THIS OPINION IS NOT A
`PRECEDENT OF THE TTAB
`
`
`
`Oral Hearing Held: January 21, 2020
`
`Mailed: February 5, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`————
`In re Antsy Labs LLC aka Antsy Labs
`_____
`
`Serial No. 87157508
`_____
`
`Daniel P. Mullarkey and Monica M. Gutierrez of Polsinelli PC,
`for Antsy Labs LLC aka Antsy Labs.
`Lourdes Ayala, Trademark Examining Attorney, Law Office 106,
`Mary Sparrow, Managing Attorney.
`_____
`
`
`Before Shaw, Pologeorgis, and Dunn,
`Administrative Trademark Judges.
`
`
`Opinion by Pologeorgis, Administrative Trademark Judge:
`Antsy Labs LLC aka Antsy Labs (“Applicant”) seeks registration on the
`
`Supplemental Register of the designation FIDGET CUBE (in standard characters;
`
`CUBE disclaimed) for “stress relief exercise toys” in International Class 28.1
`
`The Trademark Examining Attorney refused registration on the Supplemental
`
`
`1 Application Serial No. 87157508, filed on August 31, 2016. The application was originally
`filed seeking registration on the Principal Register based on an allegation of use in commerce
`under Section 1(a) of the Trademark Act, 15 U.S.C. 1051(a), claiming August 15, 2016 as the
`date of first use and August 30, 2016 as the date of first use in commerce. On February 26,
`2018, Applicant amended its involved application to seek registration on the Supplemental
`Register.
`
`

`

`Serial No. 87157508
`
`Register under Trademark Act Sections 23(c) and 45, 15 U.S.C. § 1091(c) and 1127,
`
`on the ground that the designation FIDGET CUBE is the generic name of Applicant’s
`
`identified goods and thus incapable of distinguishing Applicant’s goods.
`
`When the refusal was made final, Applicant appealed and requested
`
`reconsideration. After
`
`the Examining Attorney denied
`
`the request
`
`for
`
`reconsideration, the appeal resumed. The appeal is fully briefed. An oral hearing was
`
`held on January 21, 2020. We affirm the refusal to register.2
`
`I.
`
`Genericness - Applicable Law
`
`A mark proposed for registration on the Supplemental Register must be capable
`
`of distinguishing the applicant’s goods or services. 15 U.S.C. § 1091. “Generic terms
`
`do not so qualify.” In re Emergency Alert Sols. Grp., LLC, 122 USPQ2d 1088, 1089
`
`(TTAB 2017); see also Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128
`
`USPQ2d 1370, 1372 n.3 (Fed. Cir. 2018) (citing In re Am. Fertility Soc’y, 188 F.3d
`
`1341, 51 USPQ2d 1832, 1833 (Fed. Cir. 1999)); In re Dial-A-Mattress Operating Corp.,
`
`240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2001) (generic terms “are by
`
`definition incapable of indicating a particular source of the goods or services”).
`
`The Office must demonstrate a term is generic by “clear evidence” of generic use.
`
`See In re Hotels.com LP, 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009).
`
`“[R]egistration is properly refused if the word is the generic name of any of the goods
`
`or services for which registration is sought.” In re Cordua Rests., Inc., 823 F.3d 594,
`
`
`2 All TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations reference
`the docket and electronic file database for the involved application. All citations to the TSDR
`database are to the downloadable .PDF version of the documents.
`
`-2-
`
`

