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IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
EXAMINING ATTORNEY'S APPEAL BRIEF Facts The previous examining attorney refused registration on the grounds that the mark as shown in drawing is de jure functional and, as such is unregisterable under the Act. 15 U.S.C. Sections 1051, 1052, and 1127; Trademark Act Sections 1, 2, and 45. Applicant argued otherwise and submitted evidence of acquired distinctiveness that was considered insufficient. This appeal followed. Issues on Appeal 1. Whether the product configuration submitted for registration is functional as a matter of law, and therefore unregisterable; and, if not, 2. Whether the evidence of acquired distinctiveness of record is sufficient to show that the relevant consumer understands the configuration to be a source identifier. Argument APPLICANT’S VALVE CONFIGURATION IS FUNCTIONAL AS A MATER OF LAW, AND
THEREFORE, UNREGISTERABLE AS A TRADEMARK Test for Functionality A product configuration is considered functional if it embodies a design feature of the goods that is superior to other available designs and thus provides a competitive advantage to the user. In such a case the proposed mark is considered de jure functional and unregistrable on either the Principal Register or the Supplemental Register. See: In re Morton‑Norwich Products, Inc., 671 F.2d 1332, 213 USPQ 9 (CCPA 1982). Or, as a Court in a different circuit has characterized the test, if the underlying design is one which would be costly to do without, then the proposed mark is de jure functional. W.T. Rogers Co., Inc. v. Keene, 778 F.2d 334, 228 USPQ 145 (7th Cir. 1985). On the other hand, if the proposed mark embodies a design feature of the goods which is one of many equally‑feasible, efficient and competitive alternatives, then the mark is merely de facto functional and may be registerable on the Principal or the Supplemental Register. TMEP section 1202.03(a)(i)(C). Applicant argues four elements of the fuel valve the design of which it believes are not dictated by function and are thus, registerable: (1) The external look of the outer casing; (2) The external look and placement of the orifices; (3) The external look and placement of the actuating means; and (4) The external look and placement of the extension neck. The
Outer Casing The outer casing of the valve is as applicant itself admits, the primary feature of the valve. “Moreover, since the extension neck portion of the valve [element (4) above] eventually becomes hidden in the fuel tank, and the outlet orifice [element (2) above] eventually becomes hidden in the fuel line, the hexagonal outer casing with the “Pingel” trademark forms the principal feature of the mark that is recognized by consumers.”[1] Applicant’s response of February 23, 1996, p. 3. Applicant devotes a great deal of its response arguing that the hexagonal casing is in no way functional and serves no functional purpose. It has provided evidence that purports to show that the casing is merely an arbitrary design, devoid of utilitarian function. Yet it has also provided a great deal of evidence that contradicts this. It must be understood that motorcycle fuel tanks are fitted with threading on the underside that is designed to accept a fuel valve. The casing of applicant’s fuel valve, like all motorcycle fuel valves, is threaded in order that it may be secured to the underside of a motorcycle fuel tank by means of an adapter nut. In order for the valve to be installed onto the fuel tank, the valve must be threaded onto the tank. This requires a turning motion be applied to the valve and/or the adapter nut during installation. As the valve is turned and therefore, threaded into the tank, the resistance becomes greater as the valve is tightened onto the tank. A particular torque must be employed in order that fuel does not leak out of the tank at the point of installation. This necessitates that some degree of force be applied either to the valve, or the adapter ring, and if the ring, then the valve body must be held in place while this force is applied in order that the valve is positioned properly for ease of use, and in order that the connection to the fuel line (the “orifice”) is in the proper position for installation. The familiar hexagonal shape of today’s nuts and bolts is no accident. The hexagonal shape allows that there is always a parallel side to any of the flat surfaces on the nut or bolt. Thus, an open-end wrench may be applied to any of the flat surfaces as an aid to turning. A larger number of flat surfaces would result in a smaller surface area for the wrench, resulting in a greater number of stripped nuts and bolts. Fewer flat surfaces would require that the wrench be turned in a greater arc before the wrench may be removed and reapplied to the nut or bolt for further turning; a handicap in tight surroundings. Six sides have proven over time to be the optimum number for this purpose. Suffice it to say that the hexagonal shape has become the standard shape for the heads of nuts and bolts, as well as any device that requires aid in turning by a wrench, and that wrenches and sockets have been designed to accommodate