Lidia Glebouna Haiber

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: November 24, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Lidia Glebouna Haiber
_____
Serial No. 98248089
_____
David B. Pieper of Keisling & Pieper PLC,
for Lidia Glebouna Haiber.
Sherif Farrag, Trademark Examining Attorney, Law Office 116,
Elizabeth Jackson, Managing Attorney.
_____
Before Larkin, Elgin, and Lavache,
Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Lidia Glebouna Haiber (“Applicant”) seeks registration on the Principal Register
of the proposed mark BLUE BANANA in standard characters for “Fresh
honeyberries; live plants, namely, honeyberry plants” in International Class 31.1
1 Application Serial No. 98248089 was filed on October 31, 2023 based on Applicant’s claimed
bona fide intent to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b). On February 7, 2024, Applicant filed an amendment to allege use claiming dates
of first use anywhere and in commerce of January 1, 2024 under Trademark Act Section 1(a),
15 U.S.C. § 1051(a).

Serial No. 98248089
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The Trademark Examining Attorney issued a Final Refusal of registration of
Applicant’s proposed mark on the ground that it comprises a varietal name for the
identified goods and, thus, does not function as a trademark to indicate the source of
the goods and to identify and distinguish them from others. See Trademark Act
Sections 1, 2, and 45, 15 U.S.C. §§ 1051, 1052, 1127.
Applicant and the Examining Attorney filed briefs.2 For the reasons explained
below, we affirm the refusal to register.
I. Prosecution History and Record on Appeal
We briefly summarize below the prosecution history of the application because it
provides necessary background to our disposition of the appeal. As noted above,
Applicant sought registration of the proposed mark under Section 1(b) of the
Trademark Act, claiming bona fide intent to use the mark in commerce. Before the
application was assigned to the examining attorney, Applicant filed an amendment
to allege use supported by the specimens shown below:3
2 Applicant’s Brief is at 6 TTABVUE. The Trademark Examining Attorney’s Brief is at
8 TTABVUE. Applicant did not file a Reply brief.
Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. Citations to the prosecution record refer to
the .pdf versions of documents in the USPTO’s Trademark Search & Document Retrieval
(“TSDR”) system.
3 Feb. 7, 2024 Specimen.

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After reviewing the results of a search regarding whether Blue Banana is a
varietal name of the goods,4 the Examining Attorney issued an Office Action refusing
registration of the applied-for mark on the ground that the proposed mark failed to
function as a mark for the goods because Blue Banana is a varietal name for those
goods.5 The Examining Attorney made of record pages from third-party websites,6
which the Examining Attorney claimed shows use of Blue Banana as a varietal name
for the goods. The Examining Attorney also requested the following information from
Applicant:
(1) Whether BLUE BANANA has ever been used or will be
used as a varietal or cultivar name; and
4 Dec. 31, 2023 Public Note; June 28, 2024 Public Note.
5 July 1, 2024 Office Action, at TSDR 2.
6 Id. at TSDR 5-43.

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(2) Whether BLUE BANANA has ever been used or will be
used in connection with a plant patent, utility patent, or
certificate for plant-variety protection. If so and such
information is available, provide the patent application
number, patent number, and/or the number for the plant-
variety protection application, as appropriate.7
In response, Applicant entered a “Miscellaneous Statement” that: “BLUE
BANANA is 1) not a varietal name or a cultivar name; and 2) is not being used in
association with any plant patent, utility patent, or certificate for plan-variety [sic]
protection.”8 Applicant did not submit any evidence or argument obviating the
refusal, but did request a telephone conference with the Examining Attorney if
further information was needed.9
The Examining Attorney issued an Office Action making final the failure-to-
function refusal, noting that Applicant’s miscellaneous statement was not sufficient
to overcome the refusal.10 A public note in the file indicates that the Examining
Attorney discussed the refusal with Applicant’s attorney by phone.11
Applicant appealed and simultaneously requested reconsideration. In its Request
for Reconsideration, Applicant argued for the first time that Blue Banana functions
as a mark because it is different from the plant varietal name “Haskap,” which is one
of nine varieties of honeyberry plants and is on its label per USDA regulations.12
7 Id. at TSDR 3.
8 Sept. 30, 2024 Response to Office Action, at TSDR 1, 2.
9 Id.
10 Nov. 5, 2024 Final Office Action.
11 Nov. 14, 2024 Public Note.
12 Feb. 5. 2025 Request for Reconsideration, at TSDR 4-5, 6.