`

`Serial No. 87157508
`
`118 USPQ2d 1632, 1638 (Fed. Cir. 2016) (quoting 2 J. Thomas McCarthy, MCCARTHY
`
`ON TRADEMARKS AND UNFAIR COMPETITION § 12:57 (4th ed. 2016)).
`
`A generic term “is the common descriptive name of a class of goods or services.”
`
`Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827,
`
`1830 (Fed. Cir. 2015) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc.,
`
`782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986)). There is a two-part test used to
`
`determine whether a designation is generic: (1) what is the genus (class or category)
`
`of goods or services at issue?; and (2) does the relevant public understand the
`
`designation primarily to refer to that genus of goods or services? Princeton Vanguard,
`
`114 USPQ2d at 1803 (citing Marvin Ginn, 228 USPQ at 530); Couch/Braunsdorf
`
`Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1462 (TTAB 2014). “The
`
`critical issue in genericness cases is whether members of the relevant public
`
`primarily use or understand the term sought to be protected to refer to the genus of
`
`goods or services in question.” Marvin Ginn, 228 USPQ at 530.
`
`Any term that the relevant public uses or understands to refer to the genus of
`
`goods, or a key aspect or subcategory of the genus, is generic. Royal Crown Co., Inc.
`
`v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1046-47 (Fed. Cir. 2018). “[A]
`
`term is generic if the relevant public understands the term to refer to part of the
`
`claimed genus of goods or services, even if the public does not understand the term to
`
`refer to the broad genus as a whole.” Cordua, 118 USPQ2d at 1638 (holding
`
`CHURRASCOS, a word that is generic for a type of grilled meat, to be generic for
`
`restaurant services because it referred to a key aspect of those services); see also In
`
`-3-
`
`

`

`Serial No. 87157508
`
`re Nordic Naturals, Inc., 755 F.3d 1340, 111 USPQ2d 1495 (Fed. Cir. 2014)
`
`(CHILDREN’S DHA generic for DHA supplements for children); In re Northland
`
`Aluminum Prods., Inc., 777 F.2d 1556, 227 USPQ 961 (Fed. Cir. 1985) (BUNDT
`
`generic for ring cake mixes, i.e., the subcategory “bundt cakes.”).
`
`“Evidence of the public’s understanding of the term may be obtained from any
`
`competent source, such as purchaser testimony, consumer surveys, listings in
`
`dictionaries, trade journals, newspapers and other publications.” Royal Crown, 127
`
`USPQ2d at 1046 (quoting In re Merrill Lynch, Pierce, Fenner, and Smith Inc., 828
`
`F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987)); see also Cordua, 118 USPQ2d at
`
`1634; Princeton Vanguard, 114 USPQ2d at 1830; In re Reed Elsevier Props. Inc., 482
`
`F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007) (finding third-party websites
`
`competent sources for determining what the relevant public understands mark to
`
`mean).
`
`
`
`A. What is the Genus of the Goods at Issue?
`
`Our first task is to determine the proper genus. In defining the genus, we
`
`commonly look to the identification of goods or services in the application. See Reed
`
`Elsevier, 82 USPQ2d at 1380; Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d
`
`1551, 1552 (Fed. Cir. 1991) (a proper genericness inquiry focuses on the identification
`
`set forth in the application or certificate of registration); In re Serial Podcast, LLC,
`
`126 USPQ2d 1061, 1063 (TTAB 2018) (proper genus generally is “set forth by the
`
`recitation of services in each subject application.”). Accordingly, we find that the
`
`genus of goods at issue in this case is adequately defined by Applicant’s identification
`
`-4-
`
`

`

`Serial No. 87157508
`
`of goods, namely, “stress relief exercise toys.” Applicant does not dispute that this is
`
`how the genus is defined, but itself refers to the genus as “stress relief toy or fidget
`
`toy.”3
`
`B. Who are the Relevant Purchasers?
`
`The second part of the test is whether the term sought to be registered is
`
`understood by the relevant public primarily to refer to that genus of goods or services.
`
`“The relevant public for a genericness determination is the purchasing or consuming
`
`public for the identified goods.” Frito-Lay N. Am., Inc. v. Princeton Vanguard LLC,
`
`124 USPQ2d 1184, 1187 (TTAB 2017) (citing Magic Wand, 19 USPQ2d at 1552);
`
`Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341, 1351 (TTAB 2013).
`
`Because there are no restrictions or limitations to the channels of trade or classes of
`
`consumers for Applicant’s identified goods, the relevant consuming public consists of
`
`the public at large, namely, ordinary consumers who purchase stress relief exercise
`
`toys.
`
`C. How does the Relevant Public Perceive the Designation FIDGET
`CUBE?
`
`
`The Examining Attorney argues that the designation FIDGET CUBE refers to a
`
`specific type or subcategory of a stress relief exercise toy.4 In support of her argument,
`
`the Examining Attorney submitted the following evidence showing use of the
`
`
`3 Applicant’s Brief, 12 TTABVUE 9.
`4 Examining Attorney’s Brief, p. 7, 14 TTABVUE 8.
`
`-5-
`
`

