Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
`PTO Form 1960 (Rev 10/2011)
`
`OMB No. 0651-0050 (Exp 07/31/2017)
`
`Request for Reconsideration after Final Action
`
`Input Field
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`SERIAL NUMBER
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`LAW OFFICE ASSIGNED
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`MARK SECTION
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`MARK
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`LITERAL ELEMENT
`
`STANDARD CHARACTERS
`
`USPTO-GENERATED IMAGE
`
`MARK STATEMENT
`
`ARGUMENT(S)
`
`The table below presents the data as entered.
`
`Entered
`
`86858003
`
`LAW OFFICE 112
`
`https://tmng-al.uspto.gov/resting2/api/img/86858003/large
`
`COOKINPELLETS.COM
`
`YES
`
`YES
`
`The mark consists of standard characters, without claim to any particular font style,
`size or color.
`
`In the Final Office Action dated August 19, 2016, the Examining Attorney has again refused registration of COOKINPELLETS.COM in
`relation to class 4 based upon its purported genericness and descriptiveness; and in relation to class 9 based upon its purported descriptiveness. 
`
`I.  FINAL ACTION PREMATURE
`
`The Examining Attorney has made his Action of August 19, 2016 “final.”   However, the finality of the Action is improper where the
`Examining Attorney has entirely failed to address evidence submitted by the Applicant in support of acquired distinctiveness. 
`
`On two separate occasions within his Final Action, the Examining Attorney has recited as follows: 
`
`To support the claim of acquired distinctiveness, applicant may respond by submitting additional evidence. In re Half Price Books, Records,
`Magazines, Inc., 225 USPQ 219, 220 n.2 (TTAB 1984); TMEP §1212.02(g). Such evidence may include specific dollar sales under the mark,
`advertising figures, samples of advertising, consumer or dealer statements of recognition of the mark as a source identifier, affidavits, and any
`other evidence that establishes the distinctiveness of the mark as an indicator of source. See 37 C.F.R. §2.41(a)(3); In re Ideal Indus., Inc., 508
`F.2d 1336, 1339-40, 184 USPQ 487, 489-90 (C.C.P.A. 1975); In re Instant Transactions Corp. of Am., 201 USPQ 957, 958-59 (TTAB 1979);
`TMEP §§1212.06 et seq.     
`
`(Final Action: p. 3 para. 9 and p. 5 para. 11).
`
`In Applicant’s Response filed on July 14, 2016, Applicant indeed provided evidence of specific dollar sales under the mark by reciting that
`“Applicant has sold over 250,000 units of the Product under the COOKINPELLETS.COM mark from at least about 09/01/2007 to the date of
`this Declaration, resulting in about $3,000,000.00 sales for this duration.”   (See Exhibit I to Response Dated July 14, 2016: p. 1, para. 7). 
`Applicant also provided evidence of advertising figures under the mark by reciting that “Applicant has spent over $25,000.00 in advertising
`and promoting the Product sold under the COOKINPELLETS.COM mark from at least about 09/01/2007 to the date of this Declaration.”  
`(See Exhibit I to Response Dated July 14, 2016: p. 2, para. 8).
`
`However, nowhere in the Final Action is the foregoing evidence addressed or considered.  Although the Final Action acknowledges that the
`Applicant submitted “a declaration by the owner of the LLC,” the Examining Attorney nonetheless fails to consider its contents relating to
`the aforementioned sales and advertising figures.  (Final Action: p. 4 para. 10).
`
`When the applicant submits arguments attempting to overcome a refusal or requirement, the Examining Attorney must respond to the
`
`

`

`applicant’s arguments.   MPEP 713.03; See In re Tires, Tires, Tires, Inc., 94 USPQ2d 1153, 1157 (TTAB 2009)(the Examining Attorney must
`consider all the evidence of record including the evidence applicant has submitted in support of its claim of acquired distinctiveness).  Because
`the Final Action is premature, the Examining Attorney should issue a new non-final action with a six-month response clause.  See MPEP
`714.06.   
