Concert Black LLC

Hearing: June 17, 2026 Mailed: August 18, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
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In re Concert Black LLC
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Serial No. 97921491
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Justen S. Barks and Daria Adler of the University of Houston Entertainment Law
Clinic, for Concert Black LLC.
Wade Speake, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
————
Before Pologeorgis, Thurmon, and Stanley,
Administrative Trademark Judges.
Opinion by Pologeorgis, Administrative Trademark Judge:
Concert Black LLC (“Applicant”) seeks registration on the Principal Register of
the standard-character mark CONCERT BLACK for the following goods in
International Class 25, ultimately identified as: 1
Hats, excluding formalwear, concert attire, uniforms, concert band
uniforms, marching band uniforms, robes, gowns, choir robes, tuxedos,
and any other clothing specifically designed for use in musical
performances; Shirts, excluding formalwear, concert attire, uniforms,
1 Application Serial No. 97921491 was filed on May 4, 2023, based upon Applicant’s allegation
of a bona fide intention to use the mark in commerce under Trademark Act Section 1(b), 15
U.S.C. § 1051(b). The application also identifies goods in International Class 16, but these
goods are not subject to the refusals on appeal.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 97921491
2
concert band uniforms, marching band uniforms, robes, gowns, choir
robes, tuxedos, and any other clothing specifically designed for use in
musical performances; Shirts and short-sleeved shirts, excluding
formalwear, concert attire, uniforms, concert band uniforms, marching
band uniforms, robes, gowns, choir robes, tuxedos, and any other
clothing specifically designed for use in musical performances; Baseball
caps and hats excluding formalwear, concert attire, uniforms, concert
band uniforms, marching band uniforms, robes, gowns, choir robes,
tuxedos, and any other clothing specifically designed for use in musical
performances; Bucket hats, excluding formalwear, concert attire,
uniforms, concert band uniforms, marching band uniforms, robes,
gowns, choir robes, tuxedos, and any other clothing specifically designed
for use in musical performances; Clothing, namely, shirts and pants for
street wear, excluding formalwear, concert attire, uniforms, concert
band uniforms, marching band uniforms, robes, gowns, choir robes,
tuxedos, and any other clothing specifically designed for use in musical
performances; Graphic T-shirts, excluding formalwear, concert attire,
uniforms, concert band uniforms, marching band uniforms, robes,
gowns, choir robes, tuxedos, and any other clothing specifically designed
for use in musical performances; Hooded sweat shirts, excluding
formalwear, concert attire, uniforms, concert band uniforms, marching
band uniforms, robes, gowns, choir robes, tuxedos, and any other
clothing specifically designed for use in musical performances; Long-
sleeved shirts, excluding formalwear, concert attire, uniforms, concert
band uniforms, marching band uniforms, robes, gowns, choir robes,
tuxedos, and any other clothing specifically designed for use in musical
performances; Short-sleeve shirts, excluding formalwear, concert attire,
uniforms, concert band uniforms, marching band uniforms, robes,
gowns, choir robes, tuxedos, and any other clothing specifically designed
for use in musical performances; Short-sleeved shirts, excluding
formalwear, concert attire, uniforms, concert band uniforms, marching
band uniforms, robes, gowns, choir robes, tuxedos, and any other
clothing specifically designed for use in musical performances; Short-
sleeved or long-sleeved t-shirts, excluding formalwear, concert attire,
uniforms, concert band uniforms, marching band uniforms, robes,
gowns, choir robes, tuxedos, and any other clothing specifically designed
for use in musical performances; Sports shirts with short sleeves,
excluding formalwear, concert attire, uniforms, concert band uniforms,
marching band uniforms, robes, gowns, choir robes, tuxedos, and any
other clothing specifically designed for use in musical performances;
Sports caps and hats, excluding formalwear, concert attire, uniforms,
concert band uniforms, marching band uniforms, robes, gowns, choir
robes, tuxedos, and any other clothing specifically designed for use in
musical performances; Sweat shirts, excluding formalwear, concert