`

`Serial No. 87157508
`
`designation FIDGET CUBE in connection with Applicant’s identified goods. The
`
`evidence is summarized below:
`
`1. Dictionary Definitions
`
`The constituent elements of Applicant’s applied-for mark are defined as follows:5
`
`“Fidget” is defined as:
`
`“uneasiness or restlessness as shown by nervous movements;”
`
`“to make a lot of small movements because you are nervous, bored, etc.”
`
`“to cause to move or act nervously.”
`
`“Cube” is defined as:
`
`“the regular solid of six equal square sides.”
`
`2. Plain Copies of Third-Party Registrations6
`
`i.
`
`Registration No. 4249782, registered November 27, 2012 on the
`Principal Register for the standard character mark PARKE’S
`FIDGET FELLOW (FIDGET disclaimed) for “plush toys for use in
`mental and physical therapy.” The underlying application of this
`third-party registration was filed on April 4, 2012, claiming April 1,
`2009 as both the date of first use and first use in commerce.
`
`
`
`5 December 12, 2016 Office Action, TSDR pp. 11-15 and 19-20 (www.merriam-webster.com).
`6 Id., TSDR pp. 6-10.
`Additionally, Applicant submitted status and title copies of three pending applications and
`six live registrations where the designation “fidget cube(s)” is employed as the name of the
`goods set forth in the identification of goods in each application and registration. Applicant
`also submitted two lists of third-party pending applications and live registrations for marks
`that include the term FIDGET. These lists do not serve to introduce the applications and
`registrations into evidence and thus have minimal probative value. See In re Peace Love
`World Live, LLC, 127 USPQ2d 1400, 1405 n.17 (TTAB 2018) (“[T]he list does not include
`enough information to be probative. The list includes only the serial number, registration
`number, mark, and status (live or dead) of the applications or registrations. Because the
`goods are not listed, we do not know whether the listed [applications or] registrations are
`relevant.”).
`
`-6-
`
`

`

`Serial No. 87157508
`
`ii.
`
`Registration No. 4626442, registered March 20, 2014 on the
`Supplemental Register for the standard character mark THE
`ULTIMATE FIDGET
`(FIDGET disclaimed)
`for “Therapeutic
`stimulation device, namely, hand-held multi-movement apparatus
`designed to provide sensory feedback for children when touched for
`the purpose of providing additional sensory input to maintain
`attention and lessen distraction.” The underlying application of this
`third-party registration was filed on June 7, 2013, claiming May 12,
`2012 as both the date of first use and first use in commerce.
`
`
`3. Online Product Reviews7
`
`• Do you have to keep your hands busy to think straight? Fidget Cube is
`a little device that lets you click, flip, roll and slide its different buttons
`so you can stay calm. You can nab one for $19 on Kickstarter, and it’s
`supposed to ship in December, though every crowdfunded project seems
`to get delayed.
`
`For some, that requires mediation and the ensuring sense of zen. For
`the others, it’s background music. But I think best while stroking my
`beard or twiddling a trinket. Fidget Cube could fill the void no matter
`what sensation I’m seeing. (www.techcrunch.com/2016/09/08/fidget-
`cube).
`
`
`7 December 12, 2016 Office Action, TSDR pp. 27-31; September 2, 2017 Office Action, TSDR
`p. 21, November 4, 2018 Final Office Action, TSDR pp. 4-49, 58-70, and June 1, 2019 Denial
`of Request for Reconsideration, 6 TTABVUE 8-10, 7 TTABVUE 2-8, 8 TTABVUE 7-10, 9
`TTABVUE 2-10 and 10 TTABVUE 2-10.
`In her November 4, 2018 Final Office Action, the Examining Attorney provided a URL
`address and an abstract of the purported contents of the websites www.pickedreviews.com,
`www.guidr.com, and www.geek.com solely in the body of the office action without attaching
`a screenshot of the actual websites as exhibits to the office action. TMEP Section 710.01(b)
`provides, inter alia, that when
`[M]aking Internet evidence part of the record, the examining
`attorney must both (1) provide complete information as to the
`date the evidence was published or accessed from the Internet,
`and its source (e.g., the complete URL address of the website),
`and (2) download and attach the evidence to the Office action.
`See Safer Inc. v. OMS Invs. Inc., [94 USPQ2d 1031, 1039 (TTAB
`2010)]. If an examining attorney fails to do so, and the applicant
`objects, the material will not be considered. See In re Mueller
`Sports Medicine, Inc., 126 USPQ2d 1584, 1587 (TTAB 2018). If,
`on the other hand, an examining attorney fails to satisfy these
`
`-7-
`
`

