International Flavors & Fragrances Inc. (“IFF”) appeals from a decision of the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (“the Board”) affirming the final rejections of three trademark applications, Application Serial Nos. 74/532,528, 74/532,529, and 74/591,331, each seeking to register a “phantom” trademark. 1 See In re International Flavors & Fragrances Inc., 47 USPQ2d 1314 (TTAB May 19, 1998). Because we find that the Board did not err in refusing to register the marks described in IFF’s applications, we affirm.
BACKGROUND
Appellant IFF is a New York corporation engaged in the business of producing and marketing flavor and fragrance essences. In 1994, IFF sought to register with the U.S. Patent and Trademark Office (“the PTO”) “LIVING XXXX FLAVORS” and “LIVING XXXX FLAVOR” 2 as trademarks for the following goods:
essential oils for use in the manufacture of flavored foodstuffs, smoking tobacco compositions, smoking tobacco articles, chewing tobacco compositions, chewing gums, oral care products and beverages in International Class 3; and non-synthetic and synthetic flavor substances for use in the manufacture of flavored foodstuffs, smoking tobacco compositions, chewing tobacco compositions, *1364 smoking tobacco articles, chewing gums, oral care products and beverages in International Class 30.
In both applications, the “XXXX” served to denote “a specific herb, fruit, plant or vegetable.” The ’528 application included a specimen showing the use of the mark “LIVING GREEN BELL PEPPER FLAVORS” and the ’529 application included two specimens showing the use of the marks “LIVING STRAWBERRY FLAVOR” and “LIVING CILANTRO FLAVOR.”
Later in 1994, IFF filed Application Serial No. 74/591,331 (“the ’331 application”) seeking to register “LIVING XXXX” for use in connection with
non-synthetic and synthetic flavor substances for use in the manufacture of colognes, cosmetics, hair preparations, toiletries, detergents, fabric softeners, odorants, deodorants, bleaches, brighteners and air fresheners, in Class 1; and essential oils for use in the manufacture of colognes, cosmetics, toiletries, hair preparations, detergents, fabric softeners, odorants, deodorants, bleaches, brighteners and air fresheners in Class 3.
The “XXXX” placeholder indicated “a botanical or extract thereof, to wit: ‘flower’, ‘fruit’, ‘yellow sunset orchid’, ‘osmanthus’, ‘fragrance’, ‘raspberry’ and the like.” The application included the following specimens: “LIVING FLOWERS,” “LIVING MINT,” “LIVING FRAGRANCE,” “LIVING FRUIT,” “LIVING OSMANTHUS,” and “LIVING RASPBERRY.”
The trademark examining attorney rejected registration of the marks because the specimens did not match the marks depicted in the specimens, i.e., the specimens did not have an “XXXX” element. IFF then entered disclaimers for the terms “FLAVOR” and “FLAVORS” 3 and amended the applications to add that “the ‘XXXX’ designations are themselves not part of the mark.” IFF offered to replace the “XXXX” designation with broken lines, the PTO’s preferred method for indicating a missing element in a trademark registration under 37 C.F.R. § 2.51(d) (1998). The examining attorney issued a final rejection denying the registration and IFF appealed to the Board.
In its opinion, the Board stated that under
In re ECCS, Inc.,
to the extent that any mark sought to be registered has an omitted word or other element, conducting a complete and thorough search is extremely difficult. ... A comprehensive search for all or even most permutations of applicant’s marks is next to impossible. Applicant’s definition of the phantom elements in these cases is extremely broad and may include any herb, fruit, plant or vegetable, in addition to other descriptive adjectives.
Id. at 1317-18. The Board concluded that anyone conducting a search of IFF’s phan *1365 tom mark would be unable to determine the entire scope covered by such marks and would be unable to ascertain the designation used to identify and distinguish the goods covered by the mark. See id. It also noted that no uniform PTO policy or guideline permitted the registration of “phantom” marks. See id. at 1317. The Board affirmed the examining attorney’s final rejection of all three registration applications. See id. at 1318. Now before us is IFF’s appeal of the Board’s decision affirming the final rejection of the three applications for the “phantom” marks.
