*1 THIS OPINION IS CITABLE AS PRECEDENT OF THE T.T.A.B.
Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
IN RE PUTMAN PUBLISHING CO.
Serial No. 74/452,456
April 26, 1996
Stephanie L. Matthews of Carponelli & Krug, P.C. for Putman Publishing Co.
Scott J. Major
Trademark Examining Attorney
Law Office 5
(Janice O'Lear, Acting Managing Attorney)
Before Sams, Seeherman and Hairston
Opinion by Seeherman
Administrative Trademark Judge
Putman Publishing Co. has appealed the refusal of the Trademark Examining Attorney to register FOOD & BEVERAGE ON-LINE as a mark for "a news and information service updated daily for the food processing industry, contained in a database." [FN1] Registration has been finally refused pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C. 1052(e)(1), on the ground that applicant's mark is merely descriptive of its services.
Applicant and the Examining Attorney have submitted briefs, but an oral hearing was not requested.
It is noted that during the prosecution of this application applicant argued that the mark as a whole was not merely descriptive, but stated that "the term 'On-Line' may be descriptive of the services provided by applicant." Applicant went on to say that "in the alternative, however, if the applicant's argument concerning the descriptiveness of FOOD & BEVERAGE ON-LINE is not accepted, applicant shall agree to amend its application to disclaim any exclusive right to the use of the word 'on-line' or 'online' apart from the mark as shown." Response filed October 3, 1994. The Examining Attorney did not specifically acknowledge this disclaimer, although the file indicates that the disclaimer has been entered into the record. Subsequent papers filed by applicant and the Examining Attorney make no reference to the disclaimer of "On-line." To clarify matters, we deem applicant to have offered, and the Examining Attorney to have accepted, a disclaimer of "ON-LINE" since the Examining Attorney did not find applicant's arguments sufficient to overcome the descriptiveness refusal. We would add that, whether or not ON-LINE were disclaimed, the result in this case would be the same.
In support of his position that FOOD & BEVERAGE ON-LINE is merely descriptive of "a news and information service updated daily for the food processing industry, contained in a database," the Examining Attorney has pointed to applicant's specimens, which contain such statements as the following:
Food & Beverage On-Line is the first on-line news and information service devoted to the business and marketing aspects of the U.S. and international food and beverage industry. Now, you can sit at your computer and have instant access to breaking food industry news. Our on-line library will prove invaluable in researching virtually all areas of the food and beverage business.
*2 With this interactive on-line service, you have 24-hour-a-day access to what is happening--and has happened--in the dynamic, ever-changing world of food and beverages.
The Examining Attorney has also made of record dictionary definitions of "food" and "beverage," and a definition from The Computer Glossary which states, in connection with the listing for "online," that "An online computer system refers to a system with terminals," and that "an interactive system is an online system that implies data entry and updating."
The test for determining whether a mark is merely descriptive is whether the involved term immediately conveys information concerning a quality, characteristic, function, ingredient, attribute or feature of a product or service. In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979); In re Venture Lending Associates, 226 USPQ 285 (TTAB 1985).
We have no hesitation in finding that the applied-for mark is merely descriptive of applicant's services. As shown by applicant's own description of its services in its specimens, as well as its offer of a disclaimer and the computer dictionary definition, ON-LINE describes the mode through which applicant provides its information service. Further, when this word is combined with FOOD & BEVERAGE, in the mark FOOD & BEVERAGE ON-LINE, and is used for the identified services, it directly conveys information about the nature of the services, namely the subject matter of the computer-accessed news and information service. Accordingly, the relevant class of consumers will immediately understand, without any need for imagination, thought or perception, that applicant's FOOD & BEVERAGE ON-LINE news and information service provides food and beverage news and information via interactive computer access.
Applicant has relied on In re TBG Inc., 229 USPQ 759 (TTAB 1986), in which SHOWROOM ONLINE was found to be not merely descriptive of the service of "leasing computer databases and video disks in the field of interior furnishings and related products of others." In that case, the applicant's services involved leasing video disks and computer disks for use in its information retrieval system (a system consisting of a microcomputer, a video disk player and twin video and computer screens all incorporated into a specially designed console). Pictorial and textual information relating to interior furnishings were coordinated by the system so that an architect or interior designer could rapidly search for products by computer. The product information provided in the disks related to the products of others, and the applicant did not represent the manufacturers of the products, did not sell or lease interior furnishings, and was not otherwise in the interior furnishing businss. Further, the applicant did not take a pictorial representation of a showroom or even data relating to a showroom and place it online. Thus, SHOWROOM was only suggestive of the applicant's services.
*3 On the other hand, in the present case, as we noted above, FOOD & BEVERAGE describes the subject matter of applicant's online news and information service.
Applicant also relies on H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d. 987, 228 USPQ 528 (Fed.Cir.1986). However, that case is not persuasive because it involved the question of whether FIRE CHIEF was generic. The issue currently before us is whether applicant's mark is merely descriptive of its identified services. For the reasons indicated above, we find that it is.
Decision: The refusal of registration is affirmed.
Administrative Trademark Judges
Trademark Trial and Appeal Board