`

`Serial No. 87157508
`
`• Fidget Spinner vs. Fidget Cubes - Fidget cubes serve almost the same
`purpose as fidget spinners except they do not spin. They provide the
`fidgeter with various buttons and clicking objects. Fidget cubes are
`good for people who enjoy clicking pens or pressing buttons.
`(www.bestfidgetspinner.com).
`
`• A fidgeter’s dream toy, Fidget Cube is a tiny palm-sized toy that
`includes six separate functions, including a clicker, a switch flip, a
`joystick glider, a circular wheel, a roller click bell and gear rollers, and
`a special side modeled after a traditional worry stone – all strategically
`placed as tools to help you relax and focus on the tasks in front of you.
`Easily one of our favorite picks on the list. Fidget Cube has something
`for everyone. (www.coolmaterial.com/feature/best-fidget-toy-options).
`
`• The stress relief fidget cube is a non-motorized, no battery cube with
`six sides, like a die. The user can enjoy manipulating each side,
`including rolling a ball, spinning a wheel, flipping a switch, pressing
`buttons, and rubbing a circle. The tactile feel is designed to provide
`relaxation for people with ADHD or any other disorder which decreases
`attention or increases anxiety. There is enough functionality in these
`little cubes to spark some interest in the mechanical makeup of the cube.
`They are small and discreet. Depending on the fidget cube you get,
`there may
`be minimal
`noise
`from
`the
`clicking.”
`(www.spacerails.net/best-fidget-tools-keep-child-maybe-focused).
`
`
`
`
`
`
`requirements, but the applicant fails to object, the Board may
`consider the website for whatever probative value it may have.
`See id. at 1586.
`Because the Examining Attorney did not attach screenshots of the three websites as exhibits
`to her final office action and since Applicant did not object on such grounds, we have given
`these three websites whatever probative value they have.
`
`-8-
`
`

`

`Serial No. 87157508
`
`• Fidget spinners are massively popular for scatterbrained thinkers in
`schools and workplaces. This has led them to be labeled as a distraction,
`which is ironic considering they are typically used to promote focus.
`Instead of bringing a noisy fidget spinner to your next lecture or work
`meeting, consider a fidget cube or die instead. These polygonal toys
`offer a different sensory stimulant on each side. You’ll find buttons to
`press, switches to flick, wheels to crank, joysticks to twiddle, and more.
`Some users report that giving their restless hands something to play
`with helps relieve symptoms of ADHD, anxiety, depression, and autism.
`Others claim that fidget dice are instead just cheap trinkets. Either way,
`those people have one thing right, because they are quite inexpensive. If
`you’ve got excess energy to burn, consider giving one of our favorite
`fidget cubes a try. (www.heavy.com/social/2017/05/top-best-fidget-
`cube-dice-sensory-toy-for-adhd-anxiety-autism)
`
`• There are a wide variety of fidget cubes available now, which all
`feature cubes that fit in your hand that have several different activities
`and add-ons to help sustain a quiet moment. Some are mainly puzzle
`cubes, where you can move around different sections to make different
`shapes. Others have a variety of switches, buttons, and joysticks to click
`and move. Some fidget cubes actually have more sides than a cube to
`fit more fidget buttons and switches. Less expensive fidget cubes tend
`to be made of plastic while more expensive ones often feature metal.
`Most also produce minimal, if any, noise. (www.bestreviews.com/-best-
`fidget-cubes).
`
`• If you’ve ever been caught chewing on your nails, rigorously clicking a
`pen, or flicking your foot in dire stress, you are not alone! No matter how
`embarrassing or uncontrollable the situation is, ‘fidgeting’ is actually
`quite healthy for stress relief. Usually, the common fidgeting habits may
`be seen as annoying or irritating to fellow colleagues and friends. The
`good news is that the latest additions to these fidgeting toys are seen as
`simple ‘cool’ devices that have literally taken the world by storm!
`Initially designed to help increase the focus and attention span, and also
`for those with ADD, ADHD, autism and OCD related issues, these cubes
`and spinners are now one of the most popular toys on the markets. Every
`kid has them or wants them more than anything! So, what are these
`fidgeting cubes? Let’s have a look at the top nine best fidget cubes
`and the guide that follows with all you need to know about this latest
`frenzy! (www.www.productexpert.com/best-fidget-cube-on-amazon).
`
`
`-9-
`
`