Serial No. 98248089
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Applicant also argued that the fact that the Office library research results did not
reveal relevant results supported registration.13 Applicant did not submit any
evidence in support of its arguments.
In denying the Request for Reconsideration, the Examining Attorney made of
record additional website results to show that consumers perceive Blue Banana as a
varietal plant name.
The appeal was resumed and is now ready for decision.
II. Background and Applicable Law
As an initial matter, we provide a brief discussion of the nomenclature at issue to
better understand the arguments and evidence. A “subspecies” is “a category in
biological classification that ranks immediately below a species and designates a
population of a particular geographic region genetically distinguishable from other
such populations of the same species and capable of interbreeding successfully with
them where its range overlaps theirs.”14 A “variety” is a “taxonomic category that
ranks below subspecies (where present) or species, its members differing from others
of the same subspecies or species in minor but permanent or heritable characteristics.
13 Id. at 5-6.
14 MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com, accessed Nov. 24, 2025). The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed format. In re Cordua Rests. LP, No. 85214191, 2014 TTAB LEXIS 94, at *6
n.4; see also B.V.D. Licensing Corp. v. Body Action Design Inc., 846 F.2d 727, 728 (Fed. Cir.
1988) (“dictionaries and encyclopedias may be consulted”).

Serial No. 98248089
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Varieties are more often recognized in botany….”15 A “cultivar” is “a plant variety
that has been produced in cultivation by selective breeding.”16
The USPTO has “a long-standing precedent and practice of treating plant varietal
names as generic.” In re Int’l Fruit Genetics, LLC, No. 88711192, 2022 TTAB LEXIS
403, at *17 (quoting In re Pennington Seed Co., 466 F.3d 1053, 1055 (Fed. Cir.
2006)).17 “Varietal or cultivar names are designations given to cultivated varieties or
subspecies of live plants or agricultural seeds. They amount to the generic name of
the plant or seed by which such variety is known to the U.S. consumer.” Id. (citing
TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1202.12 (July 2022)).18
Varietal and cultivar names are unprotectable as trademarks because a consumer
“has to have some common descriptive name [the consumer] can use to indicate that
[the consumer] wants one particular variety of apple tree, rose, or whatever, as
opposed to another, and it is the varietal name of the strain which naturally and
commonly serves this purpose.” Pennington Seed, 466 F.3d at 1057 (quoting In re
Hilltop Orchards & Nurseries, Inc., 1979 TTAB LEXIS 148, at *5-6).19 Thus, even if
the name originally was arbitrary, it “describe[s] to the public a [plant] of a particular
15 NEW OXFORD AM. DICTIONARY (www.oxfordreference.com, accessed Nov. 24, 2025).
16 Id.
17 The Int’l Fruit Genetics decision contains a thorough discussion regarding the international
and domestic legal framework for the protection of plant varietal names. Int’l Fruit
Genetics, 2022 TTAB LEXIS 403, at *6-16.
18 The language in the current version of the TMEP (Nov. 2025) is the same as the version
quoted by the Board in the 2022 Int’l Fruit Genetics decision.
19 The terms “varietal” and “cultivar” may have slight semantic differences but pose
indistinguishable issues; the Office treats them identically for trademark purposes. TMEP
§ 1202.12.