DISCUSSION
A. Standard of Review
We review the Board’s legal conclusions, such as its interpretation of the Lanham Act, 15 U.S.C. § 1051,
et seq., de novo.
We uphold the Board’s factual findings unless they are arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence.
See Dickinson v. Zurko,
— U.S. -,
B. Arguments Concerning Register-ability of “Phantom” Marks
This is a case of first impression. IFF argues that it has a property interest in the marks at issue and that the PTO’s refusal to register IFF’s marks deprives IFF of property without due process in violation of the Fifth Amendment. IFF further argues that the PTO has granted registration to “phantom” marks in the past and continues to grant registration to such marks, and that the PTO has no statutory or regulatory basis for granting or denying “phantom” marks; therefore, the Board’s decision to affirm the examining attorney’s final rejection denies IFF equal protection under the laws as provided by the Fifth Amendment.
The Commissioner of Patents and Trademarks (“the Commissioner”) argues that IFF seeks to obtain registration of an unlimited number of marks in the applications at issue; however, under the Lanham Act, a trademark application may obtain registration of only a single mark in any one application. The Commissioner also notes that IFF’s applications are for use-based marks but the applications are written in sufficiently broad terms such that not all of the potential variations of the marks covered by the “phantom” elements are in use. The Commissioner further argues that if the marks depicted in the three applications were granted registration, the public would not have adequate notice of all marks encompassed within IFF’s applications and that the Board correctly determined that the missing “phantom” elements are so broad that it would be impossible to determine all the combinations and permutations of the marks. Finally, the Commissioner asserts that IFF was not denied due process or equal protection because IFF’s applications received complete examination in accordance with PTO procedures and IFF had the opportunity to respond to all PTO actions. The Commissioner argues that prior decisions of examining attorneys do not establish PTO policy and are not binding on the Board or on this court. 4 Each application *1366 is considered on its own merits, and absent any PTO policy concerning “phantom” marks, IFF cannot demonstrate that the Board discriminated against it.
C. Analysis
We agree with the Commissioner that under the Lanham Act and the rules promulgated thereunder, a trademark application may only seek to register a
single
mark.
See, e.g.,
15 U.S.C. § 1051 (1994) (“The owner of
a trademark ...
may apply to register his or her
trademark
under this chapter on the principal register established: ... (3) By complying with such rules or regulations, not inconsistent with law, as may be prescribed by the Commissioner.”) (emphasis added). The language of the relevant regulations also contemplate that an application may seek to register only a single mark.
See, e.g.,
37 C.F.R. § 2.51(a)(1) (1998) (“In an application under section 1(a) of the [Lanham] Act, the drawing of
the trademark
shall be a substantially exact representation of
the mark
as used on or in connection with the goods ....”) (emphasis added). Furthermore, the PTO’s own trademark prosecution guidelines make clear that “[t]here may not be more than one mark on a drawing, since an application
must he limited to one mark.”
U.S. Patent and Trademark Office, Trademark Manual of Examining Procedure § 807 (2d ed.1993 rev. 1.1 Aug. 1997) (emphasis added). Although the Manual does not have the force of law, it “sets forth the guidelines and procedures followed by the examining attorneys at the PTO.”
West Fla. Seafood, Inc. v. Jet Restaurants, Inc.,
As important as what is implied in the language of the Lanham Act and the corresponding regulations is the clear policy behind federal registration of trademarks. The federal registration of a trademark does not create an exclusive property right in the mark. The owner of the mark already has the property right established by prior use. The mark identifies and distinguishes the owner’s goods from others. It also signifies the source and quality of the goods. These attributes are not established or granted by federal registration of the mark.
5
The owner of a trademark need not register his or her mark in accordance with the Lanham Act in order to use the mark in connection with goods or to seek to prevent others from using the mark.
