Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE LOWRANCE ELECTRONICS, INC.
Serial No. 426,052
December 29, 1989
Paul H. Johnson and James R. Head for applicant
Kathryn A. Dobbs
Trademark Examining Attorney
Law Office 3
(Myra K. Kurzbard, Managing Attorney)
Before Sams, Cissel and Quinn
Opinion by Cissel
Applicant has applied to register the words "COMPUTER SONAR" on the Supplemental Register for a "sonar apparatus for detecting the depth of water and the depth of objects and fish in the water." [FN1] Registration was refused under Section 23 of the Act on the grounds that the term is incapable of identifying applicant's goods and distinguishing them from similar products produced by others. When the refusal was made final, applicant appealed. On August 31, 1987 the refusal to register was affirmed by this Board.
On October 19, 1987 the Board denied applicant's request for reconsideration of the August decision. Applicant appealed to the United States Court of Appeals for the Federal Circuit. The Court subsequently granted the request of the Solicitor for remand to the Patent and Trademark Office for further examination and to make additional evidence of record concerning the recognized public understanding of the term "COMPUTER" as used with appellant's goods. In light of the remand the Board set aside its decision and remanded the application to the Examining Attorney on April 20, 1988 for consideration of the additional evidence referred to in the Court's remand.
On July 1, 1988 the Examining Attorney issued an Office Action again refusing registration on the Supplemental Register. As additional support for the refusal she cited applicant's 1988 catalog, its 1982 brochure, the operation manual for another company's "HUMMINBIRD" model "computer controlled" sonar device featuring "advanced microcomputer technology," and copies of a number of articles from periodical publications retrieved from the NEXIS data base of such information. This additional evidence was submitted in support of the Examining Attorney's contention that the term sought to be registered is so highly descriptive of applicant's goods that it is incapable of identifying them and distinguishing them from similar goods produced by others. When the refusal was made final, the application file was returned to the Board. Applicant filed a supplemental brief, to which the Examining Attorney responded with her own supplemental brief. The case is now before us again for decision. No oral hearing was requested. For the reasons which follow we again affirm the refusal to register.
As we noted in our original opinion, a term may be so highly descriptive of the goods with which it is used that it is incapable of becoming distinctive of them. The term need not be the name of the goods, but rather may simply be so descriptive of them that it cannot function as an indicator of the source of them. In re National Patent Development Corp., 1 USPQ2d 1921 (TTAB 1986).
*2 As we also stated in our earlier opinion, the evidence of record in this case demonstrates that purchasers would understand the term "COMPUTER SONAR" to indicate that applicant's products are computerized sonar devices. Both words have clearly understood, highly descriptive meanings as applied to applicant's goods.
The evidence originally submitted by the Examining Attorney showed this to be true, and the additional submission following the remand made it even clearer. The following are typical examples from the first submission showing the use of the words "COMPUTER" and "SONAR" by others in conjunction with one another in reference to computerized sonars:
"Now the scientists bounce sonar signals off fish and register their numbers and sizes with an on-board computer."
"Computer-aided background preprocessing represents a legitimate method of counting the amount of information a sonar operator must process."
"The rapid development of semiconductor devices and the subsequent evolution of the computer in the past 30 years has made possible sonar systems that were technologically inconceivable in the 1950's."
"In the past, a diver conducting marine surveys had the time-consuming task of setting out grids of ropes as co-ordinates for his samples under the sea. Now, the computer replaces the manual system with a sonar system which establishes the diver's bearings."
The additional evidentiary submissions are even clearer. Applicant promotes its products using the words "computerized digital sonars" in an indisputably generic way: "The ability of our computerized digital sonars to guide you safely over unfamiliar waters is reflected in one survey that found ..." Reference to the digital computer circuitry incorporating a microprocessor is made throughout applicant's materials. As demonstrated by the evidence made of record by the Examining Attorney, a microprocessor is a microcomputer. Applicant's brochure refers to the product as computer, noting, in reference to the microprocessor, "A microcomputer prevents false bottom signals on the digital instruments."
Applicant's contention that its product is not a computer is belied by the evidence. Applicant promotes the fact that its goods include computers by stating in its promotional materials that "the 3400 has an internal computer that automatically adjusts the sensitivity of the sonar ..." Its own catalogue states that in the "automatic mode ... (t)he computer takes control of upper and lower range limits ..." It touts its microprocessor as "a tiny, yet powerful computer, used in many sonar units."
The evidence of record also shows that other manufacturers of sonar units promote the computerized nature of their goods, using such phrases as "Advanced microcomputer technology" and "computer-controlled feature."
Additional evidence supplementing the original excerpts from periodicals shows that others have referred to a "ship's sonar computer", "sonar computers", "computers to improve sonar," "computer-generated sonar images," and to "automated sonars with computer circuitry." There is little discernible difference in meaning between a "sonar computer" and a "computer sonar."
*3 In summary, the record establishes that applicant's products are computerized sonar devices and that the words "COMPUTER SONAR" are, if not a popularly used name for the goods, so highly descriptive of them that they do not possess the capability of identifying applicant's devices and distinguishing them from similar devices produced by others. These words have no significance other than to specifically identify the essence of applicant's computerized sonar devices.
Applicant's argument that this conclusion cannot be reached without the impermissible dissection of the two-word term is not well taken. As noted by the Examining Attorney, we stated in In re Associated Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988):
Whether a term which is created by combining two or more unregistrable words may achieve registration depends on whether, in combination, a new and different commercial impression is achieved and/or the term so created imparts a bizarre or incongruous meaning as used in connection with the goods or services.
In the case at hand the combination of the generic words "COMPUTER" and "SONAR" achieves no commercial impression different from what one who understands the individual meanings of the separate words would expect. No bizarre or incongruous meaning is imparted by the combination of the two generic words. The combination simply results in a term which is readily understood to refer to sonar which incorporates computer technology. As such, the term sought to be registered, "COMPUTER SONAR," is so descriptive of applicant's goods that it is incapable of identifying their source and distinguishing them from similar goods produced by others.
Decision: Accordingly, the refusal to register is affirmed.
Members, Trademark Trial and Appeal Board
FN1. S.N. 426,052, originally filed May 16, 1983 for registration on the Principal Register, but subsequently amended to seek registration on the Supplemental Register. Use since November 1, 1982 was claimed.