Serial No. 98248089
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sort, not a [plant] from a particular [source].” Dixie Rose Nursery v. Coe, 131 F.2d 446,
447 (D.C. Cir. 1942), cited in TMEP § 1202.12.
A determination that a proposed mark is a generic varietal or cultivar name may
be based on “a variety of sources.” Pennington Seed, 466 F.3d at 1058. The Examining
Attorney bears the burden of proving that Applicant’s mark is not entitled to
registration because it is the varietal name of the goods and is thus generic. In re
Uman Diagnostics AB, No. 88960633, 2023 TTAB LEXIS 77, at *36.
III. Evidence of Record
As noted above, the Examining Attorney made of record evidence from ten
webpages using the term Blue Banana as a varietal or cultivar name.20 These include:
A. Berries Unlimited
BerriesUnlimited.com (Berries Unlimited) advertises the “Blue Banana
Honeyberry Haskap” as a “Tissue Cultured plant,” and encourages consumers to “Buy
from Berries Unlimited to be sure that you get the real Blue Banana variety you are
looking for!”21 This webpage also displays “BLUE BANANA TM” and “TRADEMARK:
20 We note that, to the extent that certain of these websites (i.e., Vegetolab, AgriForest,
Prairie Gardens, and Nutcracker Nursery) appear to be from foreign English-language
sources, they nonetheless may be relevant in determining if Blue Banana is generic. Cf. In re
Well Living Lab Inc., No. 86440401, 2017 TTAB LEXIS 156, at *12 n.10 (quoting In re Bayer
Aktiengesellschaft, 488 F.3d 960, 969 (Fed. Cir. 2007) (“Information originating on foreign
websites or in foreign news publications that are accessible to the United States public may
be relevant to discern United States consumer impression of a proposed mark.”)). Applicant
did not object to the Examining Attorney’s reliance on these websites or to our consideration
of them.
21 July 1, 2024 Office Action, at TSDR 6.

Serial No. 98248089
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UNITED STATES”.22 A picture of the product on the website is shown below,
described as “LARGE, PROLONGED” fruit that is “SWEET, DELICIOUS”:23
B. Honeyberry USA
HoneyBerryUSA.com (Honeyberry USA) provides a “Honeyberry/Haskap Bloom
Chart.”24 On the left side, it states:
Note that all plants on this page are of the
species Lonicera caerulea L. whether they go by the
name haskap, honeyberry, or Yezberry®. In general,
“honeyberry” refers to subspecies such as edulis of Russian
origin, “haskap” to subspecies with some emphyllocalyx /
Japanese origin, and Yezberry® of pure emphyllocalyx /
Japanese origin. It matters not so much what they are
22 Id. at TSDR 6.
23 Id. at TSDR 5, 6.
24 Id. at TSDR 9-14.

Serial No. 98248089
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called, but matching the bloom times is critical, as most
varieties need a companion for pollination.25
“Blue BananaTM” is listed under the title “Berries Unlimited” and is described as
“Sweet, great for fresh eating as well as processing” with “Large, prolonged oblong”
shaped fruit that is “[g]reat for fresh eating, high yield,” but “susceptible to wind
dropping berries.”26 The Honeyberry USA site also lists “Blue BananaTM” as an
“Early/Mid-season bloomer” bred by “Lidia Delafield, Berries Unlimited.”27 Other
entries listed under Berries Unlimited, such as “Strawberry SensationTM” include this
statement: “This selection comes to us highly recommended from one of our
commercial growers who has many varieties and Strawberry SensationTM ranks near
the top in his opinion as well as his customers’ for its ‘superb’ flavor.”
Under “plants for sale,” the site explains: “We have a trial orchard with over 50
named varieties and while most of them have good tasting berries, we have selected
our favorites to offer to you.”28 Further, the page states that “[s]ome varieties grow
faster and taller than others, typically from 1’-2’ a year,” while as to pollination,
“Order at least one companion variety for every 3-5 other honeyberry plants for
adequate pollination.”29 The page lists Blue Banana as a “pollenizer” for a number of
other plants (such as Honey Bee Honeyberry and Tundra Honeyberry).30
25 Id. at TSDR 9-10 (bold text in original).
26 Id. at TSDR 10, 22-23.
27 Id. at 22.
28 Id. at TSDR 18.
29 Id. at TSDR 19.
30 Id. at TSDR 16, 17.

