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«UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board In re Precision Cuts, Inc. Serial No. 76342048 Lisa M. Caldwell of ...»

THIS DISPOSITION IS NOT

CITABLE AS PRECEDENT

OF THE TTAB

Mailed: June 30, 2004

csl

UNITED STATES PATENT AND TRADEMARK OFFICE

________

Trademark Trial and Appeal Board

________

In re Precision Cuts, Inc.

________

Serial No. 76342048

______

Lisa M. Caldwell of Klarquist Sparkman, LLP for Precision Cuts, Inc.

Steven Foster, Trademark Examining Attorney, Law Office 106 (Mary Sparrow, Managing Attorney).

_______ Before Simms, Hanak and Chapman, Administrative Trademark Judges.

Opinion by Simms, Administrative Trademark Judge:

Precision Cuts, Inc. (applicant), an Oregon corporation, has appealed from the final requirement of the Trademark Examining Attorney for a disclaimer of the words “PRECISION CUTS” in the mark shown below, for the amended description “barbershop and tanning salon services,” in Class 42.1 Application Serial No. 76342048, filed November 27, 2001, asserting use since January 1, 1985, and use in commerce since Ser. No. 76342048 In the original application, applicant asserted that its mark has become distinctive of its services through substantially exclusive and continuous use in commerce for at least five years. In an amendment, applicant claimed that its mark had acquired distinctiveness as the result of substantially exclusive and continuous use for 15 years.

The Examining Attorney contends that the words “PRECISION CUTS” are generic with respect to barbershop services and must be disclaimed pursuant to Section 6 of the Trademark Act, 15 USC §1056.

Applicant and the Examining Attorney have submitted briefs, but no oral hearing was requested.

It is the Examining Attorney’s position that dictionary definitions of record2 as well as numerous excerpts from stories retrieved from the Nexis database show that these words are generic for a type or style of haircut and are therefore generic with respect to December 10, 1985. Applicant submitted a disclaimer of the word “CUTS” apart from the mark as shown.

One definition of record of the word “cut” is “a haircut, often with a styling.” Random House Unabridged Dictionary, Second Edition (date indecipherable).

Ser. No. 76342048 haircutting or barbershop services. Because terms are generic for services if they are generic for a key characteristic of those services, the words “precision cuts” should be disclaimed in applicant’s mark despite any claim of acquired distinctiveness for the mark as a whole, the Examining Attorney contends. Some of the excerpted

stories, all from U.S. publications, are set forth below:

–  –  –

It is applicant’s position that the Examining Attorney has not submitted a prima facie case of genericness by submitting clear or substantial evidence that these words are or will be recognized by at least a majority of the relevant purchasing public, that is, barbershop customers, to primarily signify the name of applicant’s services.

Ser. No. 76342048 First, applicant observes that no dictionary definition of record defines the term “precision cut(s).” According to applicant, the Nexis evidence shows that only a very small portion of the relevant public has used these words to refer to a way of cutting hair. Applicant contends that only a very small number of news articles (about 60) have been made of record which use the term “precision cut” in relation to barbershop services, out of millions of articles covered in the database.3 Therefore, while applicant acknowledges that the stories show use by hair care professionals to describe a way of cutting hair, applicant’s attorney argues that the Examining Attorney has offered no evidence that any consumers have actually been exposed to these articles or that most of the relevant public (barbershop customers) in fact use these words generically. Accordingly, applicant maintains that no inferences can be drawn from the evidence that most of the relevant public regards the term PRECISION CUTS as generic.

Applicant has also made of record a number of third-party registrations which include the word “CUTS” in combination In his appeal brief, p.6, applicant’s attorney describes a search which he conducted in the Nexis database. Because the search results were not made of record before the appeal was filed, we can give no consideration to this search. Moreover, the fact that the term “haircut” may appear in many more articles than the expression “precision cut(s)” is not particularly relevant to the issue before us.

Ser. No. 76342048 with other descriptive or laudatory terms, such as “GREAT” or “SUPER,” and argues that its similar mark should also be registered. Finally, applicant asks us to resolve any doubt as to whether the words “PRECISION CUTS” are generic in applicant’s favor by finding that they are, at most, descriptive words which have acquired distinctiveness, so that the consuming public has come to view applicant’s mark as denoting a particular source.

In response to applicant’s arguments about the failure to prove that most of the relevant public view the words “precision cuts” as generic, the Examining Attorney argues that the Nexis evidence of record shows that providers of haircutting and barbershop services have referred to their services as including the offering of “precision cuts,” and that the purchasing public has been exposed to this generic usage in these stories, appearing not in trade journals, but in general-circulation publications such as newspapers.





Further, the Examining Attorney explains:

Given the limited resources of this Office, it would be extremely difficult for the Office to directly prove in any given case what the majority of possibly (in some cases) millions of consumers actually believe when seeing or hearing a term or phrase. The Office does not conduct polls or surveys of ordinary consumers in individual cases, and, as illustrated by the Nexis evidence herein, very few ordinary citizens get quoted in newspapers commenting about the services offered to them by others.

See Examining Attorney’s appeal brief, unnumbered pages 4The Examining Attorney also notes that applicant offered nothing other than the declaration in support of the claim of acquired distinctiveness.4 That is, no evidence such as the amount of sales under the mark, advertising expenditures under the mark, extent of use of the mark, or direct evidence of the public perception of the asserted mark tending to show that the relevant public would attribute trademark significance to the words in the mark as indicating origin in applicant, have been submitted.

