Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA876870 Filing date: 02/12/2018 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 79194077 Applicant S. MALHOTRA & CO. AG Correspondence Alexander Lazouski Address Lazouski IP LLC 14726 Bowfin Terrace, Suite 1 Lakewood Ranch, FL 34202 UNITED STATES Email: [email protected], [email protected] Submission Appeal Brief Attachments GAMOS SN 79194077 Appeal.pdf(324330 bytes ) Exhibit A.pdf(1802905 bytes ) Exhibit B.pdf(384875 bytes ) Filer's Name Alexander Lazouski Filer's email [email protected] Signature /asl/ Date 02/12/2018 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Applicant: S. MALHOTRA & CO. AG

Trademak:

Serial No. 79194077

APPLICANT’S BRIEF ON APPEAL

This is an appeal from a FINAL refusal dated July 11, 2017 to register the mark ,

Serial No. 79194077 (“Applicant’s Mark” or “ Mark”) arguing that is merely descriptive in regards to “Precious metals and their alloys and goods made of these materials or coated therewith included in this class, namely, jewelry and watches” (“Applicant’s Goods”).

The question presented in this appeal is whether Mark is merely descriptive in connection with Applicant’s Goods within the meaning of Trademark Act Section 2(e). As set forth more fully below, Applicant respectfully requests that the Trademark Trial and Appeal

Board (the “Board”) reverse the final refusal on the basis that “ ” is not merely descriptive.

I. DESCRIPTION OF RECORD

1. On October 20, 2016, Applicant filed an application for the Mark.

2. On November 19, 2016, an Official Action issued wherein the Examining Attorney, among other requirements, alleged that “ ” translates to “wedding” in English and is merely descriptive in connection with Applicant’s Goods.

3. Applicant filed a timely response on May 16, 2017 stating that “ ” has various non-descriptive meaning, or that a doctrine of foreign equivalents has no applicability. Therefore, Applicant argued, is not merely descriptive within the meaning of Trademark Act Section 2(e). 4. On July 11, 2017, a final Official Action issued wherein the Examining Attorney maintained a descriptiveness refusal and suggested the following translation statement: The English translation of the word “ ” in the mark is “wedding, matrimony or marriage.”

5. Applicant timely filed a Notice of Appeal on December 12, 2017.

II. EVIDENCE ON RECORD IN SUPPORT OF APPLICANT’S APPEAL

1. Translations of “gamos” from Greek and Spanish (Exhibit A).

2. Definition of “Hieros Gamos” Wikipedia (Exhibit B).

III. LEGAL ARGUMENTS

A. Generla Standards for Mere Descriptiveness

The Examining Attorney has the burden of establishing a prima facie case of mere descriptiveness. In re Gyulay, 3 USPQ 2d 1009 (Fed. Cir. 1987). The Board has noted on a number of occasions that “there is a thin line between a suggestive and a merely descriptive designation, and where reasonable men may differ, it is the Board’s practice to resolve the doubt in applicant’s favor and publish the mark for opposition.” In re Morton-Norwich Products, Inc.,

209 USPQ 791 (TTAB 1981); In re Bel Paese Sales Co., 1 USPQ 2d 1233 (TTAB 1986); In re

American Standard Inc., 223 USPQ 353, 355 (TTAB 1984); In re The Rank Organisation

Limited, 222 USPQ 324, 325 (TTAB 1984).