Serial No. 98248089
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C. One Green World
OneGreenWorld.com (One Green World) describes the Blue Banana Honeyberry
as “[a] brand new honeyberry introduction, hailing from Berries Unlimited’s
illustrious collection, it’s one of the sweetest varieties of honeyberry we’ve ever tasted!
Named for its elongated shape and delicious texture, Blue Banana will become a
staple for home gardeners who are looking for a honeyberry with large, sweet,
delicious fruit right off the bush.”31 The site also lists the Blue Banana plant as a
“Pollinizer for: Borealis and most other varieties.”32
D. Stark Bros.
StarkBros.com (Stark Bros.) offers the “Blue Banana Honeyberry Plant,” which is
“becoming a staple for home gardeners looking for a honeyberry with large, sweet,
delicious fruit right off the bush. Blue Banana plant is a Russian variety of
honeyberry plants in the Blue Moose family. The big berries are juicy and sweet with
great flavor – very refreshing.”33 The website provides that Blue Banana’s zone range
is “2-8,” according to the “USDA hardiness zones … guide to varieties that will grow
well in certain climates.”34 The website also explains that “[t]his variety requires
another one for adequate pollination” because “[c]ross-pollination by a different
variety is key to its growing and bearing success,” listing other varieties that work
31 Id. at TSDR 25, 26.
32 Id. at TSDR 26.
33 Id. at TSDR 28.
34 Id. at TSDR 29.

Serial No. 98248089
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with the Blue Banana plant.35 In addition, recommended tools and supplies are listed
“for this variety.”36
E. Cultivar
Cultivar.guide (Cultivar) lists a number of honeyberry plants in what appears to
be a guide. This includes Blue Banana, with its blooming and ripening seasons,
growth potential, and other information such as characteristics of its fruit as “sweet-
tart/sweet?”37 Other plants included on this same list are described as “varieties,”
such as Aurora (“by far, the sweetest and most liked out of the older honeyberry
varieties available in North America”); Indigo Gem (“Indigo Gem and Indigo Treat
are better than the older varieties, but they are known for not being as good as some
of the newer ones”); Sunrise (“Furthermore, it consistently ranked among the top for
flavor, but it was not compared to any of the best honeyberry varieties, such as
Aurora, so you should take this with a grain of salt”); and Cinderella (“Cinderella
appears to be better in quality than most varieties….”).38
F. Vegetolab Fruit Plant Wholesaler
VegetoLab.com (Vegetolab Fruit Plant Wholesaler) provides “Blue Banana –
Haskap,” also listed as “Haskap Blue Banana (Lonicera caerulea”), describing it as
follows:
Its large berries are juicy and sweet with an excellent
smoked strawberry flavor. This variety is part of the Blue
35 Id. at TSDR 30.
36 Id.
37 Id. at TSDR 41.
38 Id. at TSDR 35, 37, 38, 41 (emphasis in original omitted).

Serial No. 98248089
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Moose family. one of the sweetest berry varieties (at this
hybridizer) and ideal for fresh, frozen and mixed fruit. It
can produce 8 to 10 pounds of fruit per bush after 4 to 5
years of growth (these yields have yet to be validated).
It is a mid-season variety that lends itself well to
mechanized harvesting. This variety was developed by
Lidia Stuart, living in the far eastern part of Russia. It is
considered by many to be the origin of the commercial
cherry tree. Mrs. Stuart used varieties from Russia and
Japan to develop her cultivars.39
The site lists “compatible varieties” such as Aurora – Haskap.40
G. AgriForest Bio Technologies Ltd.
AgriForestBioTech.com (AgriForest Bio-Technologies Ltd.) lists a “category” titled
“Berries Unlimited Varieties (Breeder Lidia R. Delafield Stuart), with “big berries
[that] are Juicy and sweet with great flavour – very refershlng [sic]. One of the best
tasting berries of the BU stable. This variety is is [sic] a member of the Blue Moose
family.”41 It also specifies “Needed Pollinator” as “Any other unrelated Honeyberry
cultivar blooming at a similar time – Happy Giant and Blue Palm” and “Shape: Like
a mini blue banana.”42
H. Prairie Gardens
PrairieGardens.org (Prairie Gardens) is a plant nursery that sells the “Blue
Banana Haskap Berry,” described as:
Developed by Lidia Stuart of Berries: Unlimited, Blue
Banana is known for its large berries with a ‘smoked-
39 April 23, 2025 Denial of Request for Reconsideration, at TSDR 6.
40 Id.
41 Id. at TSDR 9.
42 Id.