See In re Beatrice Foods Co.,
[Registration of a trademark, in addition to serving the interests of the registrant by providing constructive notice, serves the interests of other participants in the market place. Entrepreneurs, for example, who plan to promote and to sell a new product under a fanciful mark, should be able to rely on a search of the trademark registry and their own knowledge of whether the mark has been used so that what may be substantial expenditures of money promoting the mark will not be wasted. Consumers are also benefitted by the registration of national trademarks, because such registration helps to prevent confusion about the source of products sold under a trademark and to instill in consumers the confidence that inferior goods are not being passed off by use of a familiar trademark. In short, therefore, the benefits of prior ■ registration under the Lanham Act are justified in light of the order such registration brings to the market place.
Natural Footwear Ltd. v. Hart, Schaffner & Marx,
[t]he primary purpose of the Trademark Act of 1946 is to give Federal procedural augmentation to the common law rights of trademark owners - which is to say legitimate users of trademarks. One of the policies sought to be implemented by the Act was to encourage the presence on the register of trademarks of as many as possible of the marks in actual use so that they are available for search purposes.
Bongrain Int’l Corp. v. Delice de France, Inc.,
It is well established, as noted above, that the purpose of a trademark is to distinguish goods and to identify the source of goods.
See
15 U.S.C. § 1127 (a trademark is “any word, name symbol, or device ... used by a person ... to identify and distinguish his or her goods ... from those manufactured or sold by others and to indicate the source of the goods”);
BellSouth Corp. v. DataNational Corp.,
In order to make this constructive notice meaningful, the mark, as registered, must accurately reflect the way it is used in commerce so that someone who searches the registry for the mark, or a similar mark, will locate the registered mark. “Phantom” marks with missing elements, especially those sought to be registered by IFF, encompass too many combinations and permutations to make a thorough and effective search possible. 6 The registration of such marks does not provide proper notice to other trademark users, thus failing to help bring order to the marketplace and defeating one of the vital purposes of federal trademark registration.
Finally, we agree with the Commissioner that IFF has not been denied due process or equal protection. IFF was provided a full opportunity to prosecute its applications and to appeal the examining attorney’s final rejections to the Board. The Board fully considered IFF’s arguments and affirmed the rejection in a detailed written decision setting forth the reasons for the rejection. More importantly, IFF has not demonstrated that it has a constitutionally protected property interest in obtaining federal registration of its “phantom” marks. There is no constitutionally protected right to federal regis-tation of any mark. IFF may still use the marks to identify its goods and IFF still retains all common law rights associated with trademark use and ownership. Furthermore, IFF was not denied equal protection. Each application for trademark registration must be considered on its own merits.
See In re Loew’s Theatres, Inc.
CONCLUSION
Because we hold that under the Lanham Act, a trademark registrant may seek to register only a single mark in a registration application, and trademark applications seeking to register “phantom” marks violate the one mark per registration requirement, the decision of the Board is
AFFIRMED.
COSTS
Each party to bear its own costs.
Notes
. A "phantom” trademark is one in which an integral portion of the mark is generally represented by a blank or dashed line acting as a placeholder for a generic term or symbol that changes, depending on the use of the mark.
. Application Serial Nos. 74/532,528 ("the '528 application”) and 74/532,529 ("the '529 application”), respectively.
. In its amendment to the '528 application, IFF stated that "[n]o claim is made to the exclusive right to use FLAVORS apart from the mark as shown.”
. When asked at oral argument if there should be a PTO policy prohibiting the regis *1366 tration of “phantom” marks, the solicitor arguing on behalf of the Commissioner stated that there should be such a policy.
. A trademark owner could, in the alternative, seek to register his or her mark pursuant to various state laws which provide other legal protections.
. As an example set forth by the Commissioner in his brief, suppose IFF begins using LIVING SPICE FLAVOR. However, since IFF seeks only to register LIVING XXXX FLAVOR, it is very possible that a potential trademark holder wanting to use LIVELY SPICE would not locate IFF’s registration while doing a trademark search and therefore would not be on notice that LIVELY SPICE might infringe IFF's mark. The analysis of any likelihood of confusion between these two marks must take into account all elements of the mark.
See In re Shell Oil Co.,