Response to Office Action

REMARKS Registration has been refused under Section 23(c) of the Trademark Act on the grounds that Applicant's mark is generic for the goods designated thereunder. Trademark Act §23(c), 15 U.S.C. §1091(c). For the reasons discussed below, Applicant respectfully submits that its mark is capable of denoting a specific source, and therefore, is not generic. The Examining Attorney has not established a prima facie case that Applicant's mark is generic for its goods. Generic terms are incapable of indicating source and can never attain trademark status. Dan Robbins & Associates, Inc. v. International Association of Fire Chiefs, Inc., 599 F.2d 1009, 1014, 202 USPQ 100, 105 (CCPA 1979). Classifying a term as generic depends on whether members of the relevant public primarily use or understand the term to refer to the genus of goods or services. H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530 (Fed. Cir. 1986). The Examining Attorney bears the burden of showing that a proposed mark is generic. Indeed, the Examining Attorney must make a "substantial showing based on clear evidence of generic use" that the mark is, in fact, generic. In re Merrill Lynch, 828 F.2d 1567 (Fed. Cir. 1987). In this case, the Examining Attorney did not make a "substantial showing" that the relevant public understands TOESOX to refer to the genus of goods. Therefore, the mark should proceed to registration on the Supplemental Register. The examining attorney should support his or her action with relevant evidence whenever appropriate. TMEP §710.01. In the instant case, the Examining Attorney contends that TOESOX is generic for "socks." However, she did not submit any evidence of generic use in the Office Action wherein she refused registration of the mark as generic. As such, Applicant respectfully contends that the Examining Attorney has not made a "substantial showing" based on "clear evidence of generic use" that TOESOX is generic. A bald assertion of genericness is insufficient for a generic refusal. The Examining Attorney has a high bar for "substantial showing" with "clear evidence." As no evidence was submitted in the instant case, no "substantial showing" was made. It is not the Applicant's burden to show that its mark is not generic, rather, it is the Examining Attorney's burden to show that it is. In the previous office action in which the Examining Attorney refused registration based on mere descriptiveness, the Examining Attorney submitted evidence purporting to show descriptive use of the term. The evidence consisted of printouts of internet websites of 11 third-party retailers (one of the submitted retailers was Applicant, and therefore, is not included), third party registrations on the Principal Register for goods identified as "toe socks," and a wikipedia article about "toe socks." Applicant contends that this evidence does not establish that the relevant public primarily understands TOESOX as the common or class name for Applicant's goods. TMEP §1209.01(c). Were this evidence submitted by the Applicant in support of its position, the Examining Attorney would likely wholly, or at least partially, reject it as insufficient and irrelevant. TMEP §1209.03(a). As an initial matter, the term "sox" is not generic simply because it implies "socks." There are many different meanings and usages of the term "sox," including baseball teams that use the term and various clothing brands that also use the term. Thus, the term "sox," when misspelled and placed into a new single word like "toesox" is not generic, even if "toe socks" would be. Again, Applicant contends the Examining Attorney has not shown that the term "toe socks" is generic under the burden of proof required by cases and the TMEP. However, even if she had, the new term "toesox" is clearly not likely to be thought of as a generic word for toe socks by the consuming public. Rather, the consuming public would recognize that the new word "toesox" is a made-up word to signify that the socks have something different about their toes. Certainly, the public is not likely to know what exactly is unique or different about the toes of these socks. Therefore, the Applicant contends that its mark is suggestive, not descriptive, but has moved its registration to the Supplemental Register as a matter of economy and not an admission that is mark is even descriptive, let alone generic. It is simply not the case that "toesox" is a genus of goods. If the term is descriptive, then one must still make some sort of logical leap of imagination to guess what "toe socks" might mean: are they socks with sockets for toes? are they socks with cut-out toes? are they socks with extra padding on the toes? are they socks with less padding or grips on the toes? Furthermore, the relevant consumers in the instant case are likely not the public "at large." The genericness analysis must focus on the relevant public, meaning those who purchase or may purchase the goods in the marketplace. Magic Wand, Inc. v. RDB, Inc. 940 F.2d 640. Applicant markets its products to individuals who practice yoga and/or pilates. See Exhibit 1. In fact, Applicant is one of the top retailers of "yoga socks" in the marketplace. Therefore, in this case, the relevant public consists of individuals who practice yoga and/or pilates. The Examining Attorney has submitted no evidence that these individuals use TOESOX as a generic term for Applicant's goods. The third-party retailers