`
`II.  GENERICNESS - CLASS 4
`
`When a proposed mark is refused registration due to its purported genericness, the Examining Attorney has the burden of proving such
`genericness by “clear evidence.”   E.g., In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 4 USPQ2d 1141, 1143 (Fed. Cir. 1987).  The clear
`evidence must show that the relevant public uses or understands the proposed mark as naming the genus of goods or services for which
`registration is sought.   See In re Reed Elsevier Props. Inc., 82 USPQ2d 1378, 1380 (Fed. Cir. 2007).  This clear evidence must also relate to
`the specific goods or services set forth in the application.  See In re Failure Analysis Assocs., 1 USPQ2d 1144, 1146 (TTAB 1986).  Any
`doubt on the issue of genericness is to be resolved in favor of the applicant.  E.g., In re DNI Holdings Ltd., 77 USPQ2d 1435, 1347 (citation
`omitted).
`
`A two-step process is utilized to make this determination: (1) what is the genus of goods or services at issue; and (2) does the relevant public
`understand the proposed mark to refer to that genus of goods or services?  E.g., H. Marvin Ginn Corp. v. International Ass’n of Fire Chiefs,
`Inc., 228 USPQ 528, 531-32 (Fed. Cir. 1986).  In applying the foregoing determination, any doubt regarding genericness is resolved in favor
`of the applicant.  E.g., Country Music Association, Inc., 100 USQP2d 1824, 1827 (TTAB 2011)(citation omitted).  Applicant respectfully
`submits that the Examining Attorney has failed to prove prima facie genericness where he has not provided the requisite clear evidence to
`support his determination.
`
`A proper genericness inquiry focuses on the description of goods or services set forth in the underlying trademark application.  Magic Wand,
`Inc. v. RDB, Inc., 19 USPQ2d 1551, 1552 (Fed. Cir. 1991).  Thus, the Examining Attorney must determine the commercial impression of a
`mark in the context of the goods or services associated with that mark.  In re Oppedahl & Larson LLP, 71 USPQ2d 1370, 1374 (Fed. Cir.
`2004).  Applicant’s goods recitation is as follows: “processed wood fuel in the nature of pellets for use in barbecue grills.”
`
`Applicant’s mark, COOKINPELLETS.COM, is a compound word because the terms “cookin,” “pellets” and “.com” are joined, and appear
`without any space or separation between them.  see In re Eddie Z's Blinds & Drapery, Inc., 74 USPQ2d 1037 (TTAB 2005); (compound term
`formed by joining “blinds and drapery” and “.com”); In re CyberFinancial.Net, Inc., 65 USPQ2d 1789, 1794 (TTAB 2002)(“the terms
`‘bond’ and ‘.com’ are joined as a compound word and appear without any space or separation between them.”).
`    When a term consists of a
`compound word, the Examining attorney may establish that the term is generic by producing evidence that each of the constituent words is
`itself generic, and that the separate words retain their generic significance when joined to form the compound word that has "a meaning
`identical to the meaning common usage would ascribe to those words as a compound."  TMEP 1209.01(c)(i)(citations omitted).    The
`Examining Attorney must determine the commercial impression of the mark in the proper context of the goods or services associated with that
`mark.  In re Oppedahl & Larsen, 71 USPQ2d at 1374.  However, the Examining Attorney has failed to do this where he has improperly
`ignored the significance of the “.com” portion of the mark in relation to Applicant’s recited goods.
