Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE GRANDE CHEESE COMPANY
Serial No. 500,651; 500,697; 500,699; 500,704; 501,067; 502,116; 502,224;
502,236; 502,253; 502,254
December 31, 1986
Hearing: December 16, 1986
Ronald E. Barry for applicant
Roger E. Katz
Trademark Examining Attorney
Law Office 2
(John Demos, Managing Attorney)
Before Sams, Krugman and Cissel
Members
Member
Applications have been filed by Grande Cheese Company to register each of the following designations as a trademark for cheese
[FN1]
[FN2]
[FN3]
[FN4]
[FN5]
[FN6]
[FN7]
[FN8]
[FN9]
[FN10]
As is apparent from a review of the designations sought to be registered, they fall into two sets. The first set of four applications consists of the lettering styles of the generic terms " MOZZARELLA" (lined for red and for green respectively) and "ITALIAN CHEESES" (lined for red in one application and in solid black in the other). The second set of six applications consists of background displays together with the lettering styles of the generic terms "MOZZARELLA" and "ITALIAN CHEESES" (with lining for the colors red and green in four instances and with no claim to color in two instances).
With respect to the four applications comprising the lettering styles, registration has been refused under Sections 1, 2 (preamble) and 45 of the Trademark Act on the ground that the display of lettering of the generic terms "MOZZARELLA" and "ITALIAN CHEESES" is not sufficiently distinctive such that the configuration functions as a trademark to indicate origin. Similarly, with respect to the six applications comprising the lettering style and the background displays, registration has been refused under Sections 1, 2 (preamble) and 45 of the Act on the ground that the lettering style is not sufficiently distinctive and that the background displays constitute mere surface decoration or ornamentation and the designations do not function as trademarks.
Applicant has appealed, contending that its lettering format constitutes a unique curved shape across the top of the words, creating a commercial impression separate and apart from the disclaimed words and that the designations are registrable, citing In re Jackson Hole Ski Corporation, 190 USPQ 175 (TTAB 1976). Applicant further contends that the background displays are sufficiently distinctive to allow registration under In re W.B. Roddenberry, 135 USPQ 215 (TTAB 1962). It is applicant's position, made clear by applicant's counsel during the oral hearing held before this panel, that the designations sought to be registered are all inherently distinctive since all of the designations have been used for a relatively short period of time, precluding any possibility of demonstrating acquired distinctiveness. [FN11]
As we have stated in the past, while an entire mark cannot be disclaimed and also registered, where the unregistrable portions of a mark are presented in a distinctive display, the unregistrable portions may be disclaimed and yet the mark as a whole may be registrable. See: In re Miller Brewing Company, 226 USPQ 666 (TTAB 1985) (stylized presentation of the disclaimed word "LITE" held not inherently distinctive but registrable as a trademark for beer on the Principal Register based on evidence sufficient to show that the configuration of "LITE" does, in fact, function as a trademark) and cases cited therein. Whether or not the disclaimed literal components of a designation sought to be registered are displayed in an inherently distinctive fashion is necessarily a subjective matter which must be determined based on a viewer's first impression. See: In re Jackson Hole Ski Corporation, supra.
*2 In the present case, we agree with the Examining Attorney that the lettering style of "MOZZARELLA" and "ITALIAN CHEESES" is not inherently distinctive, such that it creates a separate commercial impression over and above that made by the generic words themselves. We believe that whatever impact the style of the lettering may have is lost in the significance which the "marks" have as highly descriptive or generic notations and we believe that the "marks," considered in their entireties, create only a single commercial impression, that is, that of a highly descriptive or generic notation. See: In re Carolyn's Candies, Inc., 206 USPQ 356 (TTAB 1980). A review of the specimens in these cases evidence consistent use of the trademark "GRandE" in connection with all the designations sought to be registered. We think it likely that purchasers would look to that mark as a source identifier to indicate origin and would not see the lettering style or coloring of the generic designations as an indicium of source.
Similarly, with respect to the designations including a background display, we do not believe the background display is sufficiently unique or distinctive to warrant registrability in this case. We simply do not think that said display would be perceived as anything more than a mere background design for the display of the words presented and we are of the view that the cases, such as In re W.B. Roddenbery Co., supra, where background designs were held to be inherently distinctive, involved designs which were substantially more distinctive and eye catching than those involved herein. See: In re Wendy's International, Inc., 227 USPQ 884 (TTAB 1985) and cases cited therein.
While applicant has argued that the designations sought to be registered are capable of performing a source indicating function and while it may be true that the style of display of "MOZZARELLA" and "ITALIAN CHEESES" in the various applications is no less distinctive than were the words registered in In re Carolyn's Candies, Inc., supra, and In re The Wella Corporation, 635 F.2d 845, 196 USPQ 7 (CCPA 1977), the question of the capability of applicant's designation to function as trademarks is not in issue in the present cases where registration is being sought on the Principal, as opposed to the Supplemental Register.
We conclude, then, that the designations sought to be registered do not comprise inherently distinctive lettering styles and/or background displays such that they would create separate commercial impressions apart from the generic significance of the disclaimed words and that, in the absence of sufficient and persuasive evidence that the configurations do, in fact, function as trademarks (See: In re Miller Brewing Company, supra, at 667 n. 3), the refusals of registration are believed to be well taken. [FN12]
*3 Decision: The refusal of registration in each instance is affirmed.
J. D. Sams
G. D. Krugman
R. F. Cissel
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 500,697 filed September 24, 1984. The drawing is lined for the color red. The term "MOZZARELLA" has been disclaimed apart from the mark as shown.
FN2. Application Serial No. 500,704 filed September 24, 1984. The drawing is lined for the color green. The term "MOZZARELLA" has been disclaimed apart from the mark as shown.
FN3. Application Serial No. 502,116 filed October 3, 1984. The term "ITALIAN CHEESES" has been disclaimed apart from the mark as shown.
FN4. Application Serial No. 502,236 filed October 3, 1984. The drawing is lined for the color red. The term "ITALIAN CHEESES" has been disclaimed apart from the mark as shown.
FN5. Application Serial No. 500,651 filed September 24, 1984. The term "MOZZARELLA" has been disclaimed apart from the mark as shown.
FN6. Application Serial No. 500,699 filed September 24, 1984. The drawing is lined for the colors red and green. The term "MOZZARELLA" has been disclaimed apart from the mark as shown.
FN7. Application Serial No. 501,067 filed September 25, 1984. The drawing is lined for the colors red and green. The term "MOZZARELLA" has been disclaimed apart from the mark as shown.
FN8. Application Serial No. 502,224 filed October 3, 1984. The drawing is lined for the colors red and green. The term "MOZZARELLA" and "ITALIAN CHEESES" has been disclaimed apart from the mark as shown.
FN9. Application Serial No. 502,253 filed October 3, 1984. The drawing is lined for the colors red and green. The term "MOZZARELLA" and "ITALIAN CHEESES" has been disclaimed apart from the mark as shown.
FN10. Application Serial No. 502,254 filed October 3, 1984. The term "MOZZARELLA" and "ITALIAN CHEESES" has been disclaimed apart from the mark as shown.
FN11. All the applications claim a date of first use of August 24, 1984, a date less than one and a half years prior to the filing of these appeals.
FN12. Applicant, in some of the applications, has submitted a number of unverified statements from individuals identified as retailers or distributors for applicant's cheese products. To the extent that these statements are attempts to show acquired distinctiveness of the designations, they are not persuasive, in view of the unverified form of the statements and, more importantly, in view of the character of the designations sought to be registered and in view of the relatively short period of time that the designations have been in use.