Serial No. 97921491
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attire, uniforms, concert band uniforms, marching band uniforms, robes,
gowns, choir robes, tuxedos, and any other clothing specifically designed
for use in musical performances; T-shirts, excluding formalwear, concert
attire, uniforms, concert band uniforms, marching band uniforms, robes,
gowns, choir robes, tuxedos, and any other clothing specifically designed
for use in musical performances; Tee shirts, excluding formalwear,
concert attire, uniforms, concert band uniforms, marching band
uniforms, robes, gowns, choir robes, tuxedos, and any other clothing
specifically designed for use in musical performances; Tee-shirts,
excluding formalwear, concert attire, uniforms, concert band uniforms,
marching band uniforms, robes, gowns, choir robes, tuxedos, and any
other clothing specifically designed for use in musical performances;
Wearable garments and clothing, namely, shirts, excluding formalwear,
concert attire, uniforms, concert band uniforms, marching band
uniforms, robes, gowns, choir robes, tuxedos, and any other clothing
specifically designed for use in musical performances.2
The Trademark Examining Attorney refused registration of Applicant’s mark on
two grounds: (1) Applicant’s mark is merely descriptive of Applicant’s identified Class
25 goods under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1); and (2)
Applicant’s mark fails to function as a trademark as used in connection with the
identified Class 25 goods under Trademark Act Sections 1, 2, 3 and 45, 15 U.S.C.
§§ 1051-1053, and 1127.
When the refusals were made final, Applicant appealed and requested
reconsideration. When the request for reconsideration was denied, the appeal
2 We would be remiss in not opining on the unnecessary duplicative and repetitive entries in
Applicant’s Class 25 identification of goods. We note that Applicant has identified “t-shirts,”
“hats,” “long-sleeved shirts,” and “short-sleeved shirts” multiple times in its Class 25
identification of goods. Additionally, we find it unwarranted for Applicant to repeat the
limiting clause “excluding formalwear, concert attire, uniforms, concert band uniforms,
marching band uniforms, robes, gowns, choir robes, tuxedos, and any other clothing
specifically designed for use in musical performances” after each identified good in the
identification. The better practice would have been for Applicant to list all its clothing items
and then state that none of the foregoing goods include the goods identified in the limiting
clause.

Serial No. 97921491
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proceeded.3 The appeal is fully briefed. An oral hearing on this appeal was held on
June 17, 2026.
For the reasons explained below, we affirm the refusal under Section 2(e)(1) of the
Trademark Act on the ground that Applicant’s CONCERT BLACK mark is merely
descriptive of the identified Class 25 goods.
I. Preliminary Issues
The Examining Attorney objects to evidence Applicant submitted for the first time
with its initial appeal brief. Specifically, the Examining Attorney maintains that in
the last paragraph of page 17 moving into page 18 of Applicant’s appeal brief, and in
footnotes 5 and 6 on these pages, Applicant refers to a trademark application and an
article from the brand founder Virgil Abloh, both pieces of evidence being introduced
for the first time in Applicant’s appeal brief.4
It is well-settled that the record in an ex parte proceeding should be complete prior
to appeal. Trademark Rule 2.142(d); 37 C.F.R. § 2.142(d). Exhibits that are attached
to or embedded in a brief but not made of record during examination are untimely
and will not be considered. See In re Fitch IBCA, Inc., No. 75628232, 2002 WL 745593,
3 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents. Additionally, citations in
this opinion are in the form recommended in TRADEMARK TRIAL AND APPEAL BOARD MANUAL
OF PROCEDURE (TBMP) § 101.03 (2024). This opinion cites decisions of the U.S. Court of Ap-
peals for the Federal Circuit and the U.S. Court of Customs and Patent Appeals by the pages
on which they appear in the Federal Reporter (e.g., F.2d, F.3d, or F.4th). For opinions of the
Board, this opinion uses citations to the Westlaw legal database and cites only precedential
decisions, unless otherwise noted.
4 Examining Attorney Appeal Brief, p. 2, 12 TTABVUE 2.