`
`The Examining Attorney has stated that “[t]he non-source-identifying generic top-level domain (gTLD) ‘.com’ merely indicates an Internet
`address for use by commercial, for-profit organizations ,” citing In re 1800Mattress.com, In re Hotels.com and In re Oppedahl & Larsen LLP
`for the proposition that adding the term “.com” to the wording COOKINPELLETS will not make the mark distinctive.   Applicant does not
`dispute that “[the term] ’.com’ merely indicates an Internet address.”   However, each case cited by the Examining Attorney is readily
`distinguishable from the facts of the present application because each applied a “.com” analysis of the respective mark to a good or service
`expressly reciting an online service, computer network or the Internet.  See In re 1800Mattress.com IP LLC, 92 USPQ2d 1682, 1685
`(Fed. Cir. 2009)(“ online retail store services in the field of mattresses, beds and bedding”)(emphasis added); see In re Hotels.com, L.P., 91
`USPQ2d 1532, 1533 (Fed. Cir. 2009)(“providing information for others about temporary lodging; travel agency services, namely, making
`reservations and bookings for temporary lodging for others by means of telephone and a computer network”)(emphasis added); see In re
`Oppedahl & Larsen, 71 USPQ2d at 1371 & 1374 (“computer software for managing a database of records and for tracking the status of the
`records by means of the Internet”)(emphasis added).  
`
`

`

`In contradistinction, Applicant’s recitation of goods does not recite an online service, computer network, or the Internet - it merely recites a
`fuel for use in barbecue grills.  The federal Circuit has held that “[t]he critical issue in genericness cases is whether members of the relevant
`public primarily understand the term sought to be protected to refer to the genus of goods in question.  E.g., In re 1800Mattress.com IP LLP,
`92 USPQ2d at 1684 (emphasis added).  As concisely phrased by the Federal Circuit in In re 1800Mattress.com IP LLP, “. . . the correct in
`inquiry is whether the relevant public would understand, when hearing the term ‘mattress.com,’ that it refers to online mattress stores. “     92
`USPQ2d at 1685.  In following the logic of the federal circuit in In re 1800Mattress.com IP LLP, the correct inquiry here is whether the
`relevant public would understand, when hearing the term “COOKINPELLETS.COM,” that is refers to “processed wood fuel in the nature of
`pellets for use in barbecue grills.”   See Id. 
`
`In support of his genericness argument, the Examining Attorney’s cited evidence includes only the wording “cooking pellets” and is
`completely devoid of the “.com” term.   “However, the law requires that a mark be ‘considered in its entirety.’”   E.g., In re Oppedahl &
`Larsen, 71 USPQ2d at 1372 (citation omitted).  “An inquiry into the public’s understanding of a mark requires consideration of the mark as a
`whole. . . . [e]ven if each of the constituent words in a combination mark is generic, the combination is not generic unless the entire
`formulation does not add any meaning to the mark.”   In re Steelbuilding.com, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005).  Furthermore, the
`Federal Circuit has held that it is erroneous to apply a per se rule that attaching a “.com” at the end of a mark does nothing to add to the
`mark’s distinctiveness:
`
`This court does not read the PTO’s policy to include an absolute prohibition on the possibility that adding a TLD to a . . . term could operate
`to create a distinctive mark.  Instead, the TMEP states that ‘TLDs generally serve no source-indication function, [and] their addition to an
`otherwise unregistrable mark typically cannot render it registrable.’   This language certainly leaves open the possibility that in unique
`circumstances a TLD could perform a source indicating function.  The PTO has not applied a bright-line rule that the addition of a TLD to an
`otherwise descriptive term will never under any circumstances affect the registrability of a mark. . . [s]uch a rule would be legal error.
`
`In re Oppedahl & Larson LLP, 71 USPQ2d 1372 (Fed. Cir. 2004).   
