Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE BAUHAUS DESIGNS CANADA LIMITED
Serial No. 434,244
October 19, 1989
Robert C. Podwil, Wolf, Block, Schorr and Solis-Cohen for applicant.
Henry S. Zak
Trademark Examining Attorney
Law Office 1
(Deborah Cohn, Managing Attorney)
Before Simms, Cissel and Hanak
Opinion by Hanak
Bauhaus Designs Canada Limited (applicant) applied to register the mark BAUHAUS in block letters for "furniture, namely, general house and office furniture, upholstered and otherwise, that is sold to the general public, through general retail outlets." [FN1] Registration was refused pursuant to Section 2(e)(1) of the Lanham Trademark Act on the ground that the mark, as applied to applicant's goods, is so highly descriptive of the goods as to be incapable of functioning as an indicator of source. The Examining Attorney also refused registration on the basis that, at the very least, applicant's mark is merely descriptive of its goods and applicant has failed to establish that its mark has acquired a secondary meaning in a sense that it now functions primarily to indicate goods emanating from a particular source (i.e. applicant).
It is the position of the applicant that the mark BAUHAUS is only suggestive of its furniture, and hence is entitled to registration without any showing of secondary meaning. Furthermore, applicant contends that even if the mark BAUHAUS is considered merely descriptive, it has long since acquired a secondary meaning indicating furniture emanating from applicant.
When the Examining Attorney made final his refusal to register, applicant appealed to this Board. Both the applicant and the Examining Attorney filed exhaustive briefs and were present at a hearing held on July 11, 1989.
We will first consider the issue of whether, as applied to furniture, the term BAUHAUS is so highly descriptive as to be incapable of functioning as a trademark. It is the position of the Examining Attorney that Bauhaus is the name of a famous school of design founded by Walter Gropius in 1919 in the Weimar Republic of Germany. The Examining Attorney further notes that the Bauhaus School had its influence not only on architecture, but also on furniture, and that the term "Bauhaus furniture" denotes a contemporary style of furniture associated with the concepts and styles developed at the Bauhaus School. In support of his position, the Examining Attorney has made of record numerous excerpts from dictionaries, encyclopedias, reference books and periodicals. These include the following:
Webster's Third New International Dictionary (1986): "bauhaus ... of, relating to, or influenced by a school of design founded by Walter Gropius at Weimar in 1919 and noted for its association with functional architecture, abstract art, innovation in the use of building materials, and the absence of applied ornament in design and for a program that synthesized technology, craftsmanship, and design aesthetics and disregarded the distinction between fine and applied art [Bauhaus furniture] [the Bauhaus point of view].
*2 The Complete Guide to Furniture Styles, L. Boger, pages 436-437 (1986): "Among the Bauhaus ideas that broke European precedent were the use of chrome-plated metal tubes in the design of furniture; highly polished surfaces made interesting by textures rather than ornament, and stacking furniture to facilitate storage. Many Bauhaus designs were bought and manufactured by industry. Though most of the Bauhaus products were made by hand, the precision and clarity of their geometric contours imbued them with a machine-made appearance, which was an important consideration for early modern designers. It was at the Bauhaus that the first cantilever chrome-plated tubular steel chair was made in 1925."
Sixty Years Of Interior Design, E. Brown, page 311 (1982): "Eleanor Brown never became a fan of Bauhaus furniture, though she would work with it if it was required. Nor was she interested in the other end of the design spectrum--"fussy" furniture such as gilt Regence and Louis XIV--although, again, she'd use it if a client insisted."
The House Style Book, D. Sudjic, page 36 (1984): "The chairs are Bauhaus modern classics; the cornice and column hark back to earlier times."
Better Homes and Gardens Decorating, pages 6 and 77-92 (Spring 1985 Edition): "Perhaps no other design movement has influenced contemporary furnishings as much as the German Bauhaus School. Here's a compendium of some of the famous Bauhaus designs, their history, and a list of manufacturers who still reproduce these classics ... Like any furniture that's considered classic, the best Bauhaus designs combined eye-pleasing proportions and graceful lines.... Because Bauhaus furnishings have so well withstood the test of time, many fine reproductions of the original pieces are still available. Some of the major manufacturers and the pieces that they reproduce are ... Knoll International ... International Contract Furnishings, Inc. ... [etc.]."