Serial No. 97921491
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at *1 n.2 (TTAB 2002); see also TBMP §§ 1203.02(e) and 1207.01. To the extent
Applicant wished to introduce additional evidence after its appeal had been filed,
Applicant should have filed a separately captioned written request with the Board
showing good cause to suspend the appeal and remand the application for further
examination pursuant to Trademark Rule 2.142(d). Applicant did not do so.
Accordingly, the Examining Attorney’s evidentiary objection is sustained, and we give
no consideration to any evidence submitted by Applicant (or any argument based on
this evidence) with its initial appeal brief for the first time.
II. Mere Descriptiveness – Applicable Law
In the absence of acquired distinctiveness,5 Section 2(e)(1) of the Trademark Act
prohibits registration of a mark on the Principal Register that, when used in
connection with an applicant’s goods, is merely descriptive of them. 15 U.S.C.
§ 1052(e)(1). A term is merely descriptive if it immediately conveys knowledge of an
ingredient, quality, feature, function, or characteristic of the identified goods. In re
TriVita, Inc., 783 F.3d 872, 874 (Fed. Cir. 2015); see also In re Chamber of Commerce
of the U.S., 675 F.3d 1297, 1300 (Fed. Cir. 2012) (internal citation omitted).
The determination of whether a proposed mark is merely descriptive must be
made in relation to the goods for which registration is sought, not in the abstract. In
re Bayer AG, 488 F.3d 960, 964 (Fed. Cir. 2007). This requires consideration of the
context in which the putative mark is used or intended to be used in connection with
5 Applicant has not claimed acquired distinctiveness of its proposed mark under Trademark
Act Section 2(f).

Serial No. 97921491
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those goods, and the possible significance that it would have to the average purchaser
of the goods in the marketplace. Id.; see also Chamber of Commerce, 675 F.3d at 1300.
The question is not whether someone presented only with the proposed mark could
guess the goods listed in the identification, but rather whether someone who knows
what the goods are will understand the proposed mark to convey information about
them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254
(Fed. Cir. 2012) (internal citation omitted).
“A mark may be merely descriptive even if it does not describe the ‘full scope and
extent’ of the applicant’s goods or services related to the mark.” In re Oppedahl &
Larson LLP, 373 F.3d 1171, 1173 (Fed. Cir. 2004) (citing In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341 (Fed. Cir. 2001)). It is not necessary that a term
describe all the purposes, functions, characteristics, or features of a product to be
considered merely descriptive; it is enough if the term describes one significant
function, attribute, or property. Chamber of Commerce, 675 F.3d at 1300.
We must “consider the commercial impression of a mark as a whole” Real Foods
Pty Ltd. v. Frito Lay N. Am., Inc., 906 F.3d 965, 974 (Fed. Cir. 2018) (citation omitted;
emphasis in bold here in italics in the original). “In considering the mark as a whole,
[we] may not dissect the mark into isolated elements, without consider[ing] the entire
mark,” id. (internal quotation and quotation marks omitted), “but [we] may weigh the
individual components of the mark to determine the overall impression or the
descriptiveness of the mark and its various components.” Id. (internal quotation and
quotation marks omitted). Indeed, we are “required to examine the meaning of each

Serial No. 97921491
7
component individually and then determine whether the mark as a whole is merely
descriptive.” DuoProSS, 695 F.3d at 1255 (citation omitted).
Evidence that a term is merely descriptive to the relevant purchasing public “may
be obtained from any competent source, such as dictionaries, newspapers, or
surveys,” Bayer, 488 F.3d at 964, as well as “labels, packages, or in advertising
material directed to the goods.” In re Abcor Dev. Corp., 588 F.2d 811, 812 (CCPA
1978). It may also be obtained from websites and publications. In re N.C. Lottery, 866
F.3d 1363, 1367 (Fed. Cir. 2017).
A mark is suggestive, and not merely descriptive, if it requires imagination,
thought, and perception on the part of someone who knows what the goods or services
are to reach a conclusion about their nature from the mark. See, e.g., StonCor Grp.,
Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1332 (Fed. Cir. 2014); In re Fat Boys
Water Sports LLC, No. 86490930, 2016 WL 3915986, at *5 (TTAB 2016) (“A
suggestive mark requires imagination, thought and perception to reach a conclusion
as to the nature of the goods, while a merely descriptive mark forthwith conveys an
immediate idea of the ingredients, qualities or characteristics of the goods.”).
III. Analysis
While we would normally first consider the meaning of each component term of
Applicant’s proposed CONCERT BLACK mark and then determine whether the
proposed mark as a whole is merely descriptive, we find it unnecessary to do so here.
This is because the record demonstrates that the wording CONCERT BLACK is a
unitary phrase that has a distinct meaning to the relevant purchasing public. In