`
`The Examining Attorney, in noting the foregoing Oppedahl decision as allowing gTLDs to add source-indicating significance only in unique
`circumstances, asserts that applicant’s mark fails to meet this threshold as not presenting the exceptional circumstances set forth in the
`“tennis.net” hypothetical.   Respectfully, the Examining Attorney is mistaken in his interpretation of that hypothetical as applied to the present
`facts.  In the tennis.net hypothetical, the underlying facts made clear that trademark owner sought to register the mark in association with retail
`tennis net sales services (i.e., “a store that sells tennis nets”) while having “no business on the Internet.”   It thus appears from the
`hypothetical that the court, in noting that “TLDs immediately suggest a relationship to the Internet,” required applicant’s recited services to
`have no online presence to ensure that the “.net” term was not of generic or descriptive significance in relation to the applicant’s recited
`services (tennis net sales).  Similar to the facts of the Court’s hypothetical, applicant’s “.com” term of applicant’s mark is not of generic or
`descriptive significance in relation to the applicant’s product where the goods have nothing to do with the Internet.  
`
`This same theme is present in all precedential cases where the court has held a TLD to be of no source identifying significance, namely, the
`theme of a TLD term of the mark having no source identifying significance because the services underlying the mark involved the Internet or
`were online-related.  See In re Meridian Rack & Pinion, 114 USPQ2d 1462, 1466 (TTAB 2015)(“.com” is widely understood and used to
`refer to a form of electronic commerce that allows consumers to purchase goods and services online and is thus generic for “on-line retail store
`services featuring auto parts”); In re 1800Mattress.com IP, LLC, 92 USPQ2d at 1658 (“.com” refers to an abbreviation designating a
`commercial organization in Internet addresses and is thus generic for “ online retail store services in the field of mattresses, beds and
`bedding”)(emphasis added); see In re Hotels.com, L.P., 91 USPQ2d at 1533 (“.com” defined as an abbreviation for a commercial
`organization in Internet addressed and is thus generic for “providing information for others about temporary lodging; travel agency services,
`namely, making reservations and bookings for temporary lodging for others by means of telephone and a computer network”)(emphasis
`added); see In re Oppedahl & Larson LLP, 71 USPQ2d at 1371 &1374 (“.com” conveys to consumers the impression of a company or
`commercial entity on the Internet and is thus descriptive of “computer software for managing a database of records and for tracking the status
`of the records by means of the Internet”);   see In re CyberFinancial.Net, Inc., 65 USPQ2d at 1789 & 1792 (“.com” signifies to the public that
`the user of the domain name [on the Internet] constitutes a commercial entity and is thus generic for “providing information regarding
`financial products and services via a global computer network and providing electronic commerce services via a global computer network. . .
`“); see In re Steelbuilding.com, 75 USPQ2d at 1423-24 (“.com” simply means that services associated with the applied for mark are
`performed in an on-line or e-commerce environment and is thus descriptive of “computerized on-line retail services in the field of pre-
`
`

`

`engineered metal buildings and roofing systems.”); see In re DNI Holdings Ltd., 77 USPQ2d at 1436 & 1441 (“.com” term does not create a
`source identifier   and is thus generic for “provision of casino games through a computer network . . .; provision of contests and sweepstakes on
`and through a global computer network; providing a web site on and through a global computer network featuring information in the field of
`gaming. . . . “);   see In re Martin Container, Inc., 65 USPQ2d 1058, 1059 & 1062 (TTAB 2002)(“.com” indicates a commercial web site on
`the Internet and is thus generic for “rental of metal shipping containers” and “retail store services and retail services offered via telephone
`featuring metal shipping containers” where applicant advertised such services on the Internet); see In re Eddie Z's Blinds & Drapery, Inc., 74
`USPQ2d at 1040 & 1042 (“.com is a TLD by definition and is thus generic for “retail store services featuring blinds, draperies, and other wall
`coverings via a global computer network.”); see In re Reed Elsevier Props. Inc., 82 USPQ2d at 1379 & 1380 (“.com” is generic for
`“providing access to an online interactive database featuring exchange in the field of law, legal news, and legal services.”).   The MPEP
`inherently follows this same theme because it cites only the foregoing cases when addressing the significance of TLDs in relation to
`genericness.  See MPEP 1215.05 (citing In re 1800 Mattress.com IP LLC, In re Hotels.com L.P., In re reed Elsevier, In re DNI Holdings Ltd,
`In re Eddie Z’s Blinds & Drapery, Inc. , In re Cyberfinancial.net and In re Martin Container, Inc.).   
