Wednesday, April 15, 2020

Are Shell Casings Bullets? Are Tomatoes Vegetables?

By Eugene Volokh - April 15, 2020 at 07:44PM

From In re DeSean Ramsey dba BearArms Bracelets (decided Mar. 18, 2020, but just posted on Westlaw):

DeSean Ramsey DBA BearArms Bracelets ("Applicant") seeks registration on the Principal Register of the proposed mark BULLET BRACELET (in standard characters, BRACELET disclaimed) …

[T]he Trademark Act [generally] prohibits registration of a mark on the Principal Register that, when used in connection with an applicant's goods, is merely descriptive of them. "A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used."

By contrast, a mark is suggestive if it "requires imagination, thought, and perception to arrive at the qualities or characteristics of the goods." Suggestive marks, unlike merely descriptive terms, are registrable on the Principal Register without proof of acquired distinctiveness….

[W]e evaluate whether someone who is familiar with the goods will understand the mark to convey information about them. A mark need not immediately convey an idea of each and every specific feature of the goods in order to be considered merely descriptive; it is enough if it describes one significant attribute, function or property of the goods….

Applicant contends that the proposed mark BULLET BRACELET (with BRACELET disclaimed) is suggestive of the identified bracelets, bracelets made of paracord and jewelry because the goods are made from spent (fired) or empty pistol shell casings and paracord, rather than actual bullets. The Examining Attorney asserts that BULLET BRACELET is descriptive of the identified goods because it immediately describes a feature or characteristic of the goods, namely, bracelets made from part of a "bullet" or a "bullet shell casing," as those terms commonly are used and understood by the general public, and that the wording "bullet bracelet" "identifies the common name of a type of bracelet or piece of jewelry."

"Bullet" is defined as "a small ball or cone-shaped missile of lead, metal alloy, etc., to be shot from a firearm." There is no dispute that Applicant's goods do not include bullets, as that term is strictly defined.

However, the Examining Attorney submitted ample evidence from multiple sources demonstrating that the general public commonly misuses and understands the term "bullet" to describe entire ammunition cartridges and their individual components, including cases, casings or shell casings, and the head stamp portion of a shell casing. [Lots of examples from various publications and product descriptions omitted. -EV]

Based on the foregoing, we have no doubt that consumers who see the proposed mark BULLET BRACELET used on the identified bracelets, bracelets made of paracord and jewelry, immediately would understand that the goods feature "bullets" as that term is commonly (mis)used and understood…. "… As such, consumers will immediately understand without any imagination, mental gymnastics or multi-stage reasoning process that the goods feature, include and are made in part from a 'bullet.'" …

Accordingly, the proposed mark BULLET BRACELET is merely descriptive of the identified goods and therefore ineligible for registration on the Principal Register absent a showing of acquired distinctiveness.

Makes sense to me, whatever you might think about whether it's "wrong" to call shell casings "bullets." And this reminds me of the famous tomato-is-a-vegetable-not-a-fruit case, Nix v. Hedden (1893), which also strikes me as eminently sensible:

The single question in this case is whether tomatoes, considered as provisions, are to be classed as "vegetables" or as "fruit," within the meaning of the Tariff Act of 1883.

The only witnesses called at the trial testified that neither "vegetables" nor "fruit" had any special meaning in trade or commerce, different from that given in the dictionaries; and that they had the same meaning in trade to-day that they had in March, 1883.

The passages cited from the dictionaries define the word "fruit" as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are "fruit," as distinguished from "vegetables," in common speech, or within the meaning of the Tariff Act.

There being no evidence that the words "fruit" and "vegetables" have acquired any special meaning in trade or commerce, they must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes with fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: "We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand, in speaking generally of provisions, beans may well be included under the term `vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced.".

So there you have it: The Court held that tomatoes are a vegetable rather than a fruit for purposes of the Tariff Act, because it concluded that the Act used the terms in their culinary sense and not their botanical sense.

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