Serial No. 97921491
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particular, the evidence of record from websites of clothing manufacturers and
retailers, schools, and concert bands shows that the phrase CONCERT BLACK is
commonly used in association with clothing to indicate a particular style of dress
often required for musical performers. For example:6
• Tacoma Youth Symphony Association, in describing the style of dress
their musical performers must wear, states “TYSA concert dress code
is transitioning to ‘concert black’ for all performances.” and “All
TYSA students are asked to choose the components of their concert
black attire within the following guidelines: …”7
• Chamber Music International Youth Ambassadors titles an article
describing dress code for concert performers “Traditional Concert
Black Attire - To Be Kept or Changed?”8
• Black Strad titles a tutorial article for concert performers to choose
clothing as “A Step-by-Step Guide to Choosing the Perfect Concert
Black Attire.”9
• Julie Rogers Fashion advertises their clothing options as
“CONCERT BLACK CLOTHES.10
• McNeil High School Band, in describing the attire worn by their
musical performers, states “We wear what is called ‘concert black’
which is ALL black dress where everyone dresses professionally and
no one sticks out individually.”11
• Concert Black, a clothing seller, uses the phrase “Concert Black
Collection” associated with a collection of shirts and pants in a black
color marketed to musical performers.12
6 Emphasis added.
7 September 25, 2024, Final Office Action, TSDR p. 13-16.
8 Id., TSDR p. 17-21.
9 Id., TSDR p. 22-25.
10 Id., TSDR p. 26-39.
11 Id., TSDR p. 40-42.
12 Id., TSDR p. 9-12.

Serial No. 97921491
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• Tucson Concert Band, in describing the attire worn by their musical
performers, states “Concert uniform is full concert black.”13
• Screenshot of Musicians of New York City Ballet offering for sale
“CONCERT BLACK” shirts.14
• CHS Vocal Arts, in describing the attire worn by their musical
performers, states “CHS Choir students provide their own concert
attire. Singers wear a simple outfit of long, concert black.”15
• Southeastern Performance Apparel shows a section of their clothing
selections indicated as “CONCERT BLACK DRESSES.”16
• Yamaha MusiUSA titles an article about musician attire as
“CONCERT BLACK DO’S AND DON’TS.”17
• Ever Pretty titles an article about musician attire as “Concert
Black Dress Dos and Don’ts: What to Wear (and What to Avoid) for
a Flawless Performance.”18
• Lower Merion High School, in describing the attire worn by their
musical performers, states “This dress code is known as ‘Concert
Black.’”19
This evidence demonstrates that consumers of the goods identified in the
application are accustomed to seeing this wording either as used by clothing retailers,
or, in the case of musical institutions, within instructions and guidelines put forth by
such institutions for information about the clothing outfit that a musical performer
13 May 25, 2024, Non-Final Action, TSDR p. 8-10.
14 Id., TSDR pp. 24-29.
15 Id., TSDR p. 11-12.
16 Id., TSDR p. 13-23.
17 February 5, 2024, Non-Final Office Action, TSDR p. 7-12.
18 Id., TSDR p. 13-24.
19 Id., TSDR p. 25-27.