this shape. Applicant would have us believe that it is merely an accident of aesthetics that its threaded outer casing is designed in a hexagonal shape which is coincidentally exactly the right size to fit a 25 millimeter open end wrench; that the ability to tighten the valve onto the tank with a wrench designed for the purpose as opposed to using pliers with rags on the jaws or using only ones own hands provides no advantage in installation, and is, in fact, an “unintended misuse” of the product. Applicant’s appeal brief page 6. What applicant characterizes as “misuse” is in the eyes of others, as we shall see, a clear and obvious installation advantage. Applicant argues that “[t]he particular hexagonal shape of the valve body suggests, but does not function, as a hexagonal nut. To apply wrenches to the fine polished surface of the valve is unnecessary and inadvisable (and even unthinkable) for a motorcycle enthusiast; it would spoil the surface and damage the valve.” Response of February 23, 1996, p. 4. Applicant has submitted magazine articles with its July 10, 1995 response that contradict this statement.[2] “Exhibit B” contains an article from the August 1995 issue of “Hottest Custom Iron” magazine that gives the installation procedures for the Pingle fuel valve. The article specifically discusses using two wrenches to install the valve, one wrench on the adapter nut, the other on the valve body. The article states on page 30: “Both wrenches have a layer of electrical tape on their jaws to avoid scratching the chrome on the body of the petcock.”[3] The article even contains a photograph of the wrench with electrical tape about to be employed in turning the valve body. In another article, the March 1995 issue of “Thunder Alley,” submitted with the same response, wrenches are also used to tighten the fuel valve body. “I had to use two wrenches to hold the adapter and the valve.” Thunder Alley, March, 1995, p. 30. This is accompanied by a large, two column photo of an adjustable wrench with masking tape on the jaws, gripping the hexagonal body of the fuel valve. The wording under the photo reads: “...we’re positioning the new petcock for the final fit. (Note the use of masking tape on the wrench flats to protect against scarring the aluminum. Simple!).” And that is just the point. It’s simple. It works better. It’s an improvement over the old technology. That is what functionality is all about. Morton-Norwitch, supra. Applicant argues on page 2 of it’s February 23, 1996 response: “While these elements [including the fuel valve outer casing] may seem to be minor attributes to an observer new to motorcycle valves, they are, nevertheless, very important to the consumers of these products.” It is quite true that this hexagonal shape is very important. Were it not important, there would be no argument as to the functionality of the configuration. Anyone who has worked on a motorcycle, or anyone who can imagine the installation of the valve will understand quite well the clumsiness and resultant frustration of using Channel-Lok® or Vise-Grip® pliers with rags on the jaws, or one’s own hands when attempting to tighten the fuel valve to the fuel tank. Were there available a brightly chrome plated[4] valve with a hexagonal shaped body just perfect for installation with a wrench, it might be purchased on the basis of this “minor attribute” alone. The “minor attribute” is that important. But its importance lies in the fact that the valve “works better,” i.e. is easier to install, because of this attribute; the very heart of de jure functionality. In re R.M. Smith, Inc. 219 USPQ 629 (TTAB 1983), aff’d. 222 USPQ 1 (CAFC 1984); In re Avocet, Inc., 223 USPQ 517 (TTAB 1984). Applicant has submitted as evidence of the non-functional nature of the hexagonal shape, a report from the Packer Engineering Corporation (Exhibit E - Packer Engineering Report) which states in pertinent part that “[t]he configuration of the main body has no significance with respect to how the valve is installed.” Exhibit E, p. 3. The report goes on to quote purportedly from the package directions that include no indication that a wrench is needed in the installation of the valve body, only on the adapter nut. This report analyses the package instructions and the valve and indicates that a wrench is not required in the installation of the valve and therefore, the shape of the valve body provides no particular advantage during installation. The report does not specifically say that the applicant’s method of installation is superior, although it implies as much when discussing the disadvantage of the wrench (scratching the chrome). Actually, the report from the Packer Engineering Corporation only argues that a wrench is not required in the installation of the valve. It does not answer the question as to what is the best way to install the valve. Although the report does not answer the question as to what is the best method of installation for this particular valve, the question does seem to answered by the authors of two of the national magazine articles which applicant has submitted as evidence. These two professional writers on motorcycle repairs, when discussing the