`
`Each of the foregoing cases, as well as the MPEP, thus share a commonality in that the Examining attorney proved that the relevant public
`would understand the mark as a whole, to include a TLD term, to have merely a generic or descriptive significance in relation to the underlying
`recited goods or services, namely, online-related goods or services.  However, applicant’s goods recite no such relationship.   In re
`Rosemount, Inc., 86 USPQ2d 1436, 1439 (TTAB 2008)(“ It is well established that we must look to the meaning of the term within the
`context of the identified goods.”)(citation omitted).   “Thus, the PTO may properly consider . . . the meaning of ‘.com’ with respect to the
`goods identified in the application.”   In re Oppedahl & Larson LLP, 71 USPQ2d at 1372. 
`
`In Oppedahl, the Federal Circuit, when considering the meaning of the “.com” term in relation to the applicant’s goods, concluded that “the
`addition of the of “.com” only strengthen[ed] the descriptiveness of the mark in light of the designation of the goods in the application” where
`the designation expressly included an “Internet feature.” 71 USPQ2d at 1374.  Albeit, applicant does has a web site where it indeed sells
`pellets and provides other information related to the grilling, smoking and barbecuing food products.  However, the existence of this web site
`does not make applicant’s mark de facto generic.   In re Hotels.com, L.P., 91 USPQ2d at 1536 (“Otherwise registrable marks do not acquire
`generic character by participating in electronic commerce  . . .”).   Instead, when COOKINPELLETS.COM is used in association with
`“processed wood fuel in the nature of pellets for use in barbecue grills,” the “.com” term expands the meaning of the mark to suggest
`services in addition to the recited fuel product, namely, those of applicant’s aforementioned website.   See In re Steelbuilding.com, 75
`USPQ2d at 1423 (the TLD indicator expanded the meaning of the mark to include goods and services beyond mere online sales).  Thus,
`applicant’s mark is suggestive to indicate the source of the product, not the product itself, with the “.com” portion of the mark supporting the
`overall mark’s distinctiveness - not its genericness.   Cf., In re Oppedahl & Larson LLP, 71 USPQ2d at 1374. 
`
`In view of the foregoing, the Examining Attorney has not proved, with clear evidence, that the public would understand applicant’s mark as a
`whole, including the ”.com” term, to have merely a generic significant in relation to applicant’s recited pellet fuel goods.
`  The Examining
`Attorney has provided no evidence that the relevant consuming public has come to understand the term “cookinpellets.com” as describing a
`pellet fuel product.  See In re Failure Analysis Assocs., 1 USPQ2d 1144 at 1146 (the evidence must relate to the specific goods set forth in the
`application and the specific mark for which registration is sought).    Nor has the Examining Attorney reconciled the facts of the present matter
`with any case cited in support of the purported genericness of applicant’s “.com” term where applicant’s goods have nothing to do with the
`Internet.  Any doubt on the issue of genericness is to be resolved in favor of the applicant.  E.g., In re DNI Holdings Ltd., 77 USPQ2d at 1347
`(citation omitted).  A withdrawal of the class 4 genericness rejection is thus warranted. 
`
`Assuming, arguendo, that the “.com” term of applicant’s mark indeed has no trademark significance, the compound word “cookinpellets” is
`nonetheless not generic.  Applicant submits additional evidence showing that the consuming public has come to understand “cookinpellets”
`in a trademark sense (i.e., as the source of the product - not the product itself).  (See Exhibits A and B).  Exhibit A comprises numerous
`examples of the consuming public using “cookin pellets” to indicate the source of applicant’s goods, not the goods themselves.
