Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE WESTMINSTER INTERNATIONAL COMPANY, INCORPORATED
Serial No. 73/794,170
July 16, 1992
Hearing: July 2, 1992
Robert W. Koehler and Daniel J. Long for applicant.
Samuel E. Sharper, Jr.
Trademark Examining Attorney
Law Office 9
(Sidney Moskowitz, Managing Attorney)
Before Rice, Simms and Quinn
Westminster International Company, Incorporated (applicant), a Georgia corporation, has appealed from the final refusal of the Trademark Examining Attorney to register the words HAND HAMMERED WOK for woks. [FN1] After an initial refusal to register under Section 2(e)(1) of the Act, 15 USC 1052(e)(1), applicant amended this application to seek registration under Section 2(f) of the Act, 15 USC 1052(f), on the basis that the words sought to be registered have become distinctive of applicant's goods as a result of substantially exclusive and continuous use. The Examining Attorney then refused registration because the term sought to be registered was viewed as either generic or so descriptive as to be incapable of registration. Applicant appealed from this refusal. A copy of the asserted mark, as actually used on the containers for the goods, is reproduced below.
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It is applicant's position that the words sought to be registered convey only "subtle information" and "clearly require imagination, thought and perception to determine the nature of the goods." (Applicant's response, filed May 4, 1990, 4). According to applicant, its asserted mark is "arbitrary and fanciful." Applicant also criticizes the evidence submitted by the Examining Attorney because those references to "hand-hammered" and "hand-hammering" include hyphens which demonstrate that those words are
contractions, convenience words which do not exist in the English language as generic/descriptive terms in any recognized art or industry. (Applicant's brief, 8).
Applicant further argues that
a grammarian would not equate the words "Hand Hammered" to describe the process for the manufacture of a wok that is properly termed as being "hammered by hand." (Applicant's brief, 10).
Applicant's arguments are spurious. Rather, we agree with the Examining Attorney that the two words sought to be registered by applicant are unambiguously descriptive in meaning and that the record contains convincing evidence of the public perception of these words--that of generic words naming applicant's product.
The record of this case demonstrating genericness, much of which has been submitted by applicant, includes numerous references by applicant and others using the words sought to be registered in descriptive and generic ways. The following references to applicant's asserted mark are found in applicant's cookbook entitled "Wok cooking for beginners":
Because there are many types of woks available for sale on the market, the novice wok cook should make some distinction among them. Some woks are sold individually while others are sold as sets with lids, rings, etc. The materials that woks are made of are spun sheet steel, hand hammered iron, (low carbon steel), and stainless steel ...
*2 A copy of a script of applicant's 1982 television advertisement run on national cable television reveals use of applicant's asserted mark as follows:
You too can prepare the same meals served in Chinese restaurants in your home using the authentic hand hammered wok ... This is the authentic hand hammered wok used daily in China and in fine restaurants across the world ...
Another television script, from a commercial broadcast in 1988, discusses applicant's product as follows:
[A]n authentic hand-hammered wok from the People's Republic of China. When you think about it, who should know more about woks and Chinese cooking than the Chinese? These woks are all made by hand, they're made from low carbon steel which is very like the iron we use in those old iron skillets of ours ... Now, we were talking before about the many, many advantages that the hand-hammered wok has over all the imitation woks on the market ...
The 14 inch hand-hammered wok, the time dome, the fire ring, the book for beginners ...
Because these are hand-hammered, the supplies are really limited.
Information in another television commercial indicates that applicant's goods are formed by placing a flat disk of metal into a wooden mold and pounded into shape with a hammer. Exhibit 7. Another television advertisement contains similar information as well as the following statements:
But more important than that; if you can see from where you're standing, inside the wok, the marks from the hammering have been left in there. Now remember, these are just marks, they are not deep holes or indentations. But those hammer marks together with the shape of the wok are what is helping to hold your food to the side but still allowing the liquids to drain and collect in the middle. (Exhibit 8).
A photograph of a "typical home show booth" of applicant also shows use of the words "hand hammered" in lower case.
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The representation of an arm holding a hammer above an elliptical object, shown on applicant's containers, reinforces the descriptive significance of "HAND HAMMERED WOK."
A newspaper article (Exhibit 22), which applicant points to as an example "in which the subject mark is identified as a trademark," states:
I am talking about the man with the wonderful hand-hammered wok straight out of Darkest China where they've been making them like this for precisely 9,376 years.
The Examining Attorney has also introduced excerpts from HFD--The Weekly Home Furnishings Newspaper which indicate that one manufacturer produces a hand- hammered line of cookware and that another has marketed a "hand-hammered Chinese cooking work [sic]." Finally, in response to a question from the Examining Attorney concerning whether applicant's goods are hammered by hand, applicant stated (Amendment, December 18, 1989):
The goods in question are found in the state in which they are sold by hammering the metal by hand which is a unique process in the industry.
*3 The evidence persuasively demonstrates that hand-hammered woks are a category (genus) of woks and that this term is understood by the relevant public as primarily referring to that category of goods. See H. Marvin Ginn Corp. v. International Association of Fire Chiefs, 782 F.2d 987, 228 USPQ 528, 530 (Fed.Cir.1986). What that court stated in In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112 (1987) (involving the term SCREENWIPE) seems pertinent:
Gould's own submissions provided the most damaging evidence that its alleged mark is generic and would be perceived by the purchasing public as merely a common name for its goods rather than a mark identifying the good's source ... Whether compounded as "screen wipe"--two words--or "screenwipe"-- one word--either is ordinary grammatical construction ... Nothing is left for speculation or conjecture in the alleged trademark. The compound immediately and unequivocally describes the purpose, function and nature of the goods as Gould itself tells us. Gould has simply joined the two most pertinent and individually generic terms applicable to its product, and then attempts to appropriate the ordinary compound thus created as its trademark.
The fact that applicant may also use other descriptive words, such as "hand made," or that others use such words as "hand pounded," to describe their competitive products does not mean that the highly descriptive words chosen by applicant are a trademark. All generic terms should be freely available for use by competitors.
We conclude that the Examining Attorney has met his burden with clear evidence showing the generic use of the words sought to be registered. Even if we were to determine that these words were not generic, we would affirm the refusal of the Examining Attorney that the Section 2(f) evidence is insufficient to convince us that the words sought to be registered have become distinctive of applicant's goods.
Decision: The refusal of registration is affirmed.
Members, Trademark Trial and Appeal Board