`

`Serial No. 87157508
`
`• Fidget cubes and spinners are ultra-popular now, and cost anywhere
`from a dollar to twenty. Fidget cubes . . . are covered in buttons, knobs
`and switches. Fidget spinners . . . are flat and spin on ball bearings like
`a gyroscope. But a lot of electronics have fidgety features, and you may
`not even realize it. (www.cnet.com/pictures/the-best-fidgety-gadgets-
`that-arent-fidget-spinners-or-cubes).
`
`• The fidget cube is a handheld toy that aims to relieve stress, help you
`focus and occupy your hands. All sides of the cube have different types
`of buttons. Some are pushed, some are pulled and some are rubbed.
`(www.superiorthan.com/superior/Fidget-Spinner-vs-Fidget-cube-2083).
`
`• If you can’t seem to keep yourself still and need something, anything, to
`occupy your hands, the sudden explosion of fidget toys is just what you
`need. While they make somewhat dubious claims about their
`therapeutic benefits, there’s no denying the satisfaction of spinning a
`tiny toy, or clicking and fussing with switches and buttons, while you’re
`otherwise idle. It just feels right. Below we’ve compiled a list of the best
`fidget spinners and best fidget cubes you can buy right now. And if you
`aren’t interested in dropping $20 or more on a simple fidget toy, we’ve
`also included a few ultra-cheap fidget spinners and cheap fidget cubes
`that will still get the job done (and likely make a little but more noise
`while doing it). (www.sea.ign.com/toys/114989/news/the-best-fidget-
`spinners-and-fidget-cubes).
`
`• Best fidget toys are tools that have been known to improve
`concentration often in people suffering from ADHD, autism or anxiety.
`Two and a half decades ago, these toys were unknown to many people.
`Over the years, their popularity has grown and continues to grow.
`Fidget toys come as spinners, as fidget cubes among other shapes and
`each has a different mode of operation. They can be spun, twisted,
`pressed, rolled, rubbed or switched. It all depends on the type of fidget
`toy that you have. Others are versatile and combine all the above
`operations in one device. Fidget cubes are a good example.
`(www.fidgetsguide.com/best-fidget-toys).
`
`
`-10-
`
`

`

`Serial No. 87157508
`
`4. Online Retailer Advertisements8
`
`i.
`
`www.amazon.com (Representative Sample)
`
`
`
`
`8 March 27, 2018 Office Action, TSDR pp. 5-11, 19-31, and 36-48; November 4, 2018 Final
`Office Action, TSDR pp. 52-58; June 1, 2019 Denial of Request for Reconsideration, 5
`TTABVUE 7-14.
`
`-11-
`
`

`

`Serial No. 87157508
`
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`Serial No. 87157508
`
`ii. www.bestdeals.com
`
`
`
`-14-
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`
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`
`

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`Serial No. 87157508
`
`iii. www.fidgetland.com
`
`
`
`
`
`-15-
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`

`

`Serial No. 87157508
`
`iv. www.asseenontvandbeyond.com
`
`
`
`
`
`-16-
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`

`

`Serial No. 87157508
`
`v.
`
`www.kmart.com
`
`vi. www.fidgettoyworld.com
`
`
`
`
`
`-17-
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`

