In Re Stanbel, Inc, 925 F.2d 1480 (Fed. Cir. 1991)

Stanbel, Inc., a Massachusetts Corporation, appeals from a judgment of the Trademark Trial and Appeal Board (Board) affirming an examiner's refusal to register "ICE-PAK." We AFFIRM.

OPINION

Stanbel has not demonstrated clear error in the Board's finding that "ICE-PAK" is generic. Stanbel's argument that some of the published references to "ice pack" are ambiguous does not demonstrate clear error because others of the references unambiguously indicate the public's use of "ice pack" to generically refer to the type of product to which Stanbel has long applied "ICE-PAK" and "ICE-PAKS." Stanbel's cited dictionary entries were not of record before the Board and cannot be considered on appeal. The same is true of Stanbel's reproduction in its brief of non-record pictorials allegedly representing competing products.

Stanbel also fails to show clear error in the Board's determinations that "ICE-PAK" was merely descriptive and that it had not acquired secondary meaning. The Board correctly evaluated the Sears letter. Stanbel provides no evidence of consumer recognition of "ICE-PAK" as a trademark. Stanbel's reliance on Reg. No. 1,466,057 is unavailing because the action of the examiner in that case is not binding in this case and the registration was for a different mark. The Illinois registration was of a stylized ICE-PAK design, not the typed form here involved.