Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE BUDGE MANUFACTURING CO., INC.
Serial No. 507,974
March 31, 1987
Hearing: November 12, 1986
Eugene E. Renz, Jr. and John P. Donohue, Jr. for Budge Manufacturing Co., Inc.
Eric S. Wachspress
Trademark Examining Attorney
Law Office 5
(Paul E. Fahrenkopf, Managing Attorney)
Before Allen, Rooney and Cissel
Members
Member
Budge Manufacturing Co., Inc. filed an application to register the mark LOVEE LAMB (LAMB disclaimed) for automotive seat covers alleging use since 1974. Registration was refused under Section 2(a) on the ground that the mark consists of or comprises deceptive matter and under Section 2(e)(1) because the mark, as applied to the goods, is considered to be deceptively misdescriptive. Upon the filing of a disclaimer of the word 'LAMB', the refusal under Section 2(e)(1) was withdrawn. The refusal under Section 2(a) was made final and applicant has appealed.
To determine whether a term is deceptive within the meaning of Section 2(a) of the statute we first must determine whether the term is misdescriptive as applied to the goods. If so, the next inquiry is, is it deceptive or, put another way, is anyone likely to believe the misrepresentation? Finally, would the misrepresentation materially affect the decision to purchase the goods? See In re Shapely, Inc., 231 USPQ 73 (TTAB 1986) and cases cited therein.
As to the first inquiry, we note that applicant makes much of the fact that the term in its mark to which exception has been taken is 'lamb' while its product is 'simulated sheepskin' [FN1] seat covers and argues that no one would expect to purchase a ready-made lambskin seat cover. By way of further explanation, applicant argues that, 'lambskin, if it means anything at all, . . . means a sheared hide or leather covering that is ideal for preventing fatigue'. On the contrary, Webster's Third New International Dictionary 1976 indicates that the terms 'lambskin' and 'sheepskin' might be interchangeably used. It defines lambskin as 'a. a lamb's skin or a small fine-grade sheepskin or the leather made from either, b. such a skin dressed with the wool on and used esp. for winter clothing'. Sheepskin is defined as 'the skin of a sheep, also, leather prepared from it'. While there may be some differences between the two, we do not believe the distinction would be readily apparent to the average purchaser of automobile seat covers.
In addition to the goods identified in its application, applicant also produces a seat cover made from 100% sheepskin. In view of the aforementioned definitions, we believe that the term 'LAMB' as a designation therefor would be descriptive usage. Since the particular product in question here is admittedly not sheepskin (or lambskin), our first inquiry is answered in the affirmative.
Is anyone likely to believe the product is made of lamb or sheepskin? The answer to that is the same. Applicant argues here that its specimens of record clearly indicate that its product is 'simulated sheepskin' made of pile stretch fabric and that purchasers cannot be misled by the name given to the product when the packaging clearly identifies the nature of the product. We cannot agree that the literature surrounding the product can change the nature of the term used to identify it. No matter what the packaging may say, the term is still misdescriptive of the goods. Apart therefrom the original specimens contained no such information so it is clear that at least some of applicant's products are and have been sold without benefit of these disclaimers. Moreover, there is no requirement that they be so sold and applicant is free to offer its seat covers for sale with or without the informative printed matter.
*2 We do not believe that this case equates with In re Robert Simmons, Inc., 192 USPQ 331 (TTAB 1976) wherein WHITE SABLE was found not to be deceptive when applied to brushes used for artistic painting. In the WHITE SABLE case there was credible evidence that sable brushes are commonly known in the field to be made from the hair of a variety of animals other than the sable so that purchasers would not be deceived by the mark WHITE SABLE to believe that the synthetic bristles of the brushes are made of sable hair. In this case, it is clear that automobile seat covers are indeed frequently made of genuine sheepskin. Moreover, we believe that the final statement in the WHITE SABLE case to the effect that '. . . applicant's literature shows that the brushes are sold from display racks in which the legend 'made with the miracle synthetic brush filament' is clearly printed' was of minor significance in the decision reached. That is, had the mark been deceptive in accordance with Section 2(a), the information on the display rack could not have transformed it to a nondeceptive designation.
Finally, would a purchaser be motivated to buy by the misrepresentation? Again, we believe the answer is yes. Sheepskin seat covers are advertised to be warm in winter, cool in summer (See applicant's Exhibit C) and generally very comfortable. A purchaser seeking those attributes is likely to be persuaded by applicant's mark to buy its seat covers.
Accordingly, we affirm the refusal to register.
D. B. Allen
L. E. Rooney
R. F. Cissel
Members, Trademark Trial and Appeal Board
FN1. After filing its brief on appeal, applicant field on August 15, 1986, a supplement thereto referring to an interview with the Examining Attorney and indicating that during that interview it was suggested that the identification of goods be amended to read 'simulated sheepskin automotive seat covers' and that the exhibits attached to applicant's brief were discussed. Applicant therefore filed the suggested amendment and two additional exhibits with its supplemental brief. The Examining Attorney in its brief, filed September 10, 1986, indicated its acceptance of the exhibits and although he did not specifically accept the amendment, his reference to applicant's goods as 'simulated sheepskin automobile seat covers' leads us to believe that it was his intention to do so.