installation of the valve, both indicate that they find it easiest to employ a wrench on the body of the valve during installation. Some people thread the adapter nut onto the tank bung, then screw the petcock onto the adapter nut. Others thread the nut onto the petcock, then thread the nut onto the tank bung. I’m lazy and I’d rather not try twirling the petcock around beneath the tank. Sometimes there isn’t enough room. Here’s my approach...I slide the nut down over the fuel strainer. Next I insert the fuel strainer into the tank bung, position the petcock so the outlet is pointing in the proper direction, and use the adapter nut to draw the petcock and the tank together...after making the petcock and adapter nut finger tight, I use two wrenches to do the final tightening. One wrench holds the petcock in the proper position, while I turn the nut with the other. Hottest Custom Iron, August 1995, p. 30. Emphasis added. · Hand screw the valve into the adapter - leave room for final tightening. · Screw the assembly onto the stock threaded bung. Use protection on the wrench flats to prevent scarring the aluminum - I used masking tape and an adjustable wrench. · Tighten the adapter first to the tank - then tighten the valve so the arm has full freedom of swing in all positions, and the outlet has no constrictions. I had to use to use two wrenches to hold the adapter and the valve. Thunder Alley, March, 1995, p. 30. Emphasis added. Notice that both methods employ wrenches on the body of the valve during installation. Applicant is correct in its statement on page 4 of its February 23, 1996 response that the shape of the body valve “suggests” a hexagonal nut. It has apparently suggested this to the authors of two articles in national motorcycle magazines on valve installation just as the shape would suggest this to anyone. It seems that rather than merely suggest a hexagonal nut, the valve body fairly cries out for a wrench during installation. And this only makes sense since the body must be turned (or held in position while the adapter nut is turned) and applicant has helpfully provided a valve body that exactly fits a wrench, the most common tool for turning nuts and bolts. The report from the Packer Engineering Corporation also includes videotape that first shows many fuel valves. It must be noted that all but the stock Harley Davidson valve look remarkably like the applicant’s, although it is unclear from the silent testimony whether these are the valves of other manufactures, or those of applicant. Second, the videotape shows pair of hands installing a Pingle valve, a stock Harley Davidson valve, and a cylindrical valve onto a fuel tank. It is noted that the disembodied hands do not employ a wrench on any of the valve bodies. It is difficult to judge from the videotape the amount of torque the hands convey, but the valve seems to be snugged up to the tank with very little effort at all. So little effort in fact, that it is doubtful that the connection would not leak gasoline, were there gasoline in the tank. A wrench with the tape on the flats certainly would make the job of tightening the valve to the proper torque much easier, just as the magazine articles recommend. Further, the fact that there is there is no great 1200 cc Harley Davidson engine under the tank in the video greatly facilitates the applicant’s method of installation. It is quite easy to install the valve when the underside of the tank is unobstructed by the heads and cylinders of an engine. Depending upon the particular model of motorcycle being worked on, because of engine components in the way, there may not even be enough room to turn the valve in a complete circle when threading it onto the tank. Hottest Custom Iron, August, 1995, p. 30. This is why the author of this article when discussing the method of installation purportedly recommended by the package directions says that “Sometimes there isn’t enough room.” That is when the wrench comes out. It seems quite clear that the hexagonal shape of the valve body will tempt many, if not most people to utilize a wrench on the body of the valve during installation. Whether this is “unintended misuse” or simply common sense is irrelevant. And this is true notwithstanding the report from the Packer Engineering Corporation, which shows and discusses a no doubt quite adequate method of installation. It is however, probably not the best method of installation considering the happy coincidence that a 25-millimeter open-end wrench, or an adjustable wrench (with tape on the jaws, of course) will greatly facilitate installation. This remains true whether it was the intention of applicant when designing the valve or simply a lucky accident. The applicant also argues that the instructions for installing the stock Harley Davidson valve do not contemplate the use of a wrench. But that is because the stock Harley Davidson valve is not manufactured with a convenient hexagonal body for use with a wrench. A wrench will not fit on the stock Harley Davidson valve. The stock Harley Davidson valve will not accommodate this superior method of installation. This “primary feature” is obviously, as applicant itself admits, very important