INTERNATIONAL CLASS 31

INTERNATIONAL CLASS 31

(Agricultural, horticultural and forestry products)

GENERAL SCOPE OF CLASS 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt.

1. SEARCHING

RELATED INTERNATIONAL CLASSES
29	Foods and beverages
30	Food and beverages
32	Beverages
33	Alcoholic beverages
1	Fertilizers
5	Baby food, diet food, dietary supplements
35	Grocery stores and delicatessens
43 (form-er 42)	Restaurant and catering services

b. USING COORDINATED CLASSES

029[CC]: yields 005, 030, 031, 032, 033, 035, 042, 043, A, B, 200

030[CC]: yields 001, 005, 029, 031, 032, 033, 035, 042, 043, A, B, 200 (Usually, most useful to search)

031[CC]: yields 005, 029, 030, 035, 042, 043, 044, A, B, 200

032[CC]: yields 005, 029, 030, 031, 033, 035, 042, 043, A, B, 200

033[CC]: yields 005, 029, 030, 031, 032, 035, 042, 043, A, B, 200

2. IDENTIFICATION ISSUES

a. CERTAIN GOODS ARE SPECIAL TO CLASS 31:

b. CERTAIN GOODS ARE EXCLUDED FROM CLASS 31

· food additives for non-nutritional purposes for use as flavoring – 30

· animal feed additive for use as a nutritional supplement – 5

· processed edible seeds – 29

· processed fruit or vegetables – 29

· eggs – 29

· fish [for food purposes] – 29

· artificial flowers or plants – 26

· processed herbs – 30

· chocolate covered nuts or fruit – 30

· candied or processed nuts or fruit - 29

c. INDEFINITE TERMINOLOGY

Fruits

Grains

Nuts

Vegetables

NOTE: must be amended to indicate goods are unprocessed, raw or fresh (processed nuts, fruits and vegetables are in IC29, and processed grains are in IC 30).

Popcorn: unpopped – IC 31

popped - IC 30

Don’t use registered marks in id’s:

KITTY LITTER

3. DESCRIPTIVE REFUSALS

Evidence

Two useful on-line resources for class 31 examination are:

www.epicurious.com

www.foodtv.com

4. SPECIMEN ISSUES

Menus are acceptable for foods where the mark is used to identify certain food items that have been prepared for consumption on or off the premises. See In re Marriott Corporation, 173 USPQ 799 (CCPA 1972), where “TEEN TWIST” was used on a menu to designate a ham, cheese and tomato sandwich. However, please note In re Brown & Portillo Inc., 5 USPQ2d 1381 (TTAB 1987) and In re El Torito Restaurants Inc., 9 USPQ2d 2002 (TTAB 1988) in which a term used to identify a single menu item found not to function as a service mark to identify restaurant services.

A mark displayed on a truck with refrigeration is an acceptable use since the truck acts as a container for the goods and a photograph of the truck with that display serves as an acceptable specimen. See In re E.A. Miller & Sons Packing Co., Inc., 225 USPQ 592 (TTAB 1985).

Displays associated with the goods are sometimes submitted. These are usually acceptable if it is clear how such displays are used with the goods. If there is doubt, an explanation should be required.

5. VARIETAL AND CULTIVAR NAMES

Varietal or cultivar names are designations given to cultivated varieties or subspecies of live plants or agricultural seeds. They amount to the generic name of the plant or seed by which such variety is known to the public. Such names can consist of numeric or alphanumeric code or can be a “fancy” (arbitrary) name. The terms “varietal” and “cultivar” may have slight semantic differences but are the same for trademark purposes.

Subspecies are types of a particular species of plant or seed which, in turn, are members of a particular genus. For example, all maple trees are in the genus Acer. The sugar maple species is known as Acer saccharum, while the red maple species is called Acer rubrum. In turn, these species have been subdivided into various cultivated varieties that are developed commercially and given varietal or cultivar names that are known to the public.

If it is determined that a proposed mark is a varietal or cultivar name, the proper grounds for refusal is that the proposed mark is the varietal or cultivar name for the goods and, as such, does not function as a mark under Trademark Act Sections 1, 2 and 45; 15 U.S.C. Sections 1051, 1052 and 1127. In re Hilltop Orchards & Nurseries, Inc., 206 USPQ 1034 (TTAB 1979). This statutory basis is the same as that used for refusing functional configurations of goods. While varietal and cultivar names can be thought of as generic designations, they are also somewhat analogous to functional configurations. The names are used in the plant patent to identify the variety. As in the case of functional product configurations, it is against public policy for any one manufacturer to retain exclusivity in a particular variety of plant, or the name of such variety, once its patent expires.

Whenever an application seeking registration of a mark for a live plant or agricultural seed is filed, Office policy requires the examining attorney to determine whether the term sought to be registered has ever been used as a varietal or cultivar name for such goods. A number of different sources of evidence must be utilized, depending upon the particular goods involved, to determine whether a term is a cultivar/varietal name. Searches for varietal or cultivar name clearance are handled by the law librarian. The examining attorney should always ask the applicant whether term has ever been used as a varietal or cultivar name and whether a plant patent exists under such name.

We have several different contacts for different types of plants and seeds. The following is a list of names and telephone numbers of our contacts:

GRIN - Quinn Sinot 301-504-6072

USDA - Al Bergoon at the Federal Seed Depository 301-504-8138 Email: al.burgoon@usda.gov

John Wiersma 301-504-9181

American Rose Society - Michael Kromes Fax no. 318-938-5405

US National Arboretum - 202-245-5961

University of Florida Horticulture - Malcolm Manners 863-6804337 This gentleman is an expert for varietals but especially the rose varietal.