A mark or term is merely descriptive if it imparts or conveys an immediate idea as to the ingredients, qualities or characteristics of the goods with which it is used. In re Abcor

Development Corporation, 200 USPQ 215 (CCPA 1978). Further, not only must the wording immediately impart information about the goods, but it must do so with a “degree of

2 particularity.” In re Intelligent Medical Systems, Inc., 5 USPQ 2d 1674 (TTAB 1987); see also,

Holiday Inns, Inc. v. Monolith Enter., 212 USPQ 949 (TTAB 1981). In other words, in requiring a disclaimer on the basis of mere descriptiveness, the Examining Attorney must find more than simply some connection between the arguably-descriptive terms and the goods. The relationship must be such that the wording conveys a readily understood meaning of the goods to the average purchaser. That is, the mark must literally, and with particularity, “describe” the goods. As noted in In re Colonial Stores, Inc., 157 USPQ 382 (CCPA 1968) and In re Quik-Print Copy

Shops, Inc., 205 USPQ 505, n.7 (CCPA 1980), “merely” in “merely descriptive” means “only.”

The Board has consistently reversed the decisions of examining attorneys who refuse registration on the basis of mere descriptiveness in the absence of actual evidence linking the recognized meaning of the mark sought to be registered to the goods of the Applicant. See, e.g.,

In re Intelligent Medical Systems Inc., 5 USPQ 2d 1674 (TTAB 1987) (reversing examining attorney’s refusal to register “INTELLIGENT MEDICAL SYSTEMS”).

Unlike merely descriptive marks, suggestive marks do not directly describe the characteristics of the goods, but rather evoke them by requiring a consumer to use his imagination to draw conclusions about the nature and features of the goods. In re Colonial

Refining and Chemical Co., 196 USPQ 46 (TTAB 1977); Zatarains, Inc. v. Oak Grove

Smokehouse, Inc., 217 USPQ 988 (5th Cir. 1983). Granted, “[t]here must be some description in almost any suggestion or the suggesting process will not take place.” Q-tips, Inc. v Johnson &

Johnson, 98 USPQ 86, 88 (3d Cir. 1953); In re Reynolds Metals Co., 178 USPQ 296, 297

(CCPA 1973) (“…one may be informed by suggestion as well as by description.”). However, this fact alone does not preclude a finding that the mark itself is suggestive. Application of

Colonial Stores, Inc., 157 USPQ 382 (CCPA 1968).

3

B. The Doctrine Of Foreign Equivalents Has No Applicability

TMEP §1207.01(b)(vi)(A) states that

…[T]he doctrine of foreign equivalents has evolved into a guideline, not an absolute rule, and is applied only when the “ordinary American purchaser” would “stop and translate” the foreign wording in a mark into its English equivalent… (citation omitted, emphasis added)

Despite this directive, the Examining Attorney has refused to register Applicant’s mark based on a rigid application of the doctrine of foreign equivalents in order to find that GÁMOS is a descriptive term. Applicant respectfully suggests, however, that such doctrine should not be applied in this examination of Applicant’s mark since the doctrine only applies “when it is likely that the ordinary American purchaser would stop and translate [the word] into its English equivalent.” Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396

F.3d 1369, 1377 (Fed. Cir. 2005). In this instance, the term “ordinary American purchaser” refers to one who is knowledgeable in Greek and Spanish. See In re Thomas, 79 U.S.P.Q.2d 1021,

1024 (TTAB 2006) (“ordinary American purchaser . . . refers to the ordinary American purchaser who is knowledgeable in the foreign language”).

There is no basis even to presume, let alone to deem it “likely”, that the ordinary

American purchaser who is knowledgeable in Greek and Spanish “would stop and translate” the

GÁMOS mark – which is registered in connection with wines – into any “English equivalent”, particularly the word “wedding”, as presumed by the Examining Attorney. Indeed, it is recognized that “there are foreign expressions that even those familiar with the language will not translate, accepting the term as it is.” In re Tia Maria, Inc., 188 U.S.P.Q. 524, 525 (TTAB 1975) (finding that consumers will not translate TIA MARIA as the name of a Mexican restaurant because the marketplace makes it unfeasible for them to do so). See also In re Pan Tex Hotel

Corp., 190 U.S.P.Q. 109, 110 (TTAB 1976) (finding that consumers are unlikely to translate LA

POSADA when used as the name of a motor hotel into its English equivalent of “the inn,”

4 because “la posada” creates a different commercial impression in English than it does in Spanish).