to the consumers of these products. It is quite obviously important to “an observer new to motorcycle valves” as well as those experienced in the installation and operation of the valves as evidenced by the articles of record. To give the applicant a monopoly via the trademark laws of this important feature would violate public policy, as any manufacturer of fuel valves should be free to employ a hexagonal shaped valve body in order to take advantage of the fact that a wrench on the body makes the valve easier to install, notwithstanding possible alternative but less satisfactory methods of installation. Applicant has made it abundantly clear throughout the prosecution of this mark that it is claiming the functional hexagonal shape of the valve body. This superior design would be foreclosed to applicant’s competitors in perpetuity upon granting a trademark registration. Public policy demands free and open competition in reproducing a functional attribute restrained only for a limited time by the patent laws, not restrained in perpetuity by the trademark laws. In the words of Justice White of the US Supreme Court “reproduction of a functional attribute is a legitimate competitive activity.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc. 456 US 844; 210 USPQ 1 (1982). Reproduction of a simple hexagonal shape in order to facilitate use of a wrench must too, remain a legitimate competitive activity Look and Placement of the
Orifices The look and placement of the orifices (the point at which the fuel line of the motorcycle is connected to the valve) are dictated by the make and model of the motorcycle the valve is designed to work with. The orifice is a particular outside diameter in order that it exactly fit the inside diameter of the motorcycle’s fuel line. The slight bulge at the end is used to keep a fuel line clamp around the fuel line from pulling off, and is a common feature of all such fuel line connectors as shown by the many examples of competitive fuel valves of record. The placement of the orifice is dictated by the placement of the fuel line of the particular make and model of the motorcycle for which the valve is designed. This is all quite evident based upon common sense as well as a comparison of applicant’s valve with the alternative valves submitted as evidence, as well as the display of valves in the videotape, and in the many magazine articles and advertisements of record. Finally, as applicant itself notes, after installation, the orifice is hidden in the fuel line, not visible to anyone admiring the valve itself. It can hardly, therefore, be performing the source identifying function of a trademark. Look and
Placement of the Actuating Means The examining attorney agrees that the “actuating means,” or lever which is used to open and close the valve could be made employing a number of different, yet equally satisfactory designs, although the optimum placement of this handle is somewhat limited. If applicant wishes to submit an amendment to the drawing which shows the body of the valve, as well as the filter and orifice in dotted lines, and applicant provides a statement of record that the matter shown by the dotted lines is not a part of the mark and merely shows the position of the mark on the goods, together with an accurate description of the mark which is limited to the look and placement of the “actuating means,” this will likely be accepted based upon the evidence of acquired distinctiveness already of record. Look and
Placement of the Extension Neck By extension neck, applicant is referring to the fine mesh fuel filter incorporated around the fuel tube that remains inside the tank after installation. The tube is covered with this fine mesh in order to keep scale and grit from inside the fuel tank from entering and perhaps damaging the fuel valve and the fuel system. In its appeal brief, applicant refers to this feature as “a sleek mesh sleeve with a flattened hat shaped extremity.” The evidence shows that all fuel valves employ this type of fine mesh filter around the fuel tube, and all appear to be equally sleek. The flattened hat is another way of saying that rather than being flattened perpendicular to the sides, the end is crimped, which would likely be a less expensive method of manufacture giving the applicant a slight competitive advantage in this regard. Although applicant is correct in stating that an additional fuel filter may be added at any point in the fuel system, it would be less satisfactory to do so since a filter further down the fuel line will not keep scale and grit out of the valve itself. Again, as with the orifice, this tube is not visible during use and performs no source identifying function while hidden in the tank. It is a particular height so as to create a reserve of fuel in the tank. Thus, the tank it is inserted into dictates its height. There is nothing the least bit distinctive about this tube, other than it is lacking the plastic stiffening cage of the stock tube. While applicant’s valve is clearly a very well made and finely machined product, which any motorcycle owner would be proud to install on his or her fuel tank, analyzed factually and in light of public policy the claimed aspects of the valve must be considered functional as a matter of law. Accordingly the design as shown in the drawing is determined to be unregisterable as a trademark. THE EVIDENCE OF ACQUIRED DISTINCTIVENESS CURRENTLY OF RECORD IS
