Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE GUILFORD MILLS, INC.
Serial No. 74/288,186
October 6, 1994
Original Release: September 26, 1994
Hearing: June 21, 1994
Trademark Examining Attorney
Law Office 10
(Ron Sussman, Managing Attorney)
Before Rice, Simms and Hanak
Administrative Trademark Judges
Opinion by Simms
Guilford Mills, Inc. (applicant), a Delaware corporation, has appealed from the final refusal of the Trademark Examining Attorney to register the asserted mark shown below.
for microfiber fabrics for use in the manufacture of apparel, for use in upholstery, draperies, home textile fashions and for automotive application. [FN1] The Examining Attorney has refused registration under Section 2(e)(1) of the Act, 15 USC 1052(e)(1), arguing that the asserted mark is highly descriptive or generic for a type of fabric and that the presentation of applicant's mark is not sufficiently stylized to warrant registration on the Principal Register.
There is no dispute in this case that the term "microdenier" is, at the very least, a descriptive term for a particular fabric. The Examining Attorney has made of record, among other things, the following excerpts from the Nexis computer database.
"Many of today's most popular fabrics--including microdeniers, coated fabrics, iridescent sheers, polyurethanes and olefins--cannot tolerate prolonged high temperatures and demand special care..
(Women's Wear Daily, February 11, 1992).
Introduced in 1990, Micromattique was the first microdenier fiber for home furnishings.
(The Weekly Home Furnishings Newspaper, January 20, 1992)
Malden is showing its new microdenier flocked velvets along with abstract geometric jacquard styles, according to Jim Allen, director of marketing.
(The Weekly Home Furnishings Newspaper, January 6, 1992)
Greensboro's Guilford Mills Inc. has been successfully marketing microdenier fibers.
(The Business Journal-Charlotte, December 30, 1991)
Gerlinde Heinze tonis, a children's dress designer from Kansas City, said she will try working with a microdenier fabric for the first time, and left a sample order with Lanscot.
(Women's Wear Daily, November 22, 1991)
(The Business Journal-Charlotte, November 18, 1991)
The Renaissance collection, made of Du Pont microdenier nylon, is composed of six multicolored contemporary patterns priced at $7 to $9 a yard, the top end of the velvet ...
(The Weekly Home Furnishings Newspaper, October 7, 1991)
But that all changed late last year when the first microdenier home furnishings fiber was introduced by Du Pont.
*2 (The Weekly Home Furnishings Newspaper, September 30, 1991)
Toray has added to its line of Shingosen fabrics, known for their supple, silk-like hand, with finer microdeniers and new finishes.
Also, applicant has disclaimed the term "MICRODENIER" apart from the mark as shown and has made clear that it is not claiming any proprietary rights in the word per se but is rather claiming rights in the allegedly distinctive arrangement or display of the word.
The Examining Attorney argues that applicant's mark, when viewed as a whole, does not create a separate commercial impression over and above that created by the descriptive word MICRODENIER. He maintains that the "slight" design elements of applicant's mark--the fine line lettering and the overlapping "o" and "d"--are insufficiently distinctive to make applicant's mark inherently distinctive. Accordingly, and because applicant has not introduced any evidence of acquired distinctiveness in the stylization of its mark, the Examining Attorney maintains that applicant's mark is unregistrable on the Principal Register.
It is applicant's position, on the other hand, that the design elements of its mark, including the interlocking letters "o" and "d" and the fine script, create a commercial impression separate and apart from the descriptive significance of the word "MICRODENIER." That is to say, applicant maintains that the stylized form of applicant's mark is displayed in inherently distinctive style. In this regard, applicant argues that the fine line lettering and the interlocking letters
cleverly suggest a closely knitted fabric. Microfiber fabric is made of very fine man-made fibers knit together in very small interlocking stitches. To the professional purchaser of microfiber fabric (the finished product manufacturer), the stylization of Applicant's mark is distinctive. Thus, potential purchasers immediately perceive the inherently distinctive nature of the mark.
(Applicant's brief, 4).
It is applicant's position, therefore, that, given the very fine fiber content of applicant's fabric, the design elements serve to create an inherently distinctive mark separate and apart from the descriptive word.
It is settled that a display of descriptive or otherwise unregistrable matter is not registrable on the Principal Register unless the design features of the asserted mark create an impression on the purchasers separate and apart from the impression made by the words themselves, or if it can be shown by evidence that the particular display which applicant has adopted has acquired distinctiveness. In re Miller Brewing Company, 226 USPQ 666 (TTAB1985) and In re Behre Industries, Inc., 203 USPQ 1030, 1032 (TTAB1979) and cases cited there. Both applicant's attorney and the Examining Attorney have discussed in their briefs cases dealing with attempts to register allegedly distinctive displays of descriptive or generic matter. See, for example, In re Grande Cheese Co., 2 USPQ2d 1447 (TTAB1986), In re Clutter Control, Inc., 231 USPQ 588 (TTAB1986), In re School Book Fairs, Inc., 229 USPQ 556 (TTAB1986), In re Miller Brewing Company, supra, United States Lines, Inc. v. American President Lines, Ltd., 219 USPQ 1224 (TTAB1982), In re Behre Industries, supra, and In re Jackson Hole Ski Corporation, 190 USPQ 175 (TTAB1976). The marks involved in those cases are reproduced in the briefs of the respective attorneys.
*3 As noted above, applicant is not claiming that its particular display of descriptive matter has acquired a secondary meaning. Rather, applicant believes that its display is sufficiently distinctive (inherently distinctive) to permit registration on the Principal Register. We disagree. Upon careful consideration of the case law and the arguments, we agree with the Examining Attorney that applicant's mark is insufficiently stylized to create an inherently distinctive display that is registrable, without more, on the Principal Register. See In re Grande Cheese Co., supra, United States Lines, Inc. v. American President Lines, supra, and In re Behre Industries, Inc., supra. Compare In re School Book Fairs, supra, where the mark shown below
was held to be sufficiently stylized to warrant registration of the mark on the Supplemental Register--that is, that it was determined to be capable of distinguishing applicant's services from those of others (with a disclaimer of all wording), and In re Miller Brewing Company, supra, holding that the mark shown below
had acquired a secondary meaning apart from the descriptive significance of the word "Lite" per se. Moreover, we have nothing but argument that the design elements of applicant's mark "cleverly suggest" the micro fiber fabric and that its mark inherently connotes its closely knitted fabric. Applicant has presented no evidence in support of this argument, such as affidavits or declarations from purchasers, about this alleged inherent commercial impression engendered by its mark.
Decision: The refusal of registration is affirmed.
Administrative Trademark Judges Trademark Trial and Appeal Board
FN1. Application Serial No. 74/288,186, filed June 25, 1992, claiming use and use in commerce since August 1990. In the original application, applicant disclaimed "the exclusive right to the use of the wording MICRODENIER apart from the mark as shown."