N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

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

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2023

- 1308

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

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Decided : August 1, 2024

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S EAN D. F ORBES , Neel, Hooper & Banes, P.C., Houston, TX, argued for appellant. Also represented by B RYANT S TEVEN B ANES , S ARAH P. H ARRIS

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E RICA J EUNG D ICKEY , Office of the Solicitor, U nitedStates Patent and Trademark Office, Alexandria, VA, argued for appellee Katherine K. Vidal. Also represented by C HRISTINA J. H IEBER , F ARHEENA Y ASMEEN R ASHEED

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Before C HEN , C UNNINGHAM , and S TARK , Circuit Judges

. C HEN , 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: 1 Filed: 08/01/2024IN RE : C

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as a trademark for “gabions of steel wire.” In r e 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 fille d with rocks and used in constructing dams, embankments, and other structures. The Trademark Trialand Appeal Board (Board) affirmed the examiner’s rejection of the proposed mark because it is generic or alternatively merely descriptive without an acquire d distinctiveness

. Id. at *1, 25

. C.E. Shepherd appeals the Board’s decision. W e 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 Prod s ., Ltd. , 797 F.3d 1332, 1335 (Fed. Cir. 2015)

. Substantial e vidence “ 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 ingenericness 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)

. I n 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: 08/01/2024IN RE : C

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mark. Mingshu Gabion Baskets Factory, for instanc e, 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. Decis ion
, 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

n ot 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. Shepherdchallenges only the Board’s acquired distinctiveness finding

. Acquired d istinctiveness “ occurs when, in the mindsof 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 th e customer affidavits submitted by C.E. Shepherd hadlittle 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 spen t on advertising. C.E. Shepherd takes issue with the se findings, Case: 23-1308 Document: 61 Page: 3 Filed: 08/01/2024IN RE : C

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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 reasonabl y assessed the evidence , and substantial evidence support s its conclusion.We have considered C.E. Shepherd’s remaining arguments and find them unpersuasive. For the forego ing reasons, we affirm the Board’s decision.
AFFIRMED Case: 23-1308 Document: 61 Page: 4 Filed: 08/01/2024