Trademarks

Are Shell Casings Bullets? Are Tomatoes Vegetables?

Sometimes, yes.

|The Volokh Conspiracy |

From In re DeSean Ramsey dba BearArms Bracelets (decided Mar. 18, 2020, but just posted on Westlaw):

DeSean Ramsey DBA BearArms Bracelets ("Applicant") seeks registration on the Principal Register of the proposed mark BULLET BRACELET (in standard characters, BRACELET disclaimed) …

[T]he Trademark Act [generally] prohibits registration of a mark on the Principal Register that, when used in connection with an applicant's goods, is merely descriptive of them. "A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used."

By contrast, a mark is suggestive if it "requires imagination, thought, and perception to arrive at the qualities or characteristics of the goods." Suggestive marks, unlike merely descriptive terms, are registrable on the Principal Register without proof of acquired distinctiveness….

[W]e evaluate whether someone who is familiar with the goods will understand the mark to convey information about them. A mark need not immediately convey an idea of each and every specific feature of the goods in order to be considered merely descriptive; it is enough if it describes one significant attribute, function or property of the goods….

Applicant contends that the proposed mark BULLET BRACELET (with BRACELET disclaimed) is suggestive of the identified bracelets, bracelets made of paracord and jewelry because the goods are made from spent (fired) or empty pistol shell casings and paracord, rather than actual bullets. The Examining Attorney asserts that BULLET BRACELET is descriptive of the identified goods because it immediately describes a feature or characteristic of the goods, namely, bracelets made from part of a "bullet" or a "bullet shell casing," as those terms commonly are used and understood by the general public, and that the wording "bullet bracelet" "identifies the common name of a type of bracelet or piece of jewelry."

"Bullet" is defined as "a small ball or cone-shaped missile of lead, metal alloy, etc., to be shot from a firearm." There is no dispute that Applicant's goods do not include bullets, as that term is strictly defined.

However, the Examining Attorney submitted ample evidence from multiple sources demonstrating that the general public commonly misuses and understands the term "bullet" to describe entire ammunition cartridges and their individual components, including cases, casings or shell casings, and the head stamp portion of a shell casing. [Lots of examples from various publications and product descriptions omitted. -EV]

Based on the foregoing, we have no doubt that consumers who see the proposed mark BULLET BRACELET used on the identified bracelets, bracelets made of paracord and jewelry, immediately would understand that the goods feature "bullets" as that term is commonly (mis)used and understood…. "… As such, consumers will immediately understand without any imagination, mental gymnastics or multi-stage reasoning process that the goods feature, include and are made in part from a 'bullet.'" …

Accordingly, the proposed mark BULLET BRACELET is merely descriptive of the identified goods and therefore ineligible for registration on the Principal Register absent a showing of acquired distinctiveness.

Makes sense to me, whatever you might think about whether it's "wrong" to call shell casings "bullets." And this reminds me of the famous tomato-is-a-vegetable-not-a-fruit case, Nix v. Hedden (1893), which also strikes me as eminently sensible:

The single question in this case is whether tomatoes, considered as provisions, are to be classed as "vegetables" or as "fruit," within the meaning of the Tariff Act of 1883.

The only witnesses called at the trial testified that neither "vegetables" nor "fruit" had any special meaning in trade or commerce, different from that given in the dictionaries; and that they had the same meaning in trade to-day that they had in March, 1883.

The passages cited from the dictionaries define the word "fruit" as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are "fruit," as distinguished from "vegetables," in common speech, or within the meaning of the Tariff Act.

There being no evidence that the words "fruit" and "vegetables" have acquired any special meaning in trade or commerce, they must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes with fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: "We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand, in speaking generally of provisions, beans may well be included under the term `vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced.".

So there you have it: The Court held that tomatoes are a vegetable rather than a fruit for purposes of the Tariff Act, because it concluded that the Act used the terms in their culinary sense and not their botanical sense.

NEXT: Noel Canning Redux: Justices Breyer and Scalia wrote that the President could use the adjournment power to block Senate "intransigence" (Updated)

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    1. (Not a paid endorsement, simply posted for amusement)

    2. Botanically, it is “a” grass, anyway.

      “”We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds in the language of botany or natural history, but not in commerce nor in common parlance.”