`

`Serial No. 87157508
`
`vii. www.heavengifts.com
`
`viii. www.therapyshoppe.com
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`Serial No. 87157508
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`5. Online Articles
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`i.
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`www.coolmaterial.com9
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`
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`ii. www.fidgetcircle.com10
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`9 September 2, 2017 Office Action, TSDR p. 22.
`10 March 27, 2018 Office Action, TSDR pp. 12-18.
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`Serial No. 87157508
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`03'261'2018 GE 55 [t4 F'M
`[has 1!f:dgetoic‘e i Din-’fidqdrnubesr
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`Help people thfl ll'lfc‘ll concentration. 10(5le arm SLIESS tellel. {JUICE Llle l'dullCll Ol Uilglll'dl llugel.
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`cube many different variations of the cube have emerged with varying fidget options in differing
`sizes and shapes. The fidget cube also likely influenced the emergence of fidget spinners
`another fidget toy aimed at fidgeters.
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`How the Fidget Cube Craze Started
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`The term fidget cube started to take off with the launch of the Kickstar‘ter campaign by brothers
`Mark and Matthew McLachlan. The brothers were asking for 515000 funding for their fidget
`cubes. but ended up raising a staggering $6.1 million, making it one of the most successful
`Kickstar‘ter campaigns of all time. It wasn’t iong until others caught onto this new phenomenon
`and soon several similar fidget cubes and dice emerged Users looking for fidget cubes can now
`select from a huge offering from 1005 of different online vendors around the world.
`
`Different Types of Fidget Cubes
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`919mm mews;
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`l‘tl‘lIJS JJlIddet-Circle comrfioqet-cuoesr
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`032’262’3016 (J3 55 U4 PM
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`An offshoot product with similar functions, just in a different form. The fidget pads are shaped
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`The original cube features a six sided die with 6 unique fidget options. These include the
`following: an onloff—style switch, gears and a rolling ball, a small joystick, a spinning disc, 3
`rubbing pad, and depressible buttons.
`
`12 Sided Fidget Cube (Dodecagon):
`The newer 12 sided cube is a larger version that builds on the original fidget cube. Whilst It is
`
`larger in size you also get 6 additional fidget options. The 12 sided fidget cube also includes a
`lanyard so it can be hung on your keychain.
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`Fidget Cube 3.0:
`A slightly larger 6 sided fidget cube compared with the original. The fidget options are also
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`slightly different to the original and the finish is in a smooth silicon.
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`Mini Fidget Cube:
`There are now several minifnano variants of the fidget cube. The mini versions are smaller than
`the original cubes with similar fidgeting functions on each face of the dice.
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`Fidget Pads:
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`Serial No. 87157508
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`iii. www.techcrunch.com11
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`
`
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`11 December 12, 2016 Office Action, TSDR pp. 27-31.
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`Serial No. 87157508
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`Serial No. 87157508
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`iv. www.tomsguide.com12
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`
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`12 March 26, 2018 Office Action, TSDR pp. 31-32.
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`Serial No. 87157508
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`Serial No. 87157508
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`v.
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`www.spacerails.com13
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`13 November 4, 2018 Final Office Action, TSDR pp. 10-17.
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`Serial No. 87157508
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`vi. www.philemore.us14
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`Serial No. 87157508
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`vii. www.yourkidstable.com15
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`
`
`II. Applicant’s Arguments and Analysis
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`In traversing the refusal, Applicant argues that it was the first to use the
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`
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`designation FIDGET CUBE in connection with its identified goods.16 Such first use,
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`however, does not substantiate the exclusion of others from using the designation if
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`it is or has become the generic name of the goods. “[T]he fact that [a party] may be
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`the first or only user of a generic designation . . . does not justify registration if the
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`only significance conveyed by the term is that of the category of goods.” See In re
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`Empire Tech. Dev. LLC, 123 USPQ2d 1544, 1549 (TTAB 2017) (quoting In re
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`Greenliant Sys. Ltd., 97 USPQ2d 1078, 1083 (TTAB 2010)). The law does not permit
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`“anyone to obtain a complete monopoly on use of a descriptive [or generic] term simply
`
`
`14 June 1, 2019 Denial of Request for Reconsideration, 7 TTABVUE 3-8.
`15 Id., 7 TTABVUE 10.
`16 Applicant’s Appeal Brief, pp. 2, 5, and 9, 12 TTABVUE 3, 6 and 10.
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`Serial No. 87157508
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`by grabbing it first.” KP Permanent Make-Up, Inc. v. Lasting Impressions, Inc., 543
