The Board affirmed a refusal to register the proposed mark TRIPLE CLEANED CORN, finding it to be generic for “animal feed of corn.” For the sake of completeness, the Board also considered and upheld a refusal to register on the ground of mere descriptiveness and lack of acquired distinctiveness. In re Southern Seed & Feed, LLC, Serial No. 87424601 (September 24, 2020) [not precedential] (Opinion by Judge Albert Zervas).

Genericness: The Board first observed that ““[A] term [may be] generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus as a w hole.” In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1638 (Fed. Cir. 2016).

The Board agreed with Examining Attorney Daniel F. Capshaw that the genus of goods is “animal feed of corn” The relevant public comprises individuals who hunt deer and possess livestock.

The Examining Attorney relied on numerous websites offering “triple cleaned corn.” Applicant relied on eight customer declarations stating that TRIPLE CLEANED CORN is not a generic name for animal feed, and that it identifies Southern Seed & Feed, LLC as the source of the goods. In addition, its sales manager averred that this product has sold more than 19 million units since 2002, resulting in revenues of more than $61 million, which, he claimed, proves that the phrase has acquired distinctiveness.

Applicant contended that “triple cleaned” describes the cleaning process for its product, and if the phrase were generic, at least one other application or registration would include that term.

 

The record showed that there are sellers of “animal feed of corn” who offer a product identified as “triple cleaned corn” under their own trademarks. Applicant’s evidence and arguments did not persuade the Board that TRIPLE CLEANED CORN is not generic. The customer declarations had little value because “there is no indication in the record as to what portion of the purchasing public these individuals comprise.” There were no statements form ultimate purchasers (like ranchers) of the product. And the absence of the term on the Trademark Register was meaningless.

 

After carefully considering all of the arguments and evidence of record, we find that the proposed mark TRIPLE CLEANED CORN is understood by the relevant public primarily as the “common descriptive name” for a category of “animal feed of corn.” Princeton Vanguard, 114 USPQ2d at 1830. We find that purchasers of “animal feed of corn” understand the term “triple cleaned corn” as a designation that primar-ily refers to a category within the genus of “animal feed of corn,” Marvin Ginn, 228 USPQ at 530, and that the proposed mark is generic.

Acquired Distinctiveness: By claiming acquired distinctiveness under Section 2(f), applicant conceded that the phrase is not inherently distinctive. Applicant bore the burden of proof on this issue.

The Board first assessed the degree of descriptiveness of the proposed mark and found it to be highly descriptive. “Clearly, no thought or imagination is required to immediately understand that animal feed of corn sold under the proposed mark TRIPLE CLEANED CORN is ‘a clean, high quality grain product for your livestock mixing or feeding purposes.'” Therefore, the burden of proving acquired distinctiveness is commensurately high.

 

The Board gave applicant’s statement of five-years-of-use little weight given the highly descriptive nature of the proposed mark. As to applicant’s evidence, the Board, as indicated, gave little probative value to the eight consumer declarations. Applicant’s sales figures lacked “any context about the industry, an explanation of what a “unit” consists of, or even the number of Applicant’s customers.” Even though applicant’s sales manager attested to 18 years of substantially exclusive use, the Board concluded that the evidence was insufficient to satisfy Section 2(f).

Conclusion: The Board affirmed both refusals.

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TTABlogger comment: Once you are hit with the “highly descriptive” tag, the 2(f) game is over.

Text Copyright John L. Welch 2020.