Newsweek, April 24, 1978: "Prices are soaring for rare stamps and coins, antique cars, first editions, Bauhaus furniture, thoroughbred horses and even such esoterica as Dick Tracey comic books, old cookie tins and Lionel trains."
Washington Post, October 28, 1982: "Unlike the more extreme Bauhaus furniture, the best and earliest of Scandinavian furniture and decorative accessories used familiar materials ..."
The New York Times, January 6, 1983: "The unobtrusive stainless-steel frames of the Bauhaus furniture carry on the lines and tones of the architecture."
The foregoing excerpts represent just a limited number of the numerous excerpts made of record by the Examining Attorney wherein the term "Bauhaus" is used to indicate a type or style of furniture. The applicant does not contend that any of these excerpts utilize the term "Bauhaus" to refer to applicant's brand of furniture. However, the applicant does contend that the numerous excerpts submitted by the Examining Attorney are inadequate to establish that the term "Bauhaus" functions to indicate a type or style of furniture.
*3 We disagree. The vast number of excerpts submitted by the Examining Attorney from a wide array of publications serves to show that, as applied to furniture, the term "Bauhaus" functions in a generic manner to indicate a type or style of furniture. [FN2] See In re Merrill Lynch, 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed.Cir.1987) ("Evidence of the public's understanding of the term may be obtained from any competent source, such as ... listings in dictionaries, trade journals, newspapers, and other publications."); In re Loew's Theatres, Inc., 769 F.2d 764, 226 USPQ 865, 868 (Fed.Cir.1985) ("The PTO does not have means to conduct a marketing survey as [applicant] would require. The practicalities of the limited resources available to the PTO are routinely taken into account in reviewing its administrative action."). [FN3]
In support of its position that the term "Bauhaus" is not generic, but rather serves as its trademark, applicant relies on 8 form affidavits from furniture retailers who state that the term "Bauhaus" is not used generically, but rather is used to refer to Bauhaus Designs Canada Limited, and its products which are sold under the trademark BAUHAUS. In addition, applicant has submitted approximately 40 to 50 customer letters directed to Bauhaus Designs.
As for the affidavits from retailers, we have carefully considered them, but we do not find them sufficient to rebut the prima facie showing made by the Examining Attorney that the term "Bauhaus" functions to indicate a particular type or style of furniture. See In re Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961, 963-964 (Fed.Cir.1985).
As for the customer letters directed to Bauhaus Designs, we find that the letters do little to establish that the term "Bauhaus"--as applied to furniture--is not generic. These consumers had comments concerning applicant's furniture and quite naturally sent their comments to the entity whose name (Bauhaus Designs) and address appeared in association with the furniture. By way of analogy, if applicant's name and address were Furniture Designs, 123 Main Street, Toronto, Ontario, customers would so address their inquiries. However, this would do very little to establish that the term "furniture," as applied to furniture, is not generic.
Finally, we turn to a survey entitled "Bauhaus Trademark Study" which applicant had conducted for the limited purpose of showing "that the term at issue 'BAUHAUS' is capable of designating origin." (Applicant's reply brief page 6). This survey was conducted in February 1987 in middle-class shopping centers in three geographically dispersed areas: New York, Chicago and Seattle. To qualify for the study, a respondent had to be either the male or female head of a household. There were three hundred respondents equally divided among the three cities. Half of the respondents were men and half were women. The respondents were shown a card with one word on it and asked whether they were familiar with that word, and if so, what they associated with it.
*4 The survey results show that "Bauhaus" is not a familiar word to that broad spectrum of individuals who may be categorized as heads of households. Of the three hundred respondents, only forty-seven claimed any familiarity with the term. Of the forty-seven, only nine respondents correctly identified the term. The verbatim responses of these nine respondents are reproduced below as they appear in the study.
Respondents having appropriate associations, including furniture:
1. I've seen it. It could be a style of furniture.
3. A school of design for furniture, I think.
4. It is a style of furniture.
5. German design school. Good contemporary design. Furniture too, that's it.
6. It's furniture. Housing style, architecture.
7. It is a form of architecture. It is a form of furniture design.
Respondents having appropriate associations, but no mention of furniture.