Serial No. 98248089
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strawberry’ flavour. Blue Banana is also much sweeter
than most other haskap varieties, which make the berries
excellent for fresh eating, in addition to making jams,
sauces, juices, and other preserves.
Blue Banana is a mid-blooming variety that is typically
ready mid-late June for harvest. Mature size is 8-9’ tall by
6-8’ wide.
Cross-pollinate with: Honey Gin, Happy Giant, or Boreal
Beast.43
I. Beautiful Field Farm
BeautifulFieldFarm.com (Beautiful Field Farm) offers plants for sale, including
“Haskap – Blue Banana” described as: “The big berries 3.0cm, are juicy and sweet
with great flavour – very refreshing [sic]. One of the best tasting berries recently
released by Berries Unlimited.”44 The pollinators for the plant are listed as “[a]ny
other unrelated Honeyberry cultivar blooming at a similar time – Happy Giant.”45
J. Nutcracker Nursery and Tree Farm
NutcrackerNursery.com (Nutcracker Nursery and Tree Farm) sells “Blue Banana
Haskap” plants:
Blue Banana cultivar from the Blue Moose family,
produces large fruits 3 cm long, juicy and sweet with a
smoked strawberry taste. It can produce 8 to 10 pounds of
fruit per bush after 4 to 5 years of growth. It is a mid-season
variety that lends itself well to mechanized harvesting.
Compatible strain: Aurora, Wojtek / Larisa.46
43 Id. at TSDR 17.
44 Id. at TSDR 19.
45 Id.
46 Id. at 22-23.

Serial No. 98248089
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K. Applicant’s “Evidence”
Applicant did not submit any evidence during prosecution. However, in her brief
Applicant referenced (without evidence) ten applications she claims to own,
describing them as suspended pending this appeal, and one for the mark HONEY
BEAST which she claimed has registered.47 Evidence submitted after prosecution is
untimely and is not considered, Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d) (“The
record in the application should be complete prior to the filing of an appeal.”), and
attorney argument is not evidence. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371
(Fed. Cir. 2018). Thus, we give the listing of applications and registration in
Applicant’s brief no consideration.48
IV. Analysis
The evidence discussed above demonstrates that third parties use “Blue Banana”
to identify a honeyberry or haskap variety or cultivar, and list it as a pollinator along
with other varietal or cultivar names. This is strong evidence that Blue Banana is a
variety or cultivar of “Fresh honeyberries; live plants, namely, honeyberry plants.”
We turn to Applicant’s arguments to the contrary.
47 6 TTABVUE 6-7 (HONEY CHAMPION, GIANT’S HEART, BLUE MOOSE, BLUE
DIAMOND, HONEY JOY, HAPPY GIANT, BLUE PALM, HONEY GLEN, STRAWBERRY
SENSATION, BLUE TREASURE).
48 “The proper procedure for an applicant or examining attorney to introduce evidence after
an appeal has been filed is to submit a written request with the Board to suspend the appeal
and remand the application for further examination.” In re Weiss, No. 88621608, 2024 TTAB
LEXIS 277, at *1 (citing Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d)).

Serial No. 98248089
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A. No Conflicting Marks
Applicant argued that “no conflicting marks were found to exist at the time of
filing” based on the Examiner’s search.49 The search of potentially conflicting marks
for a likelihood of confusion refusal under Section 2(d), however, is not relevant to the
current basis for refusal under Sections 1, 2, and 45.
B. Previously Established Varietal Name
Applicant also argued that “a varietal name was previously established for the
plant and recognized in the appropriate databases,” and thus an applicant may have
a varietal name and a separate trademark used as a source identifier.50 Applicant
argued that the proper varietal name is “haskap.”51
The materials made of record by the Examining Attorney contradict Applicant’s
argument that the proper varietal name is “haskap,” not “Blue Banana.” The
materials of record indicate that the term “haskap” is another name for a honeyberry
plant. As stated on the Honeyberry USA website:
Note that all plants on this page are of the
species Lonicera caerulea L. whether they go by the
name haskap, honeyberry, or Yezberry®. In general,
“honeyberry” refers to subspecies such as edulis of Russian
origin, “haskap” to subspecies with some emphyllocalyx /
Japanese origin, and Yezberry® of pure emphyllocalyx /
49 6 TTABVUE 4, 8.
50 See 6 TTABVUE 4, 6. Applicant cited to a federal district court case (i.e., “DAVID AUSTIN
ROSES LIMITED v. GCM RANCH LLC, 3:24-CV-0882-B (DC ND Texas 2025)”) in its
argument, but Applicant did not supply any decisions or materials relating to that case. Thus,
we have not considered it. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 101.03(a)(1) (June 2025) (citations to court cases must be to the
appropriate reporter).
51 6 TTABVUE 7.

