accordingly, because we are not persuaded by
applicant’s arguments that our October 21, 2002 decision
was incorrect, applicant’s request for reconsideration is
denied.
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