Further, in terms of the translation of the mark for the purposes of applying the doctrine of foreign equivalents, TMEP §1207.01(b)(vi)(B) states that

...[W]here the evidence shows that the English translation is not exact, literal, or direct, the doctrine of foreign equivalents has generally not been applied to find the marks confusingly similar. See In re Buckner Enters., 6 USPQ2d 1316 (TTAB 1987) (holding DOVE (with design) for stoves and furnaces, and PALOMA for various forms of gas heating apparatus, not likely to cause confusion, because, inter alia, the Spanish word “paloma” and the English word “dove” are not exact synonyms in that “paloma” can be translated into either “dove” or “pigeon”). Thus, several translation dictionaries showing variations in the English meaning constitute evidence that the foreign word or term may not have a literal and direct translation, and the doctrine should not be applied. (citation omitted, emphasis added)

The Applicant respectfully informs the Examining Attorney that in addition to translation provided by the Examining Attorney, specifically, “wedding”, the word “GÁMOS” or “

” has the following meanings/translations: (1) matrimony; (2) marriage; (3) a sexual ritual that plays out a marriage between a god and a goddess, especially when enacted in a symbolic ritual where human participants represent the deities; (4) union; (5) small deer; (6) buck.

Thus, based on the attached evidence, the word “ ” has well-established alternative meanings, which constitutes evidence that may not have a literal and direct translation, and the doctrine of foreign equivalents should not be applied.

Even to consider (purely for argument’s sake) that the doctrine of foreign equivalents applies, these many definitions of “ ” remove this term from the merely descriptive category. Because “GÁMOS” has no single meaning in connection with covered goods, this

5 term cannot have the readily apparent, single meaning required for the term to be merely descriptive, and removes the term from the merely descriptive category. Applicant submits that the mental leap between “ ” and the goods attributes is not virtually instantaneous, which strongly indicates suggestiveness, not descriptiveness. If the meaning of the term itself is not readily apparent, it would be difficult for that term to immediately describe the associated goods, especially with the degree of particularity required by relevant case law for a descriptiveness refusal.

Moreover, even if to accept the Examining Attorney’s translation statement in the final office action that “ ” only means “marriage”, “wedding” or “matrimony”, may just as well suggest that Applicant’s jewelry and watches have a combination of multiple parts or

“marriage of metals” technique when manufacturing watches or jewelry when two or more metals are infused together creating beautiful patters. Thus, based on the evidence on record, the term “ ” has well-established alternative meanings, which constitutes evidence that

may not have a literal and direct translation, and the doctrine of foreign equivalents should not be applied. Even is “ ” is translated into English its English translation

“marriage” is capable of more than one interpretation, which creates a clever double entendre.

According to TMEP §1213.05(c) the mark that comprises the "double entendre" will not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the goods or services.

Therefore, the wording “ ” as used in the instant application does not have an immediate connotation, creates a double entendre and is “open to numerous interpretations as to its precise meaning.” Because the wording “ ” requires imagination and “mental pause”

6 to ascertain its meaning as used in connection with watches, “ ” conveys no immediate, definite information regarding the nature of the watches and jewelry offered by the Applicant.

Therefore, Applicant respectfully requests withdrawal of the refusal in regards to the merely descriptiveness. Considering multiple translations of “ ” Applicant agrees with the translation statement suggested by the Board.

CONCLUSION

As the Board stated in In re Shutts, “[a]t the very least, however, we have doubts about the ‘merely descriptive’ character of the mark before us and, unlike the situation in determining likelihood of confusion under Section 2(d) of the Trademark Act, it is clear that such doubts are to be resolved in favor of applicants.” 217 U.S.P.Q. at 365 (citations omitted); see also In re

Gracious Lady Service, Inc., 175 U.S.P.Q. 380 (TTAB 1972).