      Obviously never been on a farm. Beans absolutely are “seeds” if you’re planting them.

    3. The plant is a grass. Corn as we eat it is a grain.

    4. Definition of:
      Corn : a small hard particle : grain
      Grain: a seed or fruit of a cereal grass
      Wheat: Wheat is a grass widely cultivated for its seed,
      Rice: the starchy seeds of an annual southeast Asian cereal grass
      We humans eat a lot of grass, but it is usually processed for us to eat it.

  1. I would probably find this amusing, except that I live near D.C., where you can be prosecuted for having a spent shell casing from weapon not registered to you (technically, same caliber, so if you had a .45 casing but only a 9mm pistol registered). Spent shell casings are treated like live ammo, which is absurd.

    1. The grabbers love contraband laws, the more ridiculous the better.

    2. Researching this, I see that they also use this as a “gotcha” to ruin the lives of non-natives, who typically wouldn’t even think of the possibility that having a spent cartridge on them, (I flew internationally once, not realizing I had one in my pocket.) could make them a felon.

      It’s like NY’s policy of charging stranded travelers with gun violations when they take possession of their checked guns: These jurisdictions are continually looking for ways to hurt gun owners who are just passing through.

  2. For what it’s worth, a lot of WW-II vets, some disabled, were making stuff like this 70-75 years ago. Sometimes from shell casings, sometimes from live rounds they’d disarmed. But there was a lot of surplus ammo kicking around, and they made stuff from it.

    So this was not a unique product….

    1. If you go to southeast Asia, you can still buy a WIDE variety of jewelry made from used spent ammo, shell casings, (hopefully-)neutered hand grenades from kids at most of the touristy street markets. Saw them in Laos, Viet Nam, and Cambodia. (Although I have no doubt that many or most were replicas, by this point.)

  3. I suppose for this consideration it doesn’t matter who makes up the target market. But if it did, and if the target market was mostly firearms owners, then I’d think the finding of descriptive rather than suggestive might be different.

    I can’t speak about firearms owners in general, but among those whom I know, few would consider a casing a bullet or refer to a casing as such. Most of us wouldn’t even refer to a round as a bullet, we’d only refer to the projectile as a bullet.

    1. Sadly, I wonder how many people know the difference.

      And while I’m not a fan of gun laws, I truly hope that someone is charitable enough to teach all these new gun owners basic weapon safety, starting with which end of the gun the bullet comes out of, and that it generally isn’t a good idea to get into its way.

      Same thing applies to chain saws — although worse because most people are bright enough to consider the fact that guns might be dangerous. Now as to razor-sharp shards of rapidly moving metal, no, that can’t possibly harm anyone….

    2. The phrase “target market” is a little disconcerting here.

  4. Sadly, I wonder how many people know the difference.

    C’mon. Even I know the difference.

    1. Quite a few people don’t. It’s like magazine/clip. It’s not at all uncommon to hear ‘So then you put the bullets in the clip’ instead of ‘So then you put the cartridges in the magazine’.

      (general aside: to grow potatoes, you plant ‘seed potatoes’, which aren’t seeds. And peanuts are nuts at the grocery, but to a botanist they are more akin to peas or beans than walnuts. Etc, etc)

      1. Walnuts are what you get when you nail someone’s balls to the wall.

        https://www.youtube.com/watch?v=B_3TlrZLpQ0

        1. So where do horse chestnuts come from?

  5. So what is the “public meaning” of term bullet?

    1. In 1828, Noah Webster’s dictionary said bullets were balls:

      “BULL’ET, noun A ball of iron or lead, called also shot, used to load guns for killing man or beast. Balls for cannon are made of iron; musket-balls are made of lead.”

      http://webstersdictionary1828.com/Dictionary/bullet

  6. Further niggardly (mean stinginess of sense) mashing of our language into barbarian pablum. The Ancient Greeks heard bar-bar-bar-bar listening to our barbar-ian ancestors speech.

  7. Just call them Brass Bracelets.

  8. Sounds to me more like they are para-cord bracelets with brass charms.

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