Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE SAFARILAND HUNTING CORPORATION
Serial No. 74/025,246
August 26, 1992
Robert B. Kennedy of Kennedy & Kennedy for applicant.
Trademark Examining Attorney
Law Office 14
(R. Ellsworth Williams, Managing Attorney)
Before Sams, Rice and Quinn
Opinion by Quinn
An application has been filed by Safariland Hunting Corporation, doing business as Tink's Safariland Hunting Corporation, to register the mark SAFARILAND for "animal scents for use by hunters." [FN1]
The Trademark Examining Attorney finally refused registration on the ground that the mark sought to be registered, as it appears on applicant's specimens of trademark use, does not function as a trademark within the meaning of Sections 1, 2 and 45 of the Act.
Applicant has appealed. Applicant and the Examining Attorney have filed briefs. An oral hearing was not requested.
A copy (front and back) of one of the specimens (a container for the goods) is reproduced below. [FN2]
Applicant contends, on the one hand, that the applied-for mark is being used on the specimens in the manner of a trademark to distinguish applicant's products from the like products of others. The Examining Attorney maintains, on the other hand, that the mark sought to be registered, as shown by the specimens of record, is not being used in a trademark manner, that is, not in a way calculated to project to the purchasing public a single source or origin for the goods.
The starting point of our analysis is Section 45 of the Trademark Act, as amended. In this section, "trademark" is defined, in pertinent part, as
any word, name, symbol, or device, or any combination thereof used by a person.... to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of goods, even if that source is unknown.
The same section further provides that
a mark shall be deemed to be in use in commerce on goods when it is placed in any manner on the goods or their containers.... or on the tags or labels affixed thereto.... and the goods are sold or transported in commerce.
Implicit in this definition is a requirement that there be a direct association between the mark sought to be registered and the goods specified in the application, that is, that the mark be used in such a manner that it would be readily perceived as identifying the specified goods and distinguishing a single source or origin for the goods. Not every word or combination thereof which appears on or in connection with an entity's goods functions as a trademark. In re Remington Products Inc., 3 USPQ2d 1714, 1715 (TTAB 1987). The mere fact that a designation appears on the specimens of record does not make it a trademark.
Since the specimens of record show how the applied-for mark is actually used in commerce, we must primarily look to the specimens to see if the designation would be perceived as a source indicator. However, we may also consider other evidence bearing on the question of what impact applicant's use is likely to have on purchasers and potential purchasers. See: In re Univar Corp., 20 USPQ2d 1865, 1867 (TTAB 1991), citing In re Letica Corporation, 226 USPQ 276, 277 (TTAB 1985); In re Post Properties, Inc., 227 USPQ 334, 335 (TTAB 1985); and In re Executone Inc., 191 USPQ 57, 58 (TTAB 1976) [consideration given to specimens "and possibly any other material submitted during the prosecution of the application which may reflect an intention to make use of the mark in question in a trademark sense."] Here, applicant has submitted a copy of its products catalog.
*2 In the case before us, we are persuaded that the designation SAFARILAND functions as a trademark and would be perceived as a trademark by purchasers. We concede that SAFARILAND, as it appears on the specimens of record, is not the type of trademark use we are most accustomed to seeing on product packaging. SAFARILAND is not set out on the packaging in large, bold letters; it is, instead, part of the phrase or slogan "Made by the Good Ole Boys at Safariland!" Having said this, however, we hasten to add that in the present case, unlike some of the other cases which have come before the Board, we have the benefit of other evidence, namely, a products catalog showing applicant's use and promotion of SAFARILAND. See, e.g.,: In re National Training Center of Lie Detection, Inc., 226 USPQ 798, 799 (TTAB 1985) [no exhibits such as promotional material attesting to trademark recognition--in the absence of such evidence, the impact created by the mark must be determined solely by reference to the specimens].
A review of the catalog shows use of SAFARILANDTM HUNTING PRODUCTS on the front cover. The designation SAFARILAND appears in some form or other throughout the catalog. For example, in a listing of "Contents" on the inside cover, the first listing is for "Tink's(R) SafarilandTM." The back cover of the catalog is directed to dealers for applicant's products, informing them of applicant's multi-media advertising campaign. The back cover includes the following information: "A Greatly Expanded Magazine ad schedule cements the Tink's(R) SafarilandTM & Ben Lee(R) names in the hunter's mind" and that "Hunters everywhere will be seeing Tink's(R) SafarilandTM & Ben Lee(R) ads in popular hunting publications through its greatly increased advertising schedule." Such uses of SAFARILAND in applicant's catalog enhance the use on applicant's containers--that is to say, the catalog convinces us that purchasers, when seeing SAFARILAND on the containers, would perceive the designation as indicating source or origin. We think that SAFARILAND, as shown by the record taken as a whole, functions as a trademark and will be recognized in itself as an indication of origin for animal scents. The term SAFARILAND is a trademark that creates a commercial impression apart from the slogan.
In reaching our decision in this case, we wish to distinguish the facts of this case from those of In re Bose Corporation, doing business as Interaudio Systems, 546 F.2d 893, 192 USPQ 213 (CCPA 1976). In re Bose Corp., which was not cited by either applicant or the Examining Attorney, would appear to suggest, at least on its face, that only the designated specimens of record may be considered in determining whether a given term would be perceived as a trademark. In that case, applicant sought to register the mark SYNCOM for loudspeaker systems. The specimens of record were instruction sheets and warranty registration cards attached to the goods. The Court affirmed the Board's refusal to register the designation SYNCOM for loudspeaker systems because, as shown by the specimens of record, SYNCOM merely related to a speaker-testing computer and did not serve a trademark function with respect to loudspeakers. In addition to the specimens of record the applicant submitted an advertisement which stated that "SYNCOM is your guarantee of quality from BOSE" and "as your assurance of stringent quality control, this mark [SYNCOM] appears on the back panel of every BOSE speaker." In re Bose, supra at 216. Although the applicant considered the advertisement persuasive evidence to show that SYNCOM served to indicate origin, the Court stated that "[t]he point is, however, that an application for registration must be adjudged in light of the specimens of record." Id. (emphasis in original). The Court concluded that the specimens "fail to support, indeed they contradict, the use of SYNCOM as a trademark with respect to loudspeaker systems...." Id. It is noteworthy, however, that the Court stopped short of ignoring the material other than the specimens. Rather, in Bose, the Court did not need to look any further than the specimens, which contradicted use of the mark for loudspeakers, showing use instead with respect to a speaker-testing computer. In the case now before us, the specimens reveal no such contradiction of applicant's claim of trademark use of SAFARILAND.
*3 Decision: The refusal to register is reversed.
Members, Trademark Trial and Appeal Board
FN2. Applicant submitted, with its appeal brief, another container for the goods which appears, from our review, to be identical to the original specimens of record. While the Examining Attorney objected to exhibit A as being untimely filed, we see no problem with this submission since the container already was of record as an original specimen.