`  Exhibit B
`comprises unsolicited positive reviews for applicant’s goods in relation to two separate products sold on Amazon.com, namely, 718 positive
`reviews for applicant’s “Perfect Mix” Cookinpellets.com goods and 334 positive reviews for applicant’s “Hickory” Cookinpellets.com
`goods - a total of 1,052 positive reviews.  These unsolicited, positive reviews indicate that applicant’s cookinpellets.com-branded goods have
`“developed a presence and favorable reputation on the Internet and weigh[ed] in favor of a finding [that the mark is not a generic description
`
`

`

`of the product itself].”   See Blumenthal Distrib. v. Exec. Chair, Inc., No. CV-10-1280 (CBA), 2010 U.S. Dist. LEXIS 142193, at p. 16,
`(E.D.N.Y. Nov. 9, 2010)(attached hereto as App. A).    
`
`The Examining Attorney has provided some evidence purporting to illustrate that “cooking pellets” may be understood by the relevant
`consuming public to describe a pellet fuel used in food preparation (i.e., the product itself).  However, applicant’s foregoing evidence, as well
`as that evidence accompanying applicant’s previous response exceeds that of the Examining Attorney and clearly shows that this same
`consuming public has come to understand “cookinpellets” in a trademark sense (i.e., as the source of the product).   The Examining
`Attorney’s evidence, in view of the plethora provided by applicant, is not sufficient to show by clear evidence that the relevant consuming
`public has come to understand the term “cookinpellets” as a generic term describing applicant’s recited goods.
`  See In re Merrill Lynch,
`Pierce, Fenner, & Smith, Inc., 4 USPQ2d at 1143 (“The mixture of usages unearthed . . . does not show, by clear evidence, that the [relevant
`consuming public] views . . . [the mark] as a generic, common descriptive term . . .”).   Furthermore, any doubt on the issue of genericness is to
`be resolved in favor of the applicant. E.g., In re DNI Holdings Ltd., 77 USPQ2d at 1347 (citation omitted).    A withdrawal of the class 4
`genericness rejection is thus warranted.     
`
`II.  DESCRIPTIVENESS - CLASSES 4 & 9
`
`1.  Class 4
`
`The mark COOKINPELLETS.COM is not descriptive of the product associated with the mark, namely, “processed wood fuel in the nature of
`pellets for use in barbecue grills.”   As with the Examining Attorney’s genericness refusal, the Examining Attorney again improperly
`discounts the “.com” portion of Applicant’s mark - stating that the “top-level domain (gTLD) ‘.com’ merely indicates an Internet address
`for use by commercial, non-profit organizations.”   Again, however:  1) the Federal Circuit has held that it is erroneous to apply a per se rule
`that attaching a “.com” at the end of a mark does nothing to add to the mark’s distinctiveness. E.g., see In re Oppedahl & Larson LLP, 71
`USPQ2d at 1372; 2) the Examining Attorney has not properly supported the descriptiveness rejection where the cited caselaw (i.e., In re
`Oppedahl & Larsen LLP and In re 1800Mattress.com) each involved an application reciting Internet related products and/or services in
`association with the applied-for mark; and 3) the Examining Attorney has provided no evidence to support the rejection where the cited
`evidence includes only the wording “cooking pellets” and is completely devoid of the “.com” term.
`
`  . . . simply means that the services associated with the [descriptive] term are performed in
`The Federal Circuit has held that “adding ‘.com’
`an online or e-commerce environment.”   In re Steelbuilding.com, 75 USPQ2d at 1423.  Because the services associated with the mark in
`Steelbuilding.com involved Internet commerce, the Court held that the mark was descriptive of its services.  Id.  This is not the case here. 
`Applicant reasserts all applicable arguments of the previous section of this response responding to the genericness rejection.  Applicant’s
`recited goods have nothing to do with the Internet.  Thus, COOKINPELLETS.COM is not descriptive of them while properly analyzing the
`mark as a whole (i.e., with the “.com” term).   A withdrawal of the class 4 descriptiveness rejection is warranted.