Serial No. 98248089
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Japanese origin. It matters not so much what they are
called, but matching the bloom times is critical, as most
varieties need a companion for pollination.52
The evidence demonstrates that haskap (Japanese) and honeyberry (English) are
different names for the same plant subspecies. Applicant’s Blue Banana plant is a
taxonomical rank below the haskap/honeyberry subspecies – i.e., a varietal or
cultivar.
We acknowledge that Applicant’s specimen of use and the Berries Unlimited
website (which we attribute to Applicant) reveal that Applicant has attempted to use
Blue Banana as a trademark along with the term “haskap,”53 and that one seller of
the Blue Banana varietal (Honeyberry USA) also uses a “TM” symbol with Blue
Banana and Applicant’s other varietals such as Strawberry Sensation.54
We can infer from use of the “TRADEMARK: UNITED STATES” and the “TM”
symbol next to the words Blue Banana on the Berries Unlimited’s website and the
specimens of use that Applicant and Berries Unlimited intended to communicate to
the public through the use of the symbol that Applicant claims the words as a
trademark. That Applicant may have intended Blue Banana to operate as a
trademark is not determinative. Not every designation adopted with the intention
that it perform a trademark function necessarily accomplishes that purpose. In re
52 July 1, 2024 Non-Final Action at TSDR 9-10; see also id. at 26 (“Latin Name: Lonicera
caerulea”), 35 and 39 (“Japanese honeyberries [Lonicera caerulea var emphyllocalyx]”), 40
(“Russian Honeyberry: Lonicera caerulea var kamtschatica”), 41 (“Turzcaninowii
Honeyberry: Lonicera caerulea var Turzcaninowii”); Apr. 23, 2025 Request for
Reconsideration at TSDR 6 (“Haskap Blue Banana (Lonicera caerulea)”).
53 See supra pictures accompanying note 3 and text accompanying notes 21 and 22.
54 See supra text accompanying notes 26 and 27.

Serial No. 98248089
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Texas With Love, LLC, No. 87793802, 2020 TTAB LEXIS 466, at *5-6 (“Mere intent
that a phrase function as a trademark is not enough in and of itself to make it a
trademark.”) (quoting In re Pro-Line Corp., No. 74174721, 1993 TTAB LEXIS 24, at
*5)). “The mere [u]se of the letters ‘TM’ on a product does not make unregistrable
matter into a trademark, … and Applicant’s use is significant only if it contributed to
educating the public to understand that [Blue Banana] is something other than a
generic term.” In re Empire Tech. Dev. LLC, No. 85876688, 2017 TTAB LEXIS 232,
at *33 n.23 (cleaned up; quoting In re Remington Prods. Inc., No. 493829, 1987 TTAB
LEXIS 91, at *6).
Both Applicant and many third parties also explicitly identify Blue Banana as a
varietal or cultivar of the honeyberry plant.55 The context of these and the other third-
party websites of record make clear to the consumer that Blue Banana is a variety or
cultivar of the honeyberry plant. In similar circumstances, the court in Dixie Rose
Nursery found that Texas Centennial was the name of a variety of rose, even though
only the applicant and its licensees grew and marketed it:
This variety is known throughout the trade, and listed in
appellant’s catalog, by this name. Purchasers call for it,
and for no other variety, by this name. Appellant’s catalog
attributes to the “Texas Centennial” a number of physical
features which distinguish it from other roses. Appellant
has patented this rose, and apparently it is grown and
marketed only by appellant and its licensees. Though the
licensees agree to tell purchasers of appellant’s connection
with it, one may in fact but [sic] “Texas Centennial” roses
without learning that the original stock came from
appellant’s nursery…. To allow registration of the name
55 See supra text accompanying notes 22 (Berries Unlimited), 31 (One Green World), 33, 35,
and 36 (Stark Bros.), 39 (Vegetolab), 41 (AgriForest), 43 (Prairie Farm), and 46 (Nutcracker).