Serial No. 97921491
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must wear by purchasing clothing items that fit within certain parameters.20 Because
consumers are familiar with this phrase as used in this manner, they will take the
words at their ordinary meaning as applied to Applicant’s goods. That is, they would
perceive the wording CONCERT BLACK to immediately describe a purpose or
intended use of Applicant’s clothing items—namely, that they may be purchased and
used to create a particular outfit for musical performers known as a “CONCERT
BLACK” outfit, rather than as a source of goods from a particular entity. Thus, this
slogan or term would not be perceived as a mark that distinguishes Applicant’s goods
from those of others.
Moreover, the record contains numerous examples of entities providing their own
concept of what the standard entails. In other words, “CONCERT BLACK” does not
define a fixed uniform of specific clothing items. For example, a black shirt itself is
not a “CONCERT BLACK” ensemble, but a “CONCERT BLACK” outfit is created by
combining clothing items, such as a black shirt with a black blazer. Therefore, a black
shirt could be used as a part of a “CONCERT BLACK” outfit, or as part of a street
wear outfit, depending on the other clothing items it is paired with. Therefore, while
“CONCERT BLACK” and street wear can have different meanings, Applicant has not
established that consumers would not use Applicant’s clothing items to create a
“CONCERT BLACK” outfit.
20 During prosecution, Applicant submitted the Declaration of Dr. Brian Kai Chin, the
Director of the Moores School of Music at the University of Houston. See December 16, 2024,
Request for Reconsideration, TSDR p. 13-15. In his declaration, Dr. Chin acknowledges that
“some use Concert Black to mean the traditional tuxedo ensemble, while others, particularly
in academic contexts, interpret it to mean any all-black attire.” Id. at p. 14.

Serial No. 97921491
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In challenging the mere descriptiveness refusal, Applicant contends that its
identified goods are street wear and therefore cannot be used to create a “concert
black” outfit, particularly since Applicant has excluded formal wear from its Class 25
identification of goods.21 As such, Applicant maintains that a consumer would have
to make an imaginative leap to connect the mark to the identified goods. Moreover,
Applicant argues that (1) the phrase CONCERT BLACK is incongruous with respect
to Applicant’s goods, (2) competitors do not need to use the term, (3) the term creates
a double entendre as used by Applicant, and (4) Applicant’s mark creates a parody.22
In view of the foregoing, Applicant requests that the Section 2(e)(1) refusal be
reversed.
We are not persuaded by Applicant’s arguments. Regarding the limitation of
Applicant’s clothing items to “street wear,” Applicant has actually only limited a
single entry in their identification to street wear: “Clothing, namely, shirts and pants
for street wear, excluding formalwear, concert attire, uniforms, concert band
uniforms, marching band uniforms, robes, gowns, choir robes, tuxedos, and any other
clothing specifically designed for use in musical performances.” The other entries are
not specifically limited to street wear, e.g., T-shirts, shirts, long-sleeved shirts, and
short-sleeved shirts. As the evidence demonstrates, these clothing items can certainly
fall within the “concert black” standard even with the limitations Applicant has put
forth in its identification, because black shirts, even when not designed as
21 Applicant’s Appeal Brief, pp. 7-8, 10 TTABVUE 9-10.
22 Id. at pp. 11-17, 10 TTABVUE 10-18.

Serial No. 97921491
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“formalwear,” or not specifically designed for use in musical performances, could still
be used to create a “concert black” outfit used for musical performances. Other entries
such as “t-shirts,” may be excluded by some institutions, but allowed by others when
they are in black and matched with other clothing, such as a formal black jacket, to
create a “concert black” ensemble.
Similarly, Applicant’s exclusion of categories like formal wear and concert attire
all ultimately fail to successfully limit Applicant’s goods and obviate the refusal,
because none of these categories are definite and they have the potential to overlap.
Many clothing items that are not particularly designed to be concert attire or as
formal wear can be used to create a “concert black” ensemble, such as black socks and
black shirts. Additionally, there is evidence of record of an article detailing how to
match street wear with formal wear.23 This evidence demonstrates that street wear
and formal wear are not such different and distinct clothing items and could be worn
in combination with each other.
Even when considering the single entry limited to street wear, this limitation does
not necessarily mean that the clothing items cannot be used both as street wear and
as part of a “CONCERT BLACK” outfit. For example, the “Dolman Sleeve Shirt” sold
by Southeastern Performance Apparel, a company that features “concert black”
clothing lines, has the appearance of a t-shirt, but is marketed as “CONCERT
23 May 25, 2024, Non-Final Official Action, TSDR pp. 49-57.