Accordingly, Applicant requests withdrawal of the descriptiveness refusal and agrees with the translation statement suggested by the Board.

.

Respectfully submitted,

/alazouski/ Alexander S. Lazouski Lazouski IP LLC 14726 Bowfin Terrace, Suite 1, Lakewood Ranch, FL 34202 Attorney for Applicant Phone: 201-645-5616

7 12/13/2016 Gamos ­ Spanish to English Translation

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gamos fallow­deer, small deer native to Europe and Asia

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Spanish English Dictionary (Granada University, Spain), 7.7 (n.) = fallow deer. Ex: The analysis was applied to the identification of meats from red deer, fallow deer, roe deer, cattle, sheep, and goat .

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gamos is the plural form of gamo.

gamo (https://audio1.spanishdict.com/audio? lang=es&text=gamo&key=560fc48488502b51a5c59c4af39b014d)

fallow (/translate/fallow) deer report this ad (/translate/deer) Want to Learn Spanish? Try Fluencia

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utm_source=sd_desktop&utm_medium=sidebar&h=2) Dictionary Examples (/examples/gamos)

Looking for the suffix ­gamo instead? (/translate/­gamo)

FOREO LUNA Mini 2 Fuchsia el gamo, la gama 103 Shop now $139.00 MASCULINE OR FEMININE NOUN (HTTP://WWW.SPANISHDICT.COM/TOPICS/SHOW/2) report this ad 1. (animal) a. fallow deer (/translate/fallow%20deer) El cazador tomó su rifle y apuntó al gamo. The hunter took his rifle and aimed at Word of the Day MAY 16 the fallow deer. b. buck (/translate/buck) (male) el remolino Los hambrientos lobos atacaron al gamo. The hungry wolves attacked the buck. (/wordoftheday/3123/el­ c. doe (/translate/doe) (female) remolino) Vimos una gama preñada pastando cerca del arroyo. We saw a pregnant doe grazing near the stream. (https://audio1.spanishdict.com/audio? lang=es&text=el­ Copyright © 2016 Curiosity Media Inc. (http://www.spanishdict.com) remolino&key=06cb85652b3bdc54bc97741e810f1b95) whirlpool; whirlwind; eddy

gamo GET THE FREE WORD OF THE DAY!

NOUN email Subscribe 1. (general) a. fallow deer

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How to Say "What's Up?" in Spanish (/guide/how­to­say­whats­up­in­ gamo spanish) buck of fallow deer; (of fallow deer) What is the Difference Between Collins Complete Spanish Electronic Dictionary © HarperCollins Publishers 2011 "Vamos" and "Vamanos"? (/guide/what­is­the­difference­ (http://www.collinsdictionary.com/dictionary/english­spanish) between­vamos­and­vamanos) http://www.spanishdict.com/translate/gamos 1/3 5/16/2017 Gamos | Spanish to English Translation ­ SpanishDict

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http://www.spanishdict.com/translate/gamos 3/3 12/13/2016 gámos ­ Greek­English Dictionary ­ Glosbe

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Dictionary (/) / Greek­English Dictionary (/el/en/) / gámos ()

Greek - (/en/el) English

Greek ­ English Dictionary >

gámos in English translation and definition "gámos", Greek­English Dictionary online Translations into English:

marriage p p p p p (noun )

matrimony (noun )

wedding p p p p (noun )

Similar phrases in dictionary Greek English. (1)

γάμος (/el/en/%CE%B3%CE%AC%CE%BC%CE%BF%CF%82) ; bridal; espousal; match; nuptial; nuptials; wedlock; wedding; marriage; union; matrimony; marriage ceremony; hymeneals; wedding ceremony; spousal relationship

Example sentences with "gámos", stemming (/el/en/g%C3%A1mos?tmmode=MUST&stem=false#translationExamples) translation memory

