Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE ENGINEERING SYSTEMS CORPORATION
Serial No. 507,205
December 2, 1986
William David Kiesel for applicant.
Before Sams, Rice and Cissel
Opinion by Rice
An application has been filed by Engineering Systems Corporation to register the mark "DESIGN GRAPHIX" for computer programs, [FN1] use since July 31, 1979 being asserted. The application, as originally filed, seeks registration under the provisions of Section 2(f) of the Trademark Act of 1946, 15 U.S.C. 1052(f), based on a claim that applicant's mark has become distinctive of its goods in commerce as a result of applicant's substantially exclusive and continuous use thereof as a mark for the five years preceding the filing of the application.
Registration has been refused under Section 2(e)(1) of the Act, 15 U.S.C. 1052(e)(1), on the ground that the designation "DESIGN GRAPHIX", as applied to applicant's computer programs, is merely descriptive of them. The Examining Attorney further maintains that applicant's mark is highly descriptive in nature, and hence that the evidence submitted by applicant is insufficient to establish that its mark has become distinctive of its goods in commerce.
In response to the first Office action refusing registration, applicant supplemented its evidence of distinctiveness by submitting copies of advertisements and articles referring to applicant's "DESIGN GRAPHIX" products; a list of its distributors; and letters from two of its distributors who indicated that they recognized "DESIGN GRAPHIX" as applicant's software product. Further, counsel for applicant stated that for the period from July 1978 through April 1985, applicant's sales of "DESIGN GRAPHIX" computer programs amounted to more than $3,500,000; that its "DESIGN GRAPHIX" advertising expenditures for the same period exceeded $138,000; and that applicant has established a nationwide distributor organization.
Notwithstanding the fact that its application was filed pursuant to the provisions of Section 2(f), it is applicant's basic position, argued quite strenuously, that its mark is not merely descriptive as applied to its goods. Accordingly, we construe applicant's claim of distinctiveness as having been offered in the alternative.
The record shows that applicant's "DESIGN GRAPHIX" computer programs are computer aided design and drafting (the industry acronym for which is "CADD") software packages that include schematic modules, logic-design applications, pc-board layout packages, and many mechanical and architectural design programs. The packages support "a variety of graphic displays and plotters." The principal purpose of applicant's software is "to computer draw blueprints, three-dimensional objects primarily in architectural and engineering capacities."
The record also shows that the noun "design" is defined in Websters Third New International Dictionary (1981) as follows:
*2 6a. the arrangement of elements that make up a work of art, a machine, or other man-made object b. the process of selecting the means and contriving the elements, steps, and procedures for producing what will satisfy some need . . .; specif: the drawing up of specifications as to structure, forms, positions, materials, texture, accessories, decorations in the form of a layout for setting up, building, or fabrication.
In the same dictionary the term "graphic" is defined, inter alia, as "a picture, map or graph used for illustration or demonstration" and the term 'graphics,' as the plural of "graphic," is defined as "the art or science of representing a three-dimensional object on a two-dimensional surface according to mathematical rules of projection." The term "graphics" is defined in The Data Communications Dictionary as "the use of diagrams or other graphical means to obtain operating data and answers." In this regard, we also note that in Webster's New World Dictionary of Computer Terms (1983), the term "computer graphics" is defined as follows:
[T]he use of a computer to produce pictorial representations of relationships, such as charts, and two- or three-dimensional images, by means of dots, lines, curves, etc: the data can be entered through various devices in the form of lines or drawings or can be entered through a keyboard. Once the image has been produced on a screen, it may be manipulated by moving, rotating, or elongating it with devices such as a light pen or track ball.
Further, the articles and advertisements submitted by applicant show the terms "design" and "graphics" used descriptively, in relation to computer programs, in such contexts as "graphics programs," "graphics systems," "graphics software," "computer-aided design software," "architectural design package," "mechanical and electrical building design software," "2-D and 3-D design/drafting system," "extensive graphics features," "package design programs," and "drafting design program."
Finally, the record contains copies of printouts of certain story segments from Mead Data Central's "NEXIS" computerized library of information (found in response to a search request for stories containing the term "design graphics"). The most pertinent of these include such usages as "Picture 3. Hitachi's high-resolution 2000 x 2000-pixel display adds precision to computer-aided design graphics."; "CADWARE-GROUP: Announces design graphics system for 1BM PC (TM) . . . low cost design software system combines rule tool methodology with powerful CAD tools to yield universal software tool solution"; ". . . a monochrome function screen mounted horizontally below. A light pen allows easy interaction by the user with the design graphics. Where needed, a stand-alone analytical processor, the EDA 500 can be connected to the net to provide more power."; "The controllers are targeted at original-equipment manufacturers for such high-performance applications as computer-aided design graphic arts, animation, computer imaging, and simulation."; and "At the time, Wood was a housewife, mother and student at Texas A&M University where her husband taught engineering design graphics."
*3 The question of whether a particular term is merely descriptive must be determined not in the abstract, but in relation to the goods or services for which registration is sought, the context in which the mark is used, and the significance that the mark is likely to have, because of the manner in which it is used, to the average purchaser as he encounters goods bearing the mark in the marketplace. See: In re Abcor Development Corp., 200 USPQ 215 (CCPA 1978); In re Nibco Inc., 195 USPQ 180 (TTAB 1977); and cases cited therein. A term is merely descriptive if, as applied to the goods or services in question, it describes an ingredient, quality, characteristic, function, feature, composition, purpose, attribute, use, etc. of such goods or services. See: In re Abcor Development Corp., supra; In re American Screen Process Equipment Co., 175 USPQ 561 (TTAB 1972); In re Universal Water Systems, Inc., 209 USPQ 165 (TTAB 1980); and cases cited therein. Moreover, mere misspelling does not add trademark significance to an otherwise unregistrable merely descriptive term. See: In re Jacqueline Cochran, Inc., 196 USPQ 715 (TTAB 1977); Borden, Inc. v. Minnesota Mining and Manufacturing Co., 164 USPQ 318 (TTAB 1969); and cases cited therein.
In the present case, based on the evidence described above, we are of the opinion that the term "DESIGN GRAPHIX", when applied to applicant's computer programs, is merely descriptive of them in that it immediately informs prospective purchasers that applicants programs are graphics programs used for design purposes, that is, that they may be used to generate a graphic representation of a design. Further, we agree with the Examining Attorney's conclusion that the term "design graphics" is highly descriptive as applied to goods such as applicant's; indeed, it appears from the "NEXIS" evidence that "design graphics" is a "term of art" in the engineering and computer fields. Under the circumstances, we are not persuaded by the evidence submitted by applicant in support of its claim of distinctiveness that "DESIGN GRAPHIX" has in fact become distinctive of applicant's goods in commerce within the meaning of Section 2(f).
Decision: The refusal to register is affirmed.
J. D. Sams
J. E. Rice
R. F. Cissel
Members, Trademark Trial and Appeal Board
FN1. Serial No. 507,205, filed November 5, 1984.