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`U.S. 111, 72 USPQ2d 1833, 1838 (2004) (citation omitted).
`
`Applicant relies on the Board’s decision in In re Trek 2000 Int’l Ltd., 97 USPQ2d
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`1106 (TTAB 2010) to support its argument that because Applicant was the first to
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`adopt and use the phrase FIDGET CUBE in commerce and immediately sought
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`federal trademark protection for the mark that was not in the public domain at the
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`time of adoption and use, and has successfully policed its mark, its applied-for mark
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`cannot be generic.17 Moreover, Applicant argues that “[a] generic finding at the outset
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`without giving Applicant the time to establish trademark rights for an arguably
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`descriptive term usurped by the knock-off market is contrary to public policy.”18
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`Applicant’s reliance on the Trek decision is misplaced. This case is easily
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`distinguishable on its facts. In Trek, the Board held that “where the evidence does
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`not show that competitors use the designation in issue, this may create doubt,
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`depending upon the totality of the record, as to whether a term primarily refers to a
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`genus of goods such that ‘sellers of competing brands cannot compete effectively
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`without using the name to designate the product they are selling.”’ Trek, 97 USPQ2d
`
`at 1109 (quoting Ty Inc. v. Softbelly’s Inc., 353 F.3d 528, 69 USPQ2d 1213, 1215 (7th
`
`Cir. 2003)); see also KP Permanent Make-Up, 72 USPQ2d at 1838 (“[T]here [is] no
`
`indication that the [Lanham Act] was meant to deprive commercial speakers of the
`
`ordinary utility of descriptive words”). The record in Trek showed “use of the term
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`17 Id. at p. 11, 12 TTABVUE 12.
`18 Id.
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`Serial No. 87157508
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`THUMBDRIVE or THUMB DRIVE to refer to a genus of goods” but also showed “the
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`origin of the term as a trademark and extensive use of the term as a trademark,” the
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`applicant’s use “of other terminology as the name of the goods, e.g., ‘external storage
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`device,”’ successful efforts by the applicant to police the misuse of its claimed mark
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`as a generic term, and no use of the term by competitors “after ten years of these
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`products being on the market … .” Id. at 1112-13. The Board concluded, on the totality
`
`of that record, that “‘the evidence of generic use is offset by applicant’s evidence that
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`shows not only a significant amount of proper trademark use but also trademark
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`recognition’ by third parties.” Id. at 1113 (quoting In re Am. Online Inc., 77 USPQ2d
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`1618, 1623 (TTAB 2006)).
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`Unlike the record in Trek, the record here does not show a significant amount of
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`trademark use by Applicant or trademark recognition by third parties. In fact, the
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`record demonstrates extensive third-party use of the designation FIDGET CUBE as
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`the generic name of a particular type of stress-relieving toy after Applicant began
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`using such designation in commerce. Moreover, while Applicant argues that its
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`policing efforts have caused third parties to cease use of the designation FIDGET
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`CUBE, the record indicates otherwise.
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`Applicant had the obligation, once it started using its applied-for FIDGET CUBE
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`mark in commerce, to educate the public promptly to use some name other than the
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`term it wants to call its mark. See generally 2 J. Thomas McCarthy, MCCARTHY ON
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`TRADEMARKS AND UNFAIR COMPETITION § 12.25 (5th ed. 2019 update) and cases cited
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`therein. The obligation arises in part from the need of prospective competitors to use
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`Serial No. 87157508
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`a generic term when marketing their own versions of goods with the same attributes.
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`As the Federal Circuit has explained, “[t]o allow trademark protection for generic
`
`terms, i.e., names which describe the genus of goods being sold, even when they have
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`become identified with a first user, would grant the owner of the mark a monopoly,
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`since a competitor could not describe his goods as what they are.” In re Merrill Lynch,
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`Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987).
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`Applicant also argues that because the designation FIDGET CUBE, when viewed
`
`in its entirety, is not found in the dictionary, it cannot be generic for its identified
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`goods.19 Applicant is mistaken. The fact that a word or term is not found in the
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`dictionary is not controlling on the question of registrability when the word or term
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`has a well-understood and recogn