INSUFFICIENT TO SHOW THAT THE CONFIGURATION HAS IN FACT ACQUIRED
DISTINCTIVENESS AS SOURCE IDENTIFIER A finding that a
configuration is functional as a matter of law obviates inquiry as to the
sufficiency of the evidence of distinctiveness. However, assuming arguendo
that the configuration is not de jure
functional, the evidence submitted in support of the acquired distinctiveness
of the configuration is not considered sufficient. SECTION 2(F) There is no general rule as to the amount of evidence of distinctiveness necessary to achieve secondary meaning in a mark. However, as a rule of thumb, the less distinctive the mark, the greater the quality and quantity of evidence of acquired secondary meaning needed to prove distinctiveness. In re Meyer & Wenthe, Inc. 122 USPQ 372 (CCPA 1959). As discussed in the preceding section, the proposed mark is remarkably non-distinctive. Thus, a great quantity of high-quality evidence of acquired secondary meaning will be required to overcome the refusal of record. Applicant has provided a great deal of evidence purporting to show that the proposed mark has acquired distinctiveness. The problem with the evidence is not with its quantity, but rather with the quality of the evidence of record. The kind and amount of evidence necessary to establish that a mark has acquired distinctiveness in relation to goods or services necessarily depends on the nature of the mark an the circumstances surrounding the use of the mark in each case. Roux Laboratories, Inc. v. Clairol Inc., 166 USPQ 34 (CCPA 1970); In re Hehr Mfg. Co., 126 USPQ 381 (CCPA 1960); In re Capital Formation Counselors, 219 USPQ 916 (TTAB 1983). Thus, what may be appropriate evidence to show that a mark has become distinctive in the minds of the relevant purchasing public will necessarily vary depending upon the nature of the mark. A surname or geographic term used in the manner of a mark may acquire distinctiveness quite readily; the statutory five years use will likely be enough. For matter which does not inherently function as a mark because of its nature, as is the case here, evidence of five years’ use is not sufficient to show acquired distinctiveness. In such a case, actual evidence that the configuration is perceived as a mark for the relevant goods or services would be required to establish distinctiveness. That is, the applicant must show that the relevant consumers have been educated to view the otherwise non-distinctive matter as a mark. See generally, In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417 (Fed. Cir. 1985) (color pink as uniformly applied to applicant's fibrous glass residential insulation); In re R.M. Smith, Inc., 734 F.2d 1482, 222 USPQ 1 (Fed. Cir. 1984) (configuration of pistol grip water nozzle for water nozzles); Edward Weck Inc. v. IM Inc., 17 USPQ2d 1142 (TTAB 1990) (color green for medical instruments); In re Cabot Corp., 15 USPQ2d 1224 (TTAB 1990) (configuration of a pillow-pack container for ear plugs and configuration of a pillow-pack container with trade dress (white circle surrounded by blue border) for ear plugs); In re Star Pharmaceuticals, Inc., 225 USPQ 209 (TTAB 1985) (color combination of drug capsule and seeds therein for methyltestosterone); In re Craigmyle, 224 USPQ 791 (TTAB 1984) (configuration of halter square for horse halters). The caveat is that this use must be use as a mark. 15 U.S.C. §1052(f). See: In re Craigmyle, id., (registrability under §2(f) not established by sales over a long period of time where there was no evidence that the subject matter had been used as a mark); In re Kwik Lok Corp., 217 USPQ 1245, 1248 (TTAB 1983) (declarations as to sales volume and advertising expenditures held insufficient to establish acquired distinctiveness. "The significant missing element in appellant's case is evidence persuasive of the fact that the subject matter has been used as a mark."). This requirement that the matter be used as a mark in order to claim acquired distinctiveness only makes sense, in that without some understanding that something otherwise non-distinctive is supposed to be performing the source identifying function of a trademark, there is no reason that anyone would ever attribute trademark significance to this non-distinctive matter, no matter how long it has been in use and no matter how often this matter is seen. Applicant’s Evidence Applicant argues that its valve has acquired distinctiveness by virtue of use over a substantial period of time (16 years) and by extensive advertising and sales during that time. However, none of the evidence of use, or the examples of the extensive advertising show the valve used as a mark. In every instance the valve is merely shown. There is nothing to indicate that this silent testimony has somehow educated consumers to view the configuration as a trademark, rather than merely a picture of the goods. Further, many of the advertisements do not even show the whole valve; many of the “elements” for which applicant claims trademark significance are missing from some of the advertising material. In any case, all of the examples of advertising material submitted as evidence are merely pictures of applicant’s product. None show the configuration used in the manner of a mark. As indicated above, such use must be use in the nature of a mark, before anyone will understand that what they are exposed to is supposed to be a trademark. People do not ascribe trademark significance to everything they are exposed. A person may be exposed to something thousands of times in a lifetime and never ascribe to that thing any trademark significance at all. A thing must be used in the manner of a mark before a person will understand that it is supposed to be a mark. Applicant argues that “external ornamentation” of a product configuration is considered “arbitrary” and “distinctive” as a matter of law. This is a misreading of the law. All of the cases cited for this proposition say precisely the opposite. Lesportsac, Inc. v. K Mart Corp., 225 USPQ 654 (2nd Cir. 1985), for example, has an entire section discussing the secondary meaning of the bags at issue. Lesportsac, id. at 659. “One who seeks to register...a product...configuration as a trademark must demonstrate that its design is ‘nonfunctional’...and that the design functions as an indication of source, whether inherently so, because of its distinctive nature (cites) or through the acquisition of secondary meaning. In re Morton Norwch Products, Inc. 213 USPQ 9 (CCPA 1982) at 17 (emphasis added). “We cannot find in the basic objectives of trademark law any obvious theoretical objection to the use of color alone as a trademark, where the color has attained ‘secondary meaning...” Qualitex Co. v. Jacobson Products Co., Inc., 34 USPQ2d 1161 (Sup. Ct. 1995) at 1163, (emphasis added). It is quite clear from all of this that applicant’s statement that “...when a product configuration, such as applicant’s, comprises external ornamentation, this shape or other ornamentation is considered ‘arbitrary’ and ‘distinctive’ as a matter of law...” is simply wrong. Finally, applicant’s arguments in its appeal brief with respect to the evidence of distinctiveness focuses on arguments not made in the Final Refusal. Applicant has submitted in it’s July 10, 1995 response, several form letters, which it characterizes as “correspondence from a broad sampling of consumers.” Actually, each and every letter is written using identical language, and the letters are all from dealers, not consumers, of applicant’s goods. The problem with this evidence is that it is all from dealers, not necessarily that it is all in identical language.[5] “It is well settled that the assertions of retailers, who know full well from whom they are buying, that they themselves recognize a particular designation as a trademark...cannot serve to establish that members of the purchasing public, who come to the marketplace without such specialized knowledge, would in fact recognize the designation as an indication of origin.” In re Semel, 189 USPQ 285, 288 (TTAB 1975). The dealer form letters do not in any way indicate that the relevant consumer, or end purchaser, ascribes any trademark significance at all to the configuration itself. Thus, even assuming arguendo that the configuration was for some reason registerable, applicant has failed to show that the configuration has acquired distinctiveness in the eyes and mind of the relevant purchasing public. Conclusion Analyzed factually and in light of public policy, the valve configuration must be considered to be functional as a matter of law and therefore, unregisterable notwithstanding evidence of acquired distinctiveness, since the features which it claims as a mark would impart a competitive advantage to any fuel valve manufacturer who owns a monopoly right via the Trademark Laws to those features. Accordingly, the refusal of record based upon Registration was refused by the previous examining attorney on the grounds that the mark as shown in drawing is de jure functional and, as such is unregisterable under 15 U.S.C. Sections 1051, 1052, and 1127; Trademark Act Sections 1, 2, and 45 should be affirmed. Respectfully submitted,
Ronald R. Sussman Senior Trademark Attorney (703) 308-9108 ext. 175 Law Office 108 David Shallant Managing Attorney [1] The “Pingle” trademark appears on the drawing of the configuration only in a broken or dotted lines, thus, it is not a part of the applied for mark. [2] Although these articles were put into the record in an effort to show the acquired distinctiveness of the configuration, they are being used here to evidence the functionality of the configuration. [3] “Petcock” being another name for the fuel valve. [4] The chrome plated surface has not been claimed as a part of the mark. [5] However, see: In re Mogen David Wine Corp., 372 F.2d 539, 152 USPQ 593 (CCPA 1967) where the Court was not impressed with the consumer affidavits all of similar language. “In substance, they amounted to hardly more than a carte blanche approval of that which had been formulated by a party naturally and understandably desirous of serving its own interest.” Mogen David, id. |