Serial No. 97921491
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BLACK” attire, and could be used to create a both a street wear outfit or a
“CONCERT BLACK” outfit.24 See below:
Regarding Applicant’s argument that its mark consists of a double-entendre,
Applicant has failed to provide any compelling evidence or arguments as to why
consumers would perceive any secondary meaning of the wording CONCERT BLACK
other than as a dress code for musicians performing at a concert. The fact that
Applicant is claiming to use the phrase CONCERT BLACK outside of its traditional
context does not mean that the phrase has become a double entendre and that
consumers would understand the wording to have a dual meaning, especially here
where Applicant has failed to identify what secondary meaning is created.
24 Id., TSDR p. 20.

Serial No. 97921491
14
Applicant also argues that its mark is incongruous as applied to the identified
goods because its goods are street wear. We disagree. While it is true that a mark
comprising a combination of merely descriptive components is registrable if the
combination of terms creates a unitary mark with a nondescriptive meaning, see, e.g.,
In re Shutts, No. 73245440, 1983 WL 51780, at *2-3 (TTAB 1983) (finding SNO-RAKE
for “a snow removal hand tool having a handle with a snow-removing head at one
end, the head being of solid uninterrupted construction without prongs” suggestive);
In re Tennis in the Round Inc., No. unavailable, 1978 WL 21243, at *2-3 (TTAB 1978)
(finding TENNIS IN THE ROUND for the service of providing tennis facilities in the
form of courts evokes an immediate association with “theatre in the round” and
therefore the use of the mark in connection with applicant’s services is imaginative
and fanciful and not merely descriptive), this is not the case here. As explained above
and demonstrated by the record, the phrase CONCERT BLACK is merely descriptive
of Applicant’s identified clothing items because it immediately informs the consumer
that the clothing items identified may be purchased to create a CONCERT BLACK
outfit. Thus, we find that there is nothing incongruous or illogical about Applicant’s
mark when viewed in relation to Applicant’s identified clothing items.
We similarly find Applicant’s argument that competitors do not need to use the
wording CONCERT BLACK unavailing. Competitors in the clothing field that sell
the same items as Applicant, i.e., shirts, T-shirts, short-sleeved shirts, and long-
sleeved shirts, may have a need to use the wording CONCERT BLACK descriptively

Serial No. 97921491
15
in their advertising and marketing materials.25 Permitting Applicant’s mark to
register would clearly impair these competitors from using the phrase CONCERT
BLACK in a descriptive manner. See In re Styleclick.com Inc., No. 75459912, 2001
WL 245735, at *5 (TTAB 2001) (“The intent of Section 2(e)(1) is to protect the
competitive needs of others ...”).
Finally, in its April 26, 2024 response to a Non-Final Office Action, Applicant
contends that its mark contains parodic elements.26 Applicant’s argument is not
persuasive because Applicant’s identification can still encompass items that can
create a “concert black” outfit as shown above, and therefore the wording is still only
serving one generally understood meaning, rather than showing a contradictory or
satirical message.
IV.Conclusion
Viewed in its entirety, in the context of the identified goods and the record before
us, we find that CONCERT BLACK is merely descriptive of Applicant’s identified
Class 25 clothing items.
Decision: The refusal to register Applicant’s CONCERT BLACK mark for the
goods identified in International Class 25 based on mere descriptiveness under
Section 2(e)(1) of the Trademark Act is affirmed. Because we affirm the refusal under
25 The record includes evidence of third parties using the phrase “CONCERT BLACK”
descriptively in their advertising and marketing materials. See, e.g., Julie Rogers Fashion
advertises their clothing options as “CONCERT BLACK CLOTHES. See September 25, 2024,
Final Office Action, TSDR p. 26-39; Concert Black, a clothing seller, uses the phrase “Concert
Black Collection” associated with a collection of shirts and pants in a black color marketed to
musical performers. Id., TSDR pp. 9-12.
26 April 26, 2024, Response to Non-Final Office Action, TSDR pp. 16-18.

Serial No. 97921491
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Section 2(e)(1), we need not address the failure to function refusal. In re Suuberg, No.
88234650, 2021 WL 5944419, at *5 (TTAB 2021) (Board can affirm refusal on one
ground and decline to reach other grounds). The application will proceed solely in
connection with the goods identified in International Class 16.