The TTAB affirmed a refusal to register POND POTS for "fabric containers for growing plants," on the ground of genericness. Applicant argued that POND POTS was neither generic nor merely descriptive, and if merely descriptive had acquired distinctiveness under Section 2(f). None of its arguments held water. In re High Caliper Growing, Inc., Serial No. 86589047 (August 30, 2017) [not precedential] (Opinion by Judge Anthony R. Masiello).
Genericness: The Board found the identification of goods to be an adequate expression of the genus of goods at issue. Examining Attorney Lauren E. Burke maintained that applicant's goods are containers that may be used for growing aquatic plants in ponds. She made of record five Internet pages in which "pond pots" is used to refer to containers used for growing aquatic plants in ponds, including pots made of fabric. Applicant argued that POND POTS is not used to refer to all fabric pots, but the Board pointed out that it does refer to a part of the genus, fabric pots for use in ponds. That is enough to establish genericness.
The Board found that the Examining Attorney had clearly demonstrated that applicant's proposed mark is generic.
Descriptiveness: Implicit in the genericness finding is a holding that the applied-for mark is at least merely descriptive. Dictionary definitions established that the proposed mark immediately conveys the idea of a container for holding plants that may be used with aquatic plants in a pond. Internet evidence showed that such containers may be made of fabric.
Applicant contended that the proposed mark does not "immediately" convey the information that the goods are made of fabric, thus causing a "mental pause" that renders the mark suggestive rather than merely descriptive. The Board was unmoved, noting that the mark need not convey all information regarding the goods in order to be considered merely descriptive.
Acquired Distinctiveness: Applicant submitted two declarations stating that the mark has been in use since 1999, that the goods are sold at 176 locations in 37 states, and that sales have exceeded 100,000 units grossing nearly $250,000. In addition, applicant has advertised in print and media, and at 60 trade shows in the last 12 months, at which thousands of promotional sales sheets have been distributed.
THe Board deemed applicant's mark highly descriptive, and so a strong evidentiary showing would be needed for purposes of Section 2(f). Here, applicant's sales and revenues have been modest. There was no evidence that customers associate the mark with the goods. In short, applicant failed to show that its mark has become distinctive.
And so the Board affirmed the genericness refusal and the Section 2(e)(1) mere descriptiveness refusal.
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