In Re C.E. SHEPHERD COMPANY, L.P.

• Court: Court of Appeals for the Federal Circuit
• Decided: August 1, 2024
• Docket: 23-1308
• Status: Unpublished

Opinion

Case: 23-1308 Document: 61 Page: 1 Filed: 08/01/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

IN RE: C.E. SHEPHERD COMPANY, L.P., Appellant ______________________

2023-1308 ______________________

Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 88636382. ______________________

Decided: August 1, 2024 ______________________

SEAN D. FORBES, Neel, Hooper & Banes, P.C., Houston, TX, argued for appellant. Also represented by BRYANT STEVEN BANES, SARAH P. HARRIS.

ERICA JEUNG DICKEY, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, ar- gued for appellee Katherine K. Vidal. Also represented by CHRISTINA J. HIEBER, FARHEENA YASMEEN RASHEED. ______________________

Before CHEN, CUNNINGHAM, and STARK, Circuit Judges. CHEN, Circuit Judge. C.E. Shepherd Company, L.P., (C.E. Shepherd) filed an application to register “MODULAR GABION SYSTEMS” Case: 23-1308 Document: 61 Page: 2 Filed: 08/01/2024

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as a trademark for “gabions of steel wire.” In re C.E. Shep- herd Co., No. 88636382, 2022 WL 16757662, at *1 (T.T.A.B. Oct. 27, 2022) (Decision). A gabion is a metal cage that may be filled with rocks and used in constructing dams, em- bankments, and other structures. The Trademark Trial and Appeal Board (Board) affirmed the examiner’s rejec- tion of the proposed mark because it is generic or alterna- tively merely descriptive without an acquired distinctiveness. Id. at *1, 25. C.E. Shepherd appeals the Board’s decision. We affirm because substantial evidence supports the Board’s findings. C.E. Shepherd argues the Board erred in finding that the proposed mark is generic and that the proposed mark has not acquired distinctiveness. “Genericness and ac- quired distinctiveness are factual determinations that we review for substantial evidence.” In re Louisiana Fish Fry Prods., Ltd., 797 F.3d 1332, 1335 (Fed. Cir. 2015). Sub- stantial evidence “means such relevant evidence as a rea- sonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. of New York v. NLRB, 305 U.S. 197, 229 (1938). Substantial evidence supports the Board’s conclusion that the proposed mark is generic. “The critical issue in genericness cases is whether members of the relevant pub- lic primarily use or understand the term sought to be pro- tected to refer to the genus of goods or services in question.” H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 989–90 (Fed. Cir. 1986). In its analysis, the Board relied on dictionary definitions, and also how C.E. Shepherd itself at times used the proposed mark to de- scribe a type of product, not a source. For example, C.E. Shepherd’s website provided that “Modular Gabion Sys- tems are engineered welded wire mesh products for earth retention and soil stabilization, erosion control and flood control, and landscape and architectural applications.” De- cision, 2022 WL 16757662, at *9; J.A. 99. In addition, the Board catalogued how third parties used the proposed Case: 23-1308 Document: 61 Page: 3 Filed: 08/01/2024

IN RE: C.E. SHEPHERD COMPANY, L.P. 3

mark. Mingshu Gabion Baskets Factory, for instance, dis- cussed on its website how it “suppl[ies] modular gabion sys- tem[s] to form a quick solution for retaining walls, earth retention and other uses,” and Acrazo Development Next Material also offered a Modular Gabion Systems product on its website. Decision, 2022 WL 16757662, at *11; J.A. 80–82. After assessing that evidence, the Board con- cluded that the relevant public used the proposed mark ge- nerically. Substantial evidence supports that finding. Contrary to C.E. Shepherd’s contention, the Board did not err in crediting evidence from international websites, given its finding that they were in English and were di- rected to the United States market. See In re Bayer AG, 488 F.3d 960, 966, 969 (Fed. Cir. 2007) (explaining poten- tial relevance of foreign internet evidence). Substantial evidence also supports the Board’s alterna- tive conclusion that the proposed mark is merely descrip- tive and has not acquired distinctiveness. C.E. Shepherd challenges only the Board’s acquired distinctiveness find- ing. Acquired distinctiveness “occurs when, in the minds of the public, the primary significance of a mark is to iden- tify the source of the product rather than the product it- self.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 211 (2000) (cleaned up). As the applicant, C.E. Shep- herd “bears the burden of proving acquired distinctive- ness.” Louisiana Fish Fry, 797 F.3d at 1335. Here, the Board considered C.E. Shepherd’s submitted evidence and reasonably concluded that C.E. Shepherd did not meet its burden. For example, the Board found that the customer affidavits submitted by C.E. Shepherd had little probative value because the affiants were not neces- sarily representative of the market. The Board also put little weight on C.E. Shepherd’s advertising expenditures because the figures seemed modest and there was no evi- dence about what C.E. Shepherd’s competitors spent on ad- vertising. C.E. Shepherd takes issue with these findings, Case: 23-1308 Document: 61 Page: 4 Filed: 08/01/2024

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but “[w]e may not reweigh this evidence on appeal.” In re Warsaw Orthopedic, Inc., 832 F.3d 1327, 1333 (Fed. Cir. 2016). The Board reasonably assessed the evidence, and substantial evidence supports its conclusion. We have considered C.E. Shepherd’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm the Board’s decision. AFFIRMED