submitted by the Examining Attorney do not prove that relevant purchasers refer to Applicant's goods as "toe socks." The submitted retailers are small on-line specialty sock stores, whose primary audience consists of collectors of unique socks, not individuals who practice yoga and/or pilates. These retailers are likely known to an extremely small group of people, namely "sock aficianados." This group does not include the likely purchasers of Applicant's goods, and therefore, the Examining Attorney has not established generic use. The remaining evidence is also insufficient to establish that TOESOX is generic. Printouts of third party registrations for goods identified as "toe socks" only show that some retailers use the term to identify products in trademark applications. This evidence does not show that the relevant public uses the term to identify a particular product. Indeed, the Examining Attorney has submitted no evidence that the relevant purchasers of Applicant's goods would perceive TOESOX as generic. The present case is analogous to In re Merrill Lynch, 828 F.2d 1567, 1571 (Fed. Cir. 1987). There, the court held that although various news services and websites used the mark CASH MANAGEMENT ACCOUNT generically, these sources were not probative on whether the relevant public understood the mark to be generic. Id. The court reasoned that CASH MANAGEMENT ACCOUNT was not shown to clearly and unequivocally describe a purpose of goods. Similarly here, the fact that some irrelevant sources may use the term "toe socks" does not show how the relevant public perceives the mark. Therefore, the Examining Attorney has not made a substantial showing that the relevant public primarily understands the term TOESOX to refer to a specific product. As such, the mark should proceed to registration. Applicant's mark fails the two-part test for genericness. A two prong test is used to determine genericness. The first prong establishes the class or genus of goods at issue. The second prong determines whether the term sought to be registered is understood by the relevant public primarily to refer to that genus of goods. H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530 (Fed. Cir. 1986). The genericness inquiry must focus on the description of goods in the application. Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638, 640 (Fed. Cir. 1991). Thus, in the instant case, the genus of goods is the recitation of goods Applicant has stated in its application, namely "socks." To meet the second prong of the H. Marvin Ginn test, the relevant public must primarily use TOESOX, or its phonetic equivalent, "toe socks," to refer to "socks." See H. Marvin Ginn at 989. The Examining Attorney has supplied no evidence that the relevant public uses TOESOX to refer to "socks." Although the genericness inquiry is supposed to focus on the description of goods in the application, the Examining Attorney may attempt to determine the genus of goods based on other evidence. Applicant respectfully contends that this practice is inappropriate considering that Applicant has not sought registration for any goods besides "socks." Thus, Applicant contends that the Examining Attorney should follow the rule articulated in Magic Wand and classify the genus of goods as identified in the application. See Magic Wand at 640. Regardless, Applicant wishes to clarify the actual goods sold under the TOESOX mark. Applicant is a retailer of socks designed specifically for yoga and/or pilates. See Exhibit 2. The term "yoga socks" is commonly used to identify goods similar to those of Applicant in the marketplace. See Exhibits 3, 4, and 5. Therefore, Applicant contends that if another genus is considered, that genus should be "yoga socks." TOESOX and/or its phonetic equivalent, "toe socks," is not understood by the relevant public primarily to refer to "yoga socks." TOESOX does not include the term "yoga" or any other term suggestive of yoga and/or pilates. Therefore, it is illogical to assume that TOESOX is the generic name for the genus of goods. Moreover, even if the Examining Attorney falsely contends the genus of goods is socks that individually cover one's toes, the term "toe socks" is not generic for that genus. The only evidence submitted by the Examining Attorney consists of use of the term "toe socks" by insignificant third-party sock retailers. The Examining Attorney has not submitted any evidence that the relevant public, here practicers of yoga and/or pilates, understands the term TOESOX or "toe socks" to refer to the genus of goods. Products similar to those of Applicant are called "yoga socks" on websites marketed to practicers of yoga and/or pilates, not "toe socks." Additionally, major US department stores, specifically Macy's, Nordstrom, and Sears, and the largest on-line footwear retailer, Zappos.com, do not sell products named "toe socks." Therefore, it is highly unlikely that the term TOESOX has even entered relevant purchasers' consciouses, let alone their vocabulary. How can "toe socks" be a generic class of goods when that very term is wide open to uses for a dozen different types of socks, specifically socks that have open toes, covered toes, grips on the toes, padded toes, Boston Red Sox socks, or any other unique product that could use the term "toe" in connection with the term "socks" to describe the various different products? The answer is, that the term, in some cases, may be descriptive, but certainly not generic