Serial No. 98248089
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“Texas Centennial” would give appellant an unfair
advantage, despite the fact that only appellant and its
licensees now produce Texas Centennials. It would tend to
prolong appellant’s monopoly, beyond the life of appellant’s
patent, by making it difficult for a newcomer to break into
the field. We cannot read such an intent into the Trade
Mark Act.
Dixie Rose Nursery, 131 F.2d at 446-47. Here, as in Dixie Rose, Applicant/Berries
Unlimited propagates the Blue Banana varietal/cultivar (and advertises that
propagation by others is prohibited and that a plant patent has been applied for).56
Some third parties expressly attribute Blue Banana to Applicant, but others do not.
All of the third-party sources describe the characteristics of the Blue Banana plant
and, in particular, the fruit it produces which distinguish it from other
varietals/cultivars of honeyberry fruit (e.g., large elongated blue berries in the shape
of a banana, sweet, and a smoky strawberry flavor), the optimal growing conditions,
and other honeyberry varieties appropriate for pollination.
The fact that Applicant apparently has invested in the promotion of Blue Banana
as a trademark for a new variety of honeyberry “cannot, per se, serve to elevate said
term to such status.” Hilltop Orchards, 1979 TTAB LEXIS 148, at *7 (finding CHIEF
BEMEDJI to be the common descriptive name for a particular variety of applicant’s
apple trees). As the court in Pennington Seed aptly observed:
While it is always distressing to contemplate a situation in
which money has been invested in a promotion in the
mistaken belief that trademark rights of value are being
created, merchants act at their peril in attempting, by
advertising, to convert common descriptive names, which
belong to the public, to their own exclusive use. Even
56 See infra note 63 and accompanying text.

Serial No. 98248089
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though they succeed in the creation of de facto secondary
meaning, due to lack of competition or other happenstance,
the law respecting registration will not give it any effect.
Pennington Seed, 466 F.3d at 1059 (quoting Weiss Noodle Co. v. Golden Cracknel &
Specialty Co., 290 F.2d 845, 848 (CCPA 1961)); accord, Int’l Fruit Genetics, 2022
TTAB LEXIS 403, at *36 (“[t]o allow trademark protection for generic terms, i.e.,
names which describe the genus of goods being sold, even when these have become
identified with a first user, would grant the owner of the mark a monopoly, since a
competitor could not describe his goods as what they are.”) (citing Pennington Seed,
466 F.3d at 1058).
We find Applicant’s argument unpersuasive.
C. Patent and Plant Protection
Next, Applicant summarily argued that “the mark is not being used in association
with any plant patent, utility patent, or certificate for plan[t]-variety protect [sic].”57
Although a patent or certificate for plant-variety protection would be probative
evidence, the perception of a term by the relevant public may be based on evidence
appropriate for the particular goods specified in the application. Dixie Rose Nursery,
131 F.2d at 447 (“The meaning which should be given to the words constituting the
mark is the impression and signification which they would convey to the public.”);
Hilltop Orchards, 1979 TTAB LEXIS 148, at *5 (“What we are concerned with in the
present case is the impact which the designation ‘COMMANDER YORK’ would have
57 6 TTABVUE 4. We construe Applicant’s argument as referring to Plant Variety Protection
(“PVP”) Certificates issued by the Plant Variety Protection Office, or PVPO, of the U.S.
Department of Agriculture. See Int’l Fruit Genetics, 2022 TTAB LEXIS 403, at *12.

