THIS OPINION IS NOT A PRECEDENT OF THE TTAB

Transcription

1 THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: May 13, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board In re Green Green Earth Inc. Serial No Matthew H. Swyers of The Swyers Law Firm, PLLC for Green Green Earth Inc. Lourdes Ayala, Trademark Examining Attorney, Law Office 106 (Mary I. Sparrow, Managing Attorney). Before Seeherman, Grendel and Taylor, Administrative Trademark Judges. Opinion by Seeherman, Administrative Trademark Judge: Green Green Earth Inc. has appealed from the final refusal of the trademark examining attorney to register the mark VERTICAL FARM, in standard characters, for goods identified as hydroponics grow box in the nature of a closed environment equipped with lights, exhaust system,

2 hydroponics growing container and odor control system. 1 Registration has been refused pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C. 1052(e)(1), on the ground that applicant s mark is merely descriptive of a feature and characteristic of the identified goods. Both applicant and the examining attorney have filed appeal briefs. A term is deemed to be merely descriptive of goods or services, within the meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C. 1052(e)(1), if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services. In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, (CCPA 1978). A term need not immediately convey an idea of each and every specific feature of the applicant s goods or services in order to be considered to be merely descriptive; rather, it is sufficient that the term describes one significant attribute, function or property of the goods or services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is 1 Application Serial No , filed April 23, 2011, based on Section 1(b) of the Trademark Act, 15 U.S.C. 1051(b) (intent-to-use). 2

3 merely descriptive is determined not in the abstract, but in relation to the goods or services for which registration is sought, the context in which it is being used on or in connection with the goods or services, and the possible significance that the term would have to the average purchaser of the goods or services because of the manner of its use; that a term may have other meanings in different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is the examining attorney s position that VERTICAL FARM describes a feature or characteristic of applicant s goods, namely, that the hydroponics grow boxes when used together or apart create a vertical farm or are used for vertical farming. Brief, unnumbered p. 5. As explained in a Wikipedia article on Vertical Farming, vertical farming is a concept that argues that it is economically and environmentally viable to cultivate plant or animal life within skyscrapers, or on vertically inclined surfaces. The article states that American ecologist Dickson Despommier has argued that plant and animal life should be cultivated within skyscrapers. His concept would promote the mass cultivation of plant and animal life for 3

4 commercial purposes in skyscrapers, and would use advanced greenhouse technology such as hydroponics and aeroponics. 2 An April 1, 2007 article in New York magazine, discussed the possibilities of creating a vertical farm along the lines envisioned by Professor Despommier, in which skyscrapers would be converted into crop farms. The article goes on to say that, while calculations about the actual environmental benefits are speculative, a real-life example offers a clue: After a strawberry farm in Florida was wiped out by Hurricane Andrew, the owners built a hydroponic farm. By growing strawberries indoors and stacking layers on top of each other, they now produce on one acre of land what used to require 30 acres. 3 A December 11, 2008 Time Magazine article entitled Vertical Farming, time.com, states: Vertical farming could allow food to be grown locally and sustainably, says Glen Kertz, CEO of Valcent, a tech company based in El Paso, Texas, that s trying out the process. His firm uses hydroponic greenhouse methods to grow upward rather than out. The result saves space -- vital in urban areas -- and allows farmers to irrigate and fertilize with far less waste Office action mailed August 5, 2011, TSDR p. 3. Office action mailed August 5, 2011, TSDR p. 6. Office action mailed June 26, 2012, TSDR p. 5. 4

5 An article on Vertical Farming-Greenhouse Farming on the website Squidoo explains: Vertical farming is a proposal to build high rise buildings within urban areas to enable the growing of food crops to help avoid the impending food shortage which is envisaged in the near future. To put in a nutshell vertical farming is like a high rise greenhouse, sometimes having the label farmscrapers. The article goes on to explain that Hydroponics is the name given to a method for growing plants without the use of soil, instead using mineral nutrient solutions to promote growth. 5 And by 2011, an article described a prototype vertical farm in existence in South Korea as a little three storey [sic] demonstration project in a nondescript building operating much like Dickson Despommier has described in his book, The Vertical Farm. A photograph shows heads of lettuce lined up in stacked layers. 6 It is clear from the foregoing that hydroponics is a method used in connection with vertical farming. As a result, the relevant class of consumers for applicant s goods, seeing the mark VERTICAL FARM in connection with hydroponics grow boxes, would immediately understand that 5 Office action mailed June 26, 2012, TSDR p Real Live Vertical Farm Built in South Korea, Churning Out Lettuce, July 25, 2011, Treehugger website, Office action mailed August 5, 2011, TSDR p. 5. 5

6 these boxes would be suitable for use in a vertical farming structure or environment. Although applicant contends that the term VERTICAL FARM would not promptly trigger a consumer to think of a closed environment equipped with lights, exhaust system, hydroponics growing containers and odor control systems, brief, p. 7, this argument would have us view the mark in a vacuum. As stated above, whether a term is merely descriptive is determined not in the abstract, but in relation to the goods for which registration is sought. Applicant has also pointed out that its grow boxes are not intended for use in multistory greenhouses, or on rooftops of tall buildings. First, the term vertical farming is used not only for the literal farming skyscrapers envisioned by Professor Despommier, but for plants that are grown in a layered arrangement, such as the stacked layers of lettuce shown in the South Korea project. Moreover, even if we were to accept that applicant s grow boxes are not currently intended to be used in multistory greenhouses or on rooftops of tall buildings, as identified in applicant s application the grow boxes can be used in vertical farming. Because the mark immediately and directly conveys information about this characteristic of the identified goods, the mark is merely descriptive. 6

7 Decision: The refusal of registration is affirmed. 7