`
`Assuming, arguendo, that the “.com” portion of Applicant’s mark is to properly be discounted in its entirety, the term “cookinpellets” has
`acquired distinctiveness via an extended use of the mark in commerce.  See TMEP 1212.06(a)(“ Long-term use of the mark in commerce is
`one relevant factor to consider in determining whether a mark has acquired distinctiveness.”)(citations omitted).   During this 8 year term of
`use, customers and dealers of BBQ and grilling pellets have come to associate the term “cookinpellets” as a brand name or indicator of
`source.  (See Exhibits A - G attached to applicant’s previous response )(each comprising consumer statements using ”cookinpellets” as a
`brand or source identifier, and not as a product description).  (See also Exhibit H attached to applicant’s previous response )(comprising a
`dealer statement using “cookinpellets” as a source identifier).
`
`As stated in applicant’s previous response, applicant has sold over 250,000 units of product under the COOKINPELLETS.COM mark
`since at least about 09/01/2007, resulting in about $3,000,000.00 sales, (See Exhibit I attached to applicant’s previous response )(comprising
`an affidavit of the principal of the company owning the mark)  Applicant has spent over $25,000.00 in advertising and promoting the
`product sold under the COOKINPELLETS.COM mark since at least about 09/01/2007, (See Exhibit I attached to applicant’s previous
`response).  The COOKINPELLETS.COM mark has been copied by third parties without Applicant’s permission on at least two separate
`occasions to sell pellets, (See Exhibit I attached to applicant’s previous response).   See In re Tires, Tires, Tires, Inc., 94 USPQ2d at 1157 (in
`determining whether secondary meaning has been acquired, the Board may examine evidence of copying).
`
`

`

`With further regard to applicant’s sales and revenue figures, Applicant has about 74 dealers selling “cookinpellets.com” brand pellets
`in 30 states of the US, (Exhibit C).  Also, Applicant’s product has been rated as the “no. 1 best seller and highest rated pellet on Amazon.com
`for over two years,” (Exhibit D).   Cf., In re Van Valkenburgh, 97 USPQ2d 1757, 1766-67 (TTAB 2011)(the existence of acquired
`distinctiveness may be inferred from “industry leader” statements when supported by evidence of substantial sales).    
`
`In further support of acquired distinctness, applicant has created its own channel within numerous social media websites to market and
`advertise its pellet fuel products.  Each channel displays the “cookinpellets.com” mark for view by users.   These channels have been
`“followed” by tens of thousands of users having an interest in applicant’s recited pellet fuel products of or food preparation services
`utilizing these products: Facebook.com, 27,875 followers (Exhibit E); Twitter.com, 3,301 followers (Exhibit F); Instagram.com, 975
`followers (Exhibit G); Pinterest.com, 20 followers (Exhibit H); YouTube.com, 113 subscribers (Exhibit I); and Twitch.com, 55 followers
`(Exhibit J).  As is apparent from these exhibits, applicant has 32,339 followers across these various social media websites.  These followers
`are thus consumers who are exposed to the mark in connection with applicant’s products to support a finding of acquired distinctiveness.   See
`In re Country Music Association, 100 USPQ2d at 1834-35 (acquired distinctiveness established where applicant introduced evidence that its
`web site promoting its association services had 15 million hits in a single year); see also GamerModz, LLC v. Golubev, No
`8:100CV-1466-T-27TGW, 2011 WL 4755026, at p. 5 & n. 2, (M.D. Fla. Aug. 3, 2011)(200,000 website hits established acquired
`distinctiveness in trademark)(attached hereto as App. B).
`
`The “cookinpellets.com” channel on the YouTube website displays 30 videos largely demonstrating food preparation techniques using
`applicant’s pellet fuel products.   (Exhibit I).  Users of applicant’s YouTube channel have cumulatively viewed applicant’s videos 20,627
`times.  (Exhibit I).  On the cookinpellets.com channel of the Twitch website, applicant publishes a live video about twice per week
`demonstrating food preparation techniques with its pellet fuel products.  (Exhibit J).  These videos are saved to the website for further view by
`the website’s users.   (Exhibit J).  Users of applicant’s Twitch.com channel have cumulatively viewed these videos 695 times. (Exhibit J).  