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upon the purchaser or the prospective purchaser of apple trees as he encounters such
term in the marketing area where such goods are sold, and not its impact upon
those scientists especially skilled in the botanical field.”). Here, the record establishes
consumer exposure to the use of Blue Banana to identify a particular variety or
cultivar of honeyberry plant and fruit, and Applicant’s argument to the contrary is
not persuasive.
D. “Third-Party” Uses
Applicant argued that the evidence of record is inapposite because it was procured
from third parties after the application filing date: “The Examiner is supporting the
refusal with evidence of secondary parties copying the trademark term after the ITU
filing and the acceptance of a statement of use which by law guarantees the
associated right of priority specifically to address this type of situation.”58
We agree with the Examining Attorney that Applicant’s filing or priority date,
which, like the Section 2(d) search discussed above, is not relevant to our analysis
under Sections 1, 2, and 45.59 The fact that evidence was gathered after the filing date
of the application also is inapposite. Evidence showing descriptiveness or genericness
of a mark can be considered up until the Board renders its decision. In re Foster, 136
F.4th 1090, 1093 (Fed. Cir. 2025) (Board can consider evidence supporting refusal
under Section 2 of the Trademark Act up until decision issues) (citing, inter alia,
Application of Thunderbird Prods. Corp., 406 F.2d 1389, 1392 (CCPA 1969) (evidence
58 Id. at 11.
59 See 8 TTABVUE 5.

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showing descriptiveness under Section 2(e) in a refusal to register can be considered
“at least to the time the application is acted on in the Patent Office”)).
Applicant also calls these uses “fraudulent,” intimating that they were made
without Applicant’s permission.60 This argument also is not persuasive.
One of the websites made of record by the Examining Attorney is from Berries
Unlimited. Other websites discussed above identify “Lidia Stuart,” “Lida R. Delafield
Stuart,” and “Lida Delafield,” all of “Berries Unlimited,” as the propagator of the Blue
Banana variety or cultivar.61 Applicant (Lidia Glebouna Haiber) shares the same first
name as all of these named individuals, and the Berries Unlimited website of record
lists the same address that was provided for Applicant in the subject application.62
The webpage for the Blue Banana plant on the Berries Unlimited website states:
“PPAF: EXPIRES 2038 – PROPAGATION PROHIBITED.”63 Thus, we conclude that
Applicant is associated with Berries Unlimited, and this is not a third-party use.
As to the third-party websites discussed above, six (Honeyberry USA, One Green
World, Vegetolab, AgriForest Bio-Technologies, Prairie Gardens, and Beautiful Field
Farm) explicitly refer to Applicant and/or Berries Unlimited as having propagated
the Blue Banana variety/cultivar, and therefore are not third parties “copying the
trademark term” or “fraudulent” uses. These users of the term tell purchasers of
60 Id. at 9.
61 See supra text accompanying notes 27, 39, 41, and 43.
62 July 1, 2024 Office Action, at TSDR 8.
63 Id. at TSDR 6. “PPAF” is a common acronym standing for “plant patent applied for.” A
plant patent lasts twenty years from the application date. See 35 U.S.C. §§ 154(a)(2), 161 et
seq.

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Applicant’s true connection to Blue Banana. The “well-settled principle that being the
first and only user of a generic term – even if the public associates it with the first
user – does not make an otherwise generic term non-generic.” Empire Tech., 2017
TTAB LEXIS 232, at *60 and n.42 (citing cases). The other websites (Stark Bros.,
Cultivar, and Nutcracker) do not reference Applicant, indicating that “one may in fact
[encounter Blue Banana honeyberry plants] without learning that the original stock
came from [applicant’s] nursery.” Dixie Rose Nursery, 131 F.2d at 446.
Applicant’s argument is not persuasive, in that the third-party evidence supports
the conclusion that Blue Banana is a varietal or cultivar and cannot function as an
indicator of source.
E. Conclusion
We find, based on the record as a whole, that proposed mark is a varietal name
for “Fresh honeyberries; live plants, namely, honeyberry plants,” and therefore fails
to function as a trademark for these goods under Trademark Act Sections 1, 2, and
45.64
Decision
The refusal to register is affirmed.
64 The Examining Attorney made of record materials which indicate that “Blue Banana” may
merely describe the color and shape of the fruit produced by Applicant’s plant. See, e.g., text
accompanying notes 31 and 42 and picture accompanying note 23, supra. In view of our
affirmance of the varietal refusal herein, however, we do not remand the case to the
Examining Attorney to consider additional grounds for refusal.