No translation memories found. add example (/ajax/addExample?from=el&dest=en#tm­table­container) Showing page 1. Found 0 sentences matching phrase "gámos".Found in 0.359 ms. Translation memories are created by human, but computer aligned, which might cause mistakes. They come from many sources and are not checked. Be warned.

https://glosbe.com/el/en/g%C3%A1mos 1/1 https://en.wiktionary.org/wiki/%CE%B3%CE%AC%CE%BC%CE%BF%CF%82 25.11.2016 5/16/2017 Hieros gamos ­ Wikipedia Hieros gamos From Wikipedia, the free encyclopedia

Hieros gamos or Hierogamy (Greek ἱεὸ γάμο, ἱεογαμία "holy marriage") is a sexual ritual that plays out a marriage between a god and a goddess, especially when enacted in a symbolic ritual where human participants represent the deities.

The notion of hieros gamos does not presuppose actual performance in ritual, but is also used in purely symbolic or mythological context, notably in alchemy and hence in Jungian psychology.

Contents

1 Hinduism 2 Ancient Near East Hieros gamos of Hera (shown with 3 Greek mythology Iris) and Zeus, 1900 drawing of a 4 Tantric Buddhism fresco at Pompeii. 5 Alchemy and Jungian psychology 6 Wicca 7 See also 8 References 9 External links

Hinduism

In Hinduism, Devadasi tradition (देवदासी / ವ; "servant of god") is a religious tradition in which girls are "married" and dedicated to a deity (deva or devi) or to a Hindu temple and includes performance aspects such as those that take place in the temple as well as in the courtly and mujuvani [Telugu] or home context. Originally, in addition to this and taking care of the temple and performing rituals, these women learned and practiced Sadir, Odissi and other classical Indian artistic traditions and enjoyed a high social status. Though traditionally, they carry out dances in the praise of lord, they also evolved into Sacred Marriage over time. Ancient Near East

Sacred prostitution was common in the Ancient Near East[1] as a form of "Sacred Marriage" or hieros gamos between the king of a Sumerian city­state and the High Priestess of Inanna, the Sumerian goddess of love, fertility, and warfare. Along the Tigris and Euphrates rivers there were many shrines and temples dedicated to Inanna. The temple of Eanna, meaning "house of heaven"[2] in Uruk[3] was the greatest of these. The temple housed Nadītu, priestesses of the goddess. The high priestess would choose for her bed a young man who represented the shepherd Dumuzid, consort of Inanna, in a hieros gamos or sacred marriage, celebrated during the annual Duku ceremony, just before Invisible Moon, with the autumn Equinox[4] (Autumnal Zag­mu Festival). Greek mythology

https://en.wikipedia.org/wiki/Hieros_gamos 1/3 5/16/2017 Hieros gamos ­ Wikipedia In Greek mythology the classic instance is the wedding of Zeus and Hera celebrated at the Heraion of Samos,[5] and doubtless its architectural and cultural predecessors. Some scholars[6] would restrict the term to reenactments, but most accept its extension to real or simulated union in the promotion of fertility: such an ancient union of Demeter with Iasion, enacted in a thrice­ploughed furrow, a primitive aspect of a sexually­active Demeter reported by Hesiod,[7] is sited in Crete, origin of much early Greek myth. In actual cultus, Walter Burkert found the Greek evidence "scanty and unclear": "To what extent such a sacred marriage was not just a way of viewing nature, but an act expressed or hinted at in ritual is difficult to say"[8] the best­known ritual example surviving in classical Greece is the hieros gamos enacted at the Anthesteria by the wife of the Archon basileus, the "Archon King" in Athens, originally therefore the queen of Athens, with Dionysus, presumably represented by his priest or the basileus himself, in the Boukoleion in the Agora.[9]

The brief fertilizing mystical union engenders Dionysus, and doubled unions, of a god and of a mortal man on one night, result, through telegony, in the semi­divine nature of Greek heroes such as Theseus and Heracles among others. Tantric Buddhism

