NOTE: This disposition is nonprecedential.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, argued 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” 

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

as a trademark for “gabions of steel wire.” In re C.E. Shepherd 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, embankments, and other structures. The Trademark Trial 

and Appeal Board (Board) affirmed the examiner’s rejection of the proposed mark because it is generic or alternatively 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 acquired 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). Substantial evidence “means such relevant evidence as a reasonable 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 public primarily use or understand the term sought to be protected 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 describe a type of product, not a source. For example, C.E. 

Shepherd’s website provided that “Modular Gabion Systems are engineered welded wire mesh products for earth 

retention and soil stabilization, erosion control and flood 

control, and landscape and architectural applications.” Decision, 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: 2 Filed: 08/01/2024
IN RE: C.E. SHEPHERD COMPANY, L.P. 3

mark. Mingshu Gabion Baskets Factory, for instance, discussed on its website how it “suppl[ies] modular gabion system[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 concluded that the relevant public used the proposed mark generically. 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 directed to the United States market. See In re Bayer AG, 

488 F.3d 960, 966, 969 (Fed. Cir. 2007) (explaining potential relevance of foreign internet evidence).

Substantial evidence also supports the Board’s alternative conclusion that the proposed mark is merely descriptive and has not acquired distinctiveness. C.E. Shepherd 

challenges only the Board’s acquired distinctiveness finding. Acquired distinctiveness “occurs when, in the minds 

of the public, the primary significance of a mark is to identify the source of the product rather than the product itself.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 

205, 211 (2000) (cleaned up). As the applicant, C.E. Shepherd “bears the burden of proving acquired distinctiveness.” 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 necessarily 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 evidence about what C.E. Shepherd’s competitors spent on advertising. C.E. Shepherd takes issue with these findings, 

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

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 arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s decision. 

AFFIRMED

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