9. An art movement, coming from Germany, Architecture, Clean lines.
Even if we accept the accuracy of the trademark study commissioned by the applicant, the study does nothing to undercut the prima facie case made out by the Examining Attorney showing that "Bauhaus" functions as a generic term to indicate a type or style of furniture. Indeed, the responses of seven of the nine respondents who correctly identified the term "Bauhaus" indicate that the seven perceive the term "Bauhaus" to be a generic term for a style of furniture, a form of furniture design, a school of design for furniture or simply furniture. Not one of these seven respondents stated that the term "Bauhaus" referred to a particular brand of furniture, and the applicant does not allege that any of the respondents were referring to its particular brand of furniture. In short, while we have serious problems with applicant's survey, even if we were to accord it some weight, it simply does not serve to establish that the term "Bauhaus" is not generic as applied to furniture, or in other words, that the term "Bauhaus", when applied to furniture, is capable of indicating origin. [FN4]
In sum, we hold that the numerous excerpts submitted by the Examining Attorney from a wide array of dictionaries, encyclopedias, reference works and periodicals demonstrate that "Bauhaus" is a generic term for a particular type or style of furniture. In addition, we find that applicant's evidence has not rebutted this showing of genericness.
In the event that our determination that the term "Bauhaus" is generic for a type or style of furniture is reversed, we will now consider whether applicant has established that "Bauhaus" has acquired a secondary meaning. In an effort to establish that "Bauhaus" has acquired a secondary meaning, applicant relies not only upon the aforementioned affidavits from furniture retailers and customer letters, but also upon its use of "Bauhaus" since 1974 in this country, and upon its recent annual furniture sales of approximately $25 million and recent annual advertising expenses of approximately $1 million in connection with the term "Bauhaus." In this regard, applicant has submitted numerous specimens of its advertising.
*5 Assuming that "Bauhaus" is not generic as applied to furniture and hence is capable of acquiring a secondary meaning, we find that the evidence submitted by the applicant is sufficient to establish that there is at least a reasonable doubt as to whether secondary meaning has been achieved. Accordingly, if it is determined on appeal that "Bauhaus" is not generic, then in considering all of the evidence of record, we find that applicant has made a prima facie case of acquired secondary meaning. See In re Merrill Lynch, 4 USPQ2d at 1144.
Decision: The refusal to register is affirmed on the basis that the term "Bauhaus" is a generic term for a particular type or style of furniture.
Members, Trademark Trial and Appeal Board
FN2. A review of all of the excerpts submitted by the Examining Attorney does not support the applicant's position that "Bauhaus ... does not refer to a [furniture] style at all, but rather, to the particular designs of that long-closed set of designs made at the school known as 'The Bauhaus.' " (Applicant's brief p. 16). The term "Bauhaus" is used to refer both to furniture made at The Bauhaus and to furniture of that type or style. E.g. Better Homes and Gardens Decorating, supra at p. 92: "Because Bauhaus furnishings have so well withstood the test of time, many fine reproductions of the original pieces are still available."
FN3. The applicant criticized the Examining Attorney because a few of the excerpts submitted by the Examining Attorney were taken from works published outside the United States. However, even if we disregard the excerpts from those works published abroad, the record is still replete with numerous excerpts from works published in this country which demonstrate that the term "Bauhaus" functions in a generic manner to indicate a type or style of furniture. In addition, the applicant criticized the manner in which the Examining Attorney quoted the material in his brief. We find that in his brief, the Examining Attorney abbreviated the excerpts in a manner such that their meanings were fairly and accurately preserved. Moreover, in reaching our decision, we have not relied upon the Examining Attorney's condensed version of the excerpts, but instead have reviewed the actual excerpts themselves.
FN4. We are particularly troubled by the fact that to qualify for the study, a person merely had to be the head of a household. There was no attempt to limit the study to actual purchasers of furniture, much less to actual purchasers of higher-priced, higher-quality furniture who would tend to be more familiar with various styles of furniture such as Chippendale, Louis XIV, Scandinavian and Bauhaus. We simply do not share applicant's totally unsupported position that heads of households "are presumbably familiar with furniture" (reply brief p. 7) if by that the applicant is suggesting that heads of households are necessarily familiar with particular styles of furniture and the names of those styles. Many heads of households rent furnished dwellings, and others rely upon their spouses to purchase furniture. Even among those heads of households who purchase furniture, many do so without reference to particular types or styles other than such broad classifications as modern, traditional and antique.