for a class or genus of goods. There are too many possible meanings of the term "toe socks" for the term to constitute a generic reference to a genus of goods. Furthermore, with so many different possible interpretations and meanings of the term, it is certainly not clearly understood that TOESOX refers to any genus of goods. Additionally, Applicant contends that the term TOESOX or "toe socks" has not been in use long enough to become generic. Applicant did not begin use of the term TOESOX in commerce until October of 2004. Additionally, none of the third party registrations submitted by the Examining Attorney pre-date this date of use. Therefore, the term "toe socks" has been insignificantly used in commerce for slightly over four years. Applicant asserts that a much longer period of use is needed before the term could become generic. Bell South Corp. v. DataNational Corp., 35 USPQ2d 1554 (Fed. Cir. 1995) (introduced in the 1970s, the "walking fingers" logo had become generic by the time of divestiture of AT&T in 1984); King-Seeley Thermos Co. v. Aladdin Industries, Inc., 138 USPQ 349 (2d. Cir. 1963) (the court found that over a sixteen year period the mark THERMOS had become generic). For a descriptive term (or even a fanciful term) to become generic, sufficient time must pass for the relevant public to make the term generic; it must be overtaken by the process of genericide. While some terms are inherently generic, a word that is not generic at inception must be so widely used by the relevant public as a way of categorizing a genus of goods that it goes from being a descriptive, suggestive, or fanciful term to becoming a generic term. In light of the foregoing, Applicant asserts that its mark is not generic for the goods identified thereunder. Applicant respectfully submits that the Examining Attorney has not shown that TOESOX is the generic term for any genus of goods. As such, Applicant respectfully requests that the generic refusal be withdrawn and the application proceed to registration. Applicant's mark is capable of functioning as a source indicator. Generic trademarks are incapable of functioning as a trademark. See Dan Robbins. However, a mark that may not meet all requirements for registration on the Principal Register may still be registered on the Supplemental Register if it is "capable of distinguishing the applicant's goods." In re Bush Brothers & Co., 884 F.2d 569, 570 (Fed. Cir. 1989). Applicant contends that TOESOX is capable of distinguishing Applicant's goods in the marketplace. Indeed, there are many examples of TOESOX being used to indicate Applicant as the source of the product rather than any good. See Exhibit 6. As such, TOESOX is not generic, and at the very least, should proceed to registration on the Supplemental Register. Applicant's mark is suggestive. Although Applicant requested that its application be transferred to the Supplemental Register in the Response to Office Action dated September 19, 2007, Applicant never conceded that TOESOX is descriptive. Indeed, Applicant requested transfer to the Supplemental Register as a means to expedite registration. Because of the generic refusal, Applicant now submits that its mark is not descriptive, but is suggestive. A mark is merely descriptive under Section 2(e)(1) if it immediately conveys information concerning a significant quality, characteristic, function, ingredient, attribute, or feature of the product in connection with which it is used. In re Abcor Development Corp., 200 USPQ 215, 217 (CCPA 1978). A mark that connotes two meanings--one possibly descriptive, and the other suggestive of some other association--can be called suggestive, and thus the mark is not "merely" descriptive. MCCARTHY 11:19. For example, the mark POLY PITCHER for a polyethylene pitcher was found to be suggestive because it connotes a description of the plastic aspect of the container, but was also suggestive of Molly Pitcher of Revolutionary times. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 700 (C.A.N.Y. 1961). Applicant's mark, TOESOX, is, at the very least, both suggestive and descriptive. Applicant's mark does not immediately evoke any connotations or certain ideas about the goods being offered. There is nothing inherent to the term that describes Applicant's goods. Rather, the term TOESOX is a suggestive term created by Applicant. The term TOESOX suggests a product that protects one's toes. The exact purpose or function of Applicant's goods is unclear from the mark. As such, the mark is suggestive, and therefore, entitled to registration on the Principal Register. But, in light of the Applicant's desire to register its mark without appeal, it moved to the Supplemental Register for expedience only. Should the Examining Attorney continue her refusal of the present application, the Applicant reserves the right to amend its application back to teh Principal Register prior to appeal. Conclusion In light of the foregoing, Applicant asserts that its mark is not generic, and is, in fact, suggestive of the goods provided thereunder, and capable of denoting a specific source. TOESOX is not a term primarily used by relevant purchasers to refer to "socks" or any other genus of goods. Moreover, TOESOX is quite capable of, and actually does, denote Applicant as the source of the products designated thereunder. Therefore, Applicant respectfully requests that the generic refusal be withdrawn and the application proceed to registration.