`Thus, users of applicant’s YouTube and Twitch channels have cumulatively viewed applicant’s videos 20,487 times.
`  As is apparent from the
`foregoing exhibits, consumers are again exposed to the mark in connection with applicant’s products to support a finding of acquired
`distinctiveness.  See In re Country Music Association, 100 USPQ2d at 1834-35 (acquired distinctiveness established where applicant
`introduced evidence that its web site promoting its association services had 15 million hits in a single year); see also GamerModz, LLC v.
`Golubev at p.5 & n. 2, (200,000 website hits established acquired distinctiveness in trademark)(attached hereto as App. B).
`
`Furthermore, Applicant submits additional evidence showing in support of the acquired distinctiveness of the mark.  (See Exhibits A and B). 
`Exhibit A comprises numerous examples of the consuming public using “cookin pellets” to indicate the source of applicant’s goods, not the
`goods themselves.  Exhibit B comprises unsolicited positive reviews for applicant’s goods in relation to two separate products sold on
`Amazon.com, namely, 718 positive reviews for applicant’s “Perfect Mix” Cookinpellets.com goods and 334 positive reviews for applicant’s
`“Hickory” Cookinpellets.com goods - a total of 1,052 positive reviews.   These unsolicited, positive reviews indicate that applicant’s
`cookinpellets.com-branded goods have “developed a presence and favorable reputation on the Internet and weigh[ed] in favor of a finding of
`secondary meaning.”   See Blumenthal Distrib. v. Exec. Chair, Inc. at p. 16, (attached hereto as App. A).  In view of the foregoing evidence, a
`withdrawal of the class 4 descriptiveness rejection is warranted.
`
`In the alternative, if despite the foregoing arguments, the Examining Attorney again refuses registration of the mark under class 4 on the
`Principal Register, applicant seeks registration under class 4 on the Supplemental Register.
`
`2.        
`
`Class 9
`
`Applicant withdraws its section 2(f) claim of acquired distinctiveness in relation to its class 9 goods.  The Examining Attorney has rejected
`Applicant’s COOKINGPELLETS.COM trademark as purportedly descriptive of Applicant’s class 9 products, namely, of “Downloadable
`mobile applications for advertising and selling barbecue grill fuels, barbecue grill accessories and cooking ingredients.”   Applicant has
`amended its class 9 product description to read as follows: “Downloadable mobile applications for advertising and selling barbecue grill fuels,
`barbecue grill accessories and cooking ingredients.”   
`
`In his final rejection, the Examining Attorney has stated that “applicant’s application is an interface in which individuals can order class 4
`
`

`

`goods from the applicant . . . [t]herefore, applicant’s Class 9 mark is considered descriptive of the goods because it is a retail interface for a
`generic term for the goods one can buy through the app.”   As discussed in the foregoing sections, “cookinpellets.com” is not a generic term
`for applicant’s goods where the Examining Attorney has not presented clear evidence of such and has failed to distinguish any cited case
`discounting the “.com” term in view of Internet-related services.   Furthermore, in view of applicant’s amended goods recitation, applicant
`does not sell its goods through the app to constitute “retail services.”   Thus, applicant’s app cannot be considered as descriptive because the
`app can no longer be considered a retail interface.  A withdrawal of the class 9 descriptiveness rejection is warranted.
`
`In the alternative, if despite the foregoing arguments, the Examining Attorney again refuses registration of the mark under class 9 on the
`Principal Register, applicant seeks registration under class 9 on the Supplemental Register.
`
`III.  APPEAL
`
`Applicant has timely filed an Appeal for both classes with the Trademark Trial and Appeals Board should the Examining Attorney maintain
`his refusals.
`
`EVIDENCE SECTION
`
`