With respect to generic terms, Section 14(3) of the Act, 15 USC §1064(3), provides that “The primary In a footnote in his brief, the Examining Attorney states that, had applicant sought registration of the words PRECISION CUTS alone, or had applicant claimed acquired distinctiveness of just the phrase PRECISION CUTS (rather than the mark as a whole), he would have argued that, even if the phrase were not generic, applicant’s evidence of acquired distinctiveness was insufficient to permit registration of these words. However, he acknowledges that because applicant’s claim of acquired distinctiveness was with respect to the mark as a whole, including the design elements, then the claim of acquired distinctiveness appears to preclude this argument. See In re Creative Goldsmiths of Washington, Inc., 229 USPQ 766, 769 n.6 (TTAB 1986), wherein the Board indicated that, where the Section 2(f) claim pertained to more than the subject matter of the disclaimer requirement, any alleged insufficiency of the showing as it pertained to the subject matter of the disclaimer was not well taken.

Ser. No. 76342048 significance of the registered mark to the relevant public rather than purchaser motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used.” This language is equally applicable to the determination of genericness prior to registration. That is to say, the statutory test of the primary significance of the mark to the relevant public is also the test for determining whether an applied-for mark is or is not generic. If the term PRECISION CUTS is generic, and thus constitutes unregistrable matter, then the words must be disclaimed even though applicant is seeking registration of the entire mark under the provisions of Section 2(f). In re Creative Goldsmiths of Washington, Inc., supra, at 768, and cases cited therein;

and TMEP §1213.03(b)(2nd ed. Rev. 1 March 2004).

In determining whether the primary significance of a

term is generic, our primary reviewing court has stated:

…[D]etermining whether a mark is generic … involves a two-step inquiry: First, what is the genus of goods or services at issue?

Second, is the term sought to be registered … understood by the relevant public primarily to refer to that genus of goods or services?

H. Marvin Ginn Corporation v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed.

Ser. No. 76342048 Cir. 1986). See also In re American Fertility Society, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999). The critical issue in genericness cases is, therefore, whether members of the relevant public primarily use or understand the term sought to be registered to refer to the genus or category of goods or services in question. In re Montrachet S.A., 878 F.2d 375, 11 USPQ2d 1393, 1394 (Fed. Cir. 1989); In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987); Dan Robbins & Assocs., Inc. v. Questor Corp., 599 F.2d 1009, 202 USPQ 100, 105 (CCPA 1979); Zimmerman V. National Assn. of Realtors, Inc., 70 USPQ2d 1425 (TTAB 2004); and In re Recorded Books, Inc., 42 USPQ2d 1275 (TTAB 1997). Evidence of the public’s understanding of a particular term may be obtained from any competent source, including direct testimony of consumers, consumer surveys, listings in dictionaries, trade journals, newspapers, and other publications. See Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991); In re Merrill, Lynch, Pierce, Fenner, and Smith Inc., supra; In re Northland Aluminum Products, Inc., 777 F.2d 1566, 227 USPQ 961 (Fed.

Cir. 1985); and In re Leatherman Tool Group, Inc., 32 USPQ2d 1443, 1449 (TTAB 1994). Finally, we note that in the context of this ex parte proceeding, it is the burden Ser. No. 76342048 of the Examining Attorney to prove the genericness of the words in the mark sought to be registered by clear evidence. In re Merrill Lynch, Pierce, Fenner & Smith Inc., supra.

The genus, category or class of services is determined on the basis of the services identified in the application.

See, e.g., Magic Wand, Inc. v. RDB, Inc., supra. As set forth in this application, the category or class of applicant's services is barbershop services. (The Examining Attorney does not argue that the words PRECISION CUTS are generic with respect to tanning salon services.) With respect to the issue of whether the term sought to be registered is understood by the relevant public (the general purchasing public in this case) primarily to refer to that class or category of services, we must look to the evidence of record. In this case, there is clear evidence that the term “precision cut(s)” has been used to identify a type or style of haircut. For example, “Offering precision cuts, permanent waves, hair coloring, blow drys and sets, New York Hair has 14 chairs and 12 stylists.” Thus, the public would primarily understand the term “precision cut(s)” to have this significance as a result of exposure to the uses of this term in the excerpts from newspapers and magazines distributed to the general public.

Ser. No. 76342048 Inasmuch as the term “precision cuts” is generic for a type or style of haircut, which is a key characteristic of applicant’s barbershop services, these words are generic for those services. See In re Bonni Keller Collections Ltd., 6 USPQ2d 1224 (TTAB 1987)(“La Lingerie” held generic for services that involve the selling of lingerie); and In re Wickerware, Inc., 227 USPQ 970 (TTAB 1985)(“Wickerware” held generic for mail order and distributorship services in the field of wicker furniture).

The Examining Attorney having presented a prima facie case of genericness of these words, it was incumbent on applicant to attempt to rebut this showing by, for example, demonstrating that these words have also been used in a significant manner as a service mark to indicate source or origin in applicant for its barbershop services. This applicant has not done. Rather, applicant has merely relied upon its earlier-filed declaration that its mark has been used substantially exclusively and continuously for over 15 years. As the Examining Attorney has stated, applicant did not otherwise attempt to show that its mark was the subject of substantial sales or advertising, or otherwise used in such a significant manner that it was exposed to the relevant purchasing public. Such evidence may tend to show that the primary significance of the mark Ser. No. 76342048 is not to indicate a type or style of haircut. In conclusion, we believe that the Examining Attorney has shown by clear evidence that these words are generic for applicant’s services, and should therefore be disclaimed.

Decision: The requirement under Section 6 of the Act for a disclaimer of the words “PRECISION CUTS” apart from the mark as a whole and the refusal to register the mark in the absence of this disclaimer is affirmed. However, the refusal of registration will be set aside and the mark published for opposition if applicant, no later than 30 days from the mailing hereof, submits an appropriate disclaimer. See Trademark Rule 2.142(g).





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