Response to Office Action

To the Commissioner for Trademarks:

REMARKS Registration has been refused under Section 23(c) of the Trademark Act on the grounds that Applicant's mark is generic for the goods designated thereunder. Trademark Act §23(c), 15 U.S.C. §1091(c). For the reasons discussed below, Applicant respectfully submits that its mark is capable of denoting a specific source, and therefore, is not generic. The Examining Attorney has not established a prima facie case that Applicant's mark is generic for its goods. Generic terms are incapable of indicating source and can never attain trademark status. Dan Robbins & Associates, Inc. v. International Association of Fire Chiefs, Inc., 599 F.2d 1009, 1014, 202 USPQ 100, 105 (CCPA 1979). Classifying a term as generic depends on whether members of the relevant public primarily use or understand the term to refer to the genus of goods or services. H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530 (Fed. Cir. 1986). The Examining Attorney bears the burden of showing that a proposed mark is generic. Indeed, the Examining Attorney must make a "substantial showing based on clear evidence of generic use" that the mark is, in fact, generic. In re Merrill Lynch, 828 F.2d 1567 (Fed. Cir. 1987). In this case, the Examining Attorney did not make a "substantial showing" that the relevant public understands TOESOX to refer to the genus of goods. Therefore, the mark should proceed to registration on the Supplemental Register. The examining attorney should support his or her action with relevant evidence whenever appropriate. TMEP §710.01. In the instant case, the Examining Attorney contends that TOESOX is generic for "socks." However, she did not submit any evidence of generic use in the Office Action wherein she refused registration of the mark as generic. As such, Applicant respectfully contends that the Examining Attorney has not made a "substantial showing" based on "clear evidence of generic use" that TOESOX is generic. A bald assertion of genericness is insufficient for a generic refusal. The Examining Attorney has a high bar for "substantial showing" with "clear evidence." As no evidence was submitted in the instant case, no "substantial showing" was made. It is not the Applicant's burden to show that its mark is not generic, rather, it is the Examining Attorney's burden to show that it is. In the previous office action in which the Examining Attorney refused registration based on mere descriptiveness, the Examining Attorney submitted evidence purporting to show descriptive use of the term. The evidence consisted of printouts of internet websites of 11 third-party retailers (one of the submitted retailers was Applicant, and therefore, is not included), third party registrations on the Principal Register for goods identified as "toe socks," and a wikipedia article about "toe socks." Applicant contends that this evidence does not establish that the relevant public primarily understands TOESOX as the common or class name for Applicant's goods. TMEP §1209.01(c). Were this evidence submitted by the Applicant in support of its position, the Examining Attorney would likely wholly, or at least partially, reject it as insufficient and irrelevant. TMEP §1209.03(a). As an initial matter, the term "sox" is not generic simply because it implies "socks." There are many different meanings and usages of the term "sox," including baseball teams that use the term and various clothing brands that also use the term. Thus, the term "sox," when misspelled and placed into a new single word like "toesox" is not generic, even if "toe socks" would be. Again, Applicant contends the Examining Attorney has not shown that the term "toe socks" is generic under the burden of proof required by cases and the TMEP. However, even if she had, the new term "toesox" is clearly not likely to be thought of as a generic word for toe socks by the consuming public. Rather, the consuming public would recognize that the new word "toesox" is a made-up word to signify that the socks have something different about their toes. Certainly, the public is not likely to know what exactly is unique or different about the toes of these socks. Therefore, the Applicant contends that its mark is suggestive, not descriptive, but has moved its registration to the Supplemental Register as a matter of economy and not an admission that is mark is even descriptive, let alone generic. It is simply not the case that "toesox" is a genus of goods. If the term is descriptive, then one must still make some sort of logical leap of imagination to guess what "toe socks" might mean: are they socks with sockets for toes? are they socks with cut-out toes? are they socks with extra padding on the toes? are they socks with less padding or grips on the toes? Furthermore, the relevant consumers in the instant case are likely not the public "at large." The genericness analysis must focus on the relevant public, meaning those who purchase or may purchase the goods in the marketplace. Magic Wand, Inc. v. RDB, Inc. 940 F.2d 640. Applicant markets its products to individuals who practice yoga and/or pilates. See Exhibit 1. In fact, Applicant is one of the top retailers of "yoga socks" in the marketplace. Therefore, in this case, the relevant public consists of individuals who practice yoga and/or pilates. The Examining Attorney has submitted no evidence that these individuals use TOESOX as a generic term for Applicant's goods. The