in Re: C.e. Shepherd Company, L.p v. NLRB, 305 U.S. 197, 229 1938 . Substantial evidence supports the Board’s conclusion…

N OTE: This disposition is nonprecedential.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. F ORBES , Neel, Hooper & Banes, P.C., Houston,
TX, argued for appellant. Also represented by BRYANT
STEVEN BANES , SARAH P. HARRIS .
ERICA J EUNG D ICKEY , Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, ar-
gued for appellee Katherine K. Vidal. Also represented by
CHRISTINA J. HIEBER, F ARHEENA Y ASMEEN 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”
Case: 23-1308 Document: 61 Page: 1 Filed: 08/01/2024

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IN RE: C. E. SHEPHERD COMPANY , L. P. 2
as a trademark for “gabions of steel wire.” In re C.E. Shep-
herd 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, em-
bankments, and other structures. The Trademark Trial
and Appeal Board (Board) affirmed the examiner’s rejec-
tion of the proposed mark because it is generic or alterna-
tively 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 ac-
quired 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). Sub-
stantial evidence “means such relevant evidence as a rea-
sonable 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 pub-
lic primarily use or understand the term sought to be pro-
tected 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 de-
scribe a type of product, not a source. For example, C.E.
Shepherd’s website provided that “Modular Gabion Sys-
tems are engineered welded wire mesh products for earth
retention and soil stabilization, erosion control and flood
control, and landscape and architectural applications.” De-
cision, 2022 WL 16757662, at *9; J.A. 99. In addition, the
Board catalogued how third parties used the proposed
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IN RE: C. E. SHEPHERD COMPANY , L. P. 3
mark. Mingshu Gabion Baskets Factory, for instance, dis-
cussed on its website how it “suppl[ies] modular gabion sys-
tem[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 con-
cluded that the relevant public used the proposed mark ge-
nerically. 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 di-
rected to the United States market. See In re Bayer AG,
488 F.3d 960, 966, 969 (Fed. Cir. 2007) (explaining poten-
tial relevance of foreign internet evidence).
Substantial evidence also supports the Board’s alterna-
tive conclusion that the proposed mark is merely descrip-
tive and has not acquired distinctiveness. C.E. Shepherd
challenges only the Board’s acquired distinctiveness find-
ing. Acquired distinctiveness “occurs when, in the minds
of the public, the primary significance of a mark is to iden-
tify the source of the product rather than the product it-
self.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S.
205, 211 (2000) (cleaned up). As the applicant, C.E. Shep-
herd “bears the burden of proving acquired distinctive-
ness.” 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 neces-
sarily 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 evi-
dence about what C.E. Shepherd’s competitors spent on ad-
vertising. C.E. Shepherd takes issue with these findings,
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IN RE: C. E. SHEPHERD COMPANY , L. P. 4
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 argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s decision.
AFFIRMED
Case: 23-1308 Document: 61 Page: 4 Filed: 08/01/2024

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