In Tantric Buddhism of Nepal, Bhutan, India and Tibet, yab­yum is a ritual of the male deity in union with his female consort. The symbolism is associated with Anuttarayoga tantra where the male figure is usually linked to compassion (karuṇā) and skillful means (upāya­kauśalya), and the female partner to 'insight' (prajñā).[10][11] Yab­ yum is generally understood to represent the primordial (or mystical) union of wisdom and compassion.[12]

Maithuna is a Sanskrit term used in Tantra most often translated as sexual union in a ritual context. It is the most important of the five makara and constitutes the main part of the Grand Ritual of Tantra variously known as Panchamakara, Panchatattva, and Tattva Chakra.

The symbolism of union and polarity is a central teaching in Tantric Buddhism, especially in Tibet. The union is realized by the practitioner as a mystical experience within one's own body. Alchemy and Jungian psychology Maithuna at Khajuraho

The hieros gamos is one of the themes that Carl Jung dealt with, in his book Symbols of Transformation. In the novel Hieros Gamos (Sacred Union) ­ A Confession (2013), author Lia Cacciari, inspired by Jung's thematic exploration of the hieros gamos as an alchemical union of opposites, tells a story of feuding medieval siblings that culminates in an incestuous union. Wicca

In Wicca, the Great Rite is a ritual based on the Hieros Gamos. It is generally enacted symbolically by a dagger being placed point first into a chalice, the action symbolizing the union of the male and female divine in the Hieros gamos. In British Traditional Wicca, the Great Rite is sometimes carried out in actuality by the High Priest and High Priestess. See also

Maithuna https://en.wikipedia.org/wiki/Hieros_gamos 2/3 5/16/2017 Hieros gamos ­ Wikipedia Spirit spouse Sacred prostitution Sex magic Tantra References

1. James Frazer (1922), The Golden Bough, 3e, Chapter 31: Adonis in Cyprus 2. é­an­na = sanctuary ('house' + 'Heaven'[='An'] + genitive) [John Halloran's Sumerian Lexicon v. 3.0 ­­ see link below] 3. modern­day Warka, Biblical Erech 4. Wolkstein, D.; Kramer, S. Noah. Inanna, Queen of Heaven and Earth. 5. Walter Burkert warns that "the Hera festival is much too complicated to be understood simply as Hera's wedding" (Burkert, Greek Religion, J. Raffan, Depiction of the fermentatio stage as tr. (Cambridge: Harvard University Press, 1985) §II.7.7 "Sacred Marriage" 108. hieros gamos, woodcut from the 16th 6. For example 'H. Sauer, in Der Kleine Pauly, s.v. century Rosary of the Philosophers. 7. Hesiod, Theogony 969f. 8. Burkert 1985:108. 9. S.M. Kramer, The Sacred Marriage Rite (Bloomington:Indiana University Press, 1969); Karl Kerenyi, Zeus und Hera. Urbild des Vaters des Gatten und der Frau (Leiden:Brill 1972) 83­90. 10. Keown, Damien. (2003). A Dictionary of Buddhism, p. 338. Oxford University Press. ISBN 0­19­860560­9. 11. "Yab Yum Iconography and the Role of Women in Tibetan Tantric Buddhism." The Tibet Journal. Vol. XXII, No. 1. Spring 1997, pp. 12­34. 12. The Marriage of Wisdom and Method (http://www.seriousseekers.com/News%20and%20Articles/pallis_marriagewisdom method.pdf) By Marco Pallis

External links

The Archetype of the Holy Wedding in Alchemy and in the Wikimedia Commons has Unconscious of Modern Man (http://paulijungunusmundus.eu/hknw/ media related to Hieros holy_wedding_alchemy_modern_man_contents.htm), Remo F. Roth, gamos. Ph.D.

Retrieved from "https://en.wikipedia.org/w/index.phpςtitle=Hieros_gamos&oldid=777850251"

Categories: Marriage Ritual Sexuality and religion Ancient Greek religion

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