third-party retailers submitted by the Examining Attorney do not prove that relevant purchasers refer to Applicant's goods as "toe socks." The submitted retailers are small on-line specialty sock stores, whose primary audience consists of collectors of unique socks, not individuals who practice yoga and/or pilates. These retailers are likely known to an extremely small group of people, namely "sock aficianados." This group does not include the likely purchasers of Applicant's goods, and therefore, the Examining Attorney has not established generic use. The remaining evidence is also insufficient to establish that TOESOX is generic. Printouts of third party registrations for goods identified as "toe socks" only show that some retailers use the term to identify products in trademark applications. This evidence does not show that the relevant public uses the term to identify a particular product. Indeed, the Examining Attorney has submitted no evidence that the relevant purchasers of Applicant's goods would perceive TOESOX as generic. The present case is analogous to In re Merrill Lynch, 828 F.2d 1567, 1571 (Fed. Cir. 1987). There, the court held that although various news services and websites used the mark CASH MANAGEMENT ACCOUNT generically, these sources were not probative on whether the relevant public understood the mark to be generic. Id. The court reasoned that CASH MANAGEMENT ACCOUNT was not shown to clearly and unequivocally describe a purpose of goods. Similarly here, the fact that some irrelevant sources may use the term "toe socks" does not show how the relevant public perceives the mark. Therefore, the Examining Attorney has not made a substantial showing that the relevant public primarily understands the term TOESOX to refer to a specific product. As such, the mark should proceed to registration. Applicant's mark fails the two-part test for genericness. A two prong test is used to determine genericness. The first prong establishes the class or genus of goods at issue. The second prong determines whether the term sought to be registered is understood by the relevant public primarily to refer to that genus of goods. H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530 (Fed. Cir. 1986). The genericness inquiry must focus on the description of goods in the application. Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638, 640 (Fed. Cir. 1991). Thus, in the instant case, the genus of goods is the recitation of goods Applicant has stated in its application, namely "socks." To meet the second prong of the H. Marvin Ginn test, the relevant public must primarily use TOESOX, or its phonetic equivalent, "toe socks," to refer to "socks." See H. Marvin Ginn at 989. The Examining Attorney has supplied no evidence that the relevant public uses TOESOX to refer to "socks." Although the genericness inquiry is supposed to focus on the description of goods in the application, the Examining Attorney may attempt to determine the genus of goods based on other evidence. Applicant respectfully contends that this practice is inappropriate considering that Applicant has not sought registration for any goods besides "socks." Thus, Applicant contends that the Examining Attorney should follow the rule articulated in Magic Wand and classify the genus of goods as identified in the application. See Magic Wand at 640. Regardless, Applicant wishes to clarify the actual goods sold under the TOESOX mark. Applicant is a retailer of socks designed specifically for yoga and/or pilates. See Exhibit 2. The term "yoga socks" is commonly used to identify goods similar to those of Applicant in the marketplace. See Exhibits 3, 4, and 5. Therefore, Applicant contends that if another genus is considered, that genus should be "yoga socks." TOESOX and/or its phonetic equivalent, "toe socks," is not understood by the relevant public primarily to refer to "yoga socks." TOESOX does not include the term "yoga" or any other term suggestive of yoga and/or pilates. Therefore, it is illogical to assume that TOESOX is the generic name for the genus of goods. Moreover, even if the Examining Attorney falsely contends the genus of goods is socks that individually cover one's toes, the term "toe socks" is not generic for that genus. The only evidence submitted by the Examining Attorney consists of use of the term "toe socks" by insignificant third-party sock retailers. The Examining Attorney has not submitted any evidence that the relevant public, here practicers of yoga and/or pilates, understands the term TOESOX or "toe socks" to refer to the genus of goods. Products similar to those of Applicant are called "yoga socks" on websites marketed to practicers of yoga and/or pilates, not "toe socks." Additionally, major US department stores, specifically Macy's, Nordstrom, and Sears, and the largest on-line footwear retailer, Zappos.com, do not sell products named "toe socks." Therefore, it is highly unlikely that the term TOESOX has even entered relevant purchasers' consciouses, let alone their vocabulary. How can "toe socks" be a generic class of goods when that very term is wide open to uses for a dozen different types of socks, specifically socks that have open toes, covered toes, grips on the toes, padded toes, Boston Red Sox socks, or any other unique product that could use the term "toe" in connection with the term "socks" to describe the various different products? The answer is, that the term, in some cases, may be descriptive, but certainly not generic for a class or genus of goods. There are too many possible meanings of the term "toe socks" for the term to constitute a generic reference to a genus of goods. Furthermore, with so many different possible interpretations and meanings of the term, it is certainly not clearly understood that TOESOX refers to any genus of goods. Additionally, Applicant contends that the term TOESOX or "toe socks" has not been in use long enough to become generic. Applicant did not begin use of the term TOESOX in commerce until October of 2004. Additionally, none of the third party registrations submitted by the Examining Attorney pre-date this date of use. Therefore, the term "toe socks" has been insignificantly used in commerce for slightly over four years. Applicant asserts that a much longer period of use is needed before the term could become generic. Bell South Corp. v. DataNational Corp., 35 USPQ2d 1554 (Fed. Cir. 1995) (introduced in the 1970s, the "walking fingers" logo had become generic by the time of divestiture of AT&T in 1984); King-Seeley Thermos Co. v. Aladdin Industries, Inc., 138 USPQ 349 (2d. Cir. 1963) (the court found that over a sixteen year period the mark THERMOS had become generic). For a descriptive term (or even a fanciful term) to become generic, sufficient time must pass for the relevant public to make the term generic; it must be overtaken by the process of genericide. While some terms are inherently generic, a word that is not generic at inception must be so widely used by the relevant public as a way of categorizing a genus of goods that it goes from being a descriptive, suggestive, or fanciful term to becoming a generic term. In light of the foregoing, Applicant asserts that its mark is not generic for the goods identified thereunder. Applicant respectfully submits that the Examining Attorney has not shown that TOESOX is the generic term for any genus of goods. As such, Applicant respectfully requests that the generic refusal be withdrawn and the application proceed to registration. Applicant's mark is capable of functioning as a source indicator. Generic trademarks are incapable of functioning as a trademark. See Dan Robbins. However, a mark that may not meet all requirements for registration on the Principal Register may still be registered on the Supplemental Register if it is "capable of distinguishing the applicant's goods." In re Bush Brothers & Co., 884 F.2d 569, 570 (Fed. Cir. 1989). Applicant contends that TOESOX is capable of distinguishing Applicant's goods in the marketplace. Indeed, there are many examples of TOESOX being used to indicate Applicant as the source of the product rather than any good. See Exhibit 6. As such, TOESOX is not generic, and at the very least, should proceed to registration on the Supplemental Register. Applicant's mark is suggestive. Although Applicant requested that its application be transferred to the Supplemental Register in the Response to Office Action dated September 19, 2007, Applicant never conceded that TOESOX is descriptive. Indeed, Applicant requested transfer to the Supplemental Register as a means to expedite registration. Because of the generic refusal, Applicant now submits that its mark is not descriptive, but is suggestive. A mark is merely descriptive under Section 2(e)(1) if it immediately conveys information concerning a significant quality, characteristic, function, ingredient, attribute, or feature of the product in connection with which it is used. In re Abcor Development Corp., 200 USPQ 215, 217 (CCPA 1978). A mark that connotes two meanings--one possibly descriptive, and the other suggestive of some other association--can be called suggestive, and thus the mark is not "merely" descriptive. MCCARTHY 11:19. For example, the mark POLY PITCHER for a polyethylene pitcher was found to be suggestive because it connotes a description of the plastic aspect of the container, but was also suggestive of Molly Pitcher of Revolutionary times. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 700 (C.A.N.Y. 1961). Applicant's mark, TOESOX, is, at the very least, both suggestive and descriptive. Applicant's mark does not immediately evoke any connotations or certain ideas about the goods being offered. There is nothing inherent to the term that describes Applicant's goods. Rather, the term TOESOX is a suggestive term created by Applicant. The term TOESOX suggests a product that protects one's toes. The exact purpose or function of Applicant's goods is unclear from the mark. As such, the mark is suggestive, and therefore, entitled to registration on the Principal Register. But, in light of the Applicant's desire to register its mark without appeal, it moved to the Supplemental Register for expedience only. Should the Examining Attorney continue her refusal of the present application, the Applicant reserves the right to amend its application back to teh Principal Register prior to appeal. Conclusion In light of the foregoing, Applicant asserts that its mark is not generic, and is, in fact, suggestive of the goods provided thereunder, and capable of denoting a specific source. TOESOX is not a term primarily used by relevant purchasers to refer to "socks" or any other genus of goods. Moreover, TOESOX is quite capable of, and actually does, denote Applicant as the source of the products designated thereunder. Therefore, Applicant respectfully requests that the generic refusal be withdrawn and the application proceed to registration.