Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE SUNDOWN TECHNOLOGY INC.
Serial No. 487,963
February 6, 1987
Hearing: November 13, 1986
Morgan & Finnegan for applicant
John Michael Curtin and Robert Feeley
Trademark Examining Attorneys
Law Office 3
(Myra K. Kurzbard, Managing Attorney)
Before Sams, Allen and Rooney
Sundown Technology Inc. has appealed from the Trademark Examining Attorney's final refusal to register its mark 'GOVERNOR' for goods described in the application as 'controls used to affect, compress, limit and shape the sound from the output stage of an electric musical amplifier.' [FN1] The Examining Attorney refused registration, under Section 2(e)(1) of the Trademark Act, on the grounds that 'GOVERNOR' is merely descriptive of the goods in connection with which applicant uses the mark.
The application file discloses that the mark 'GOVERNOR' appears on applicant's amplifiers beneath one of the knobs on the amplifier control panel, a photograph of which appears in applicant's advertising brochures, as shown below:
In support of the refusal to register, the Examining Attorney made of record an excerpt from WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, showing a definition of 'GOVERNOR' as
(a) an attachment to a machine (as a gasoline or steam engine) designed to afford automatic control or limitation of speed or power; esp: such an attachment actuated by the centrifugal force of whirling weights opposed by gravity or by springs (b) a contrivance giving automatic control (as of pressure or temperature)--called also regulator.
The Examining Attorney also made of record excerpts from the THOMAS REGISTER, which publication lists, under diverse headings, the sources of various products. Among the headings listed in the register are 'GOVERNORS: MOTOR, ELECTRIC'. The Examining Attorney took the position that the term 'GOVERNOR' is a word commonly used to describe a device used to control such things as speed and pressure, is a synonym for the word 'regulator' and, when applied to applicant's amplifier controls, would have the 'standard control connotations' of the word 'GOVERNOR'. At the oral hearing, the Examining Attorney asked the Board to take judicial notice of two additional dictionary definitions excerpted from a technical dictionary (ELECTRONICS AND NUCLEONICS DICTIONARY), showing definitions of the terms 'RMS value' and 'master gain control'. The former definition refers to '. . . the square root of the average of the squares of the instantaneous amplitudes for one complete cycle [of alternating current].' The second definition, of 'master gain control,' shows the following: 'a variable resistor . . . used in a stereo amplifier to control the gain of both of audio channels simultaneously.' The Examining Attorney seeks to make these definitions of record to show that the terms 'MASTER' and 'RMS' appearing beneath the dials on applicant's amplifier control panel are terms with technical meanings as applied to amplifiers. On the basis of that evidence, the Examining Attorney wishes us to draw the additional conclusion that 'GOVERNOR', as it appears on the control panel, must, like 'RMS' and 'MASTER,' be a merely descriptive word as applied to amplifiers. Applicant did not raise any objection to our taking judicial notice of these dictionary definitions, and we consider them part of the record in this case. Nonetheless, for the reasons stated below, we do not believe this evidence proves what the examining attorney seeks to prove by its introduction.
*2 Applicant's argument in this case is straightforward. Applicant argues that, while 'GOVERNOR' may have a well understood meaning with respect to goods in other fields (e.g., electric motors), the Examining Attorney has failed to adduce evidence that 'GOVERNOR' has any technical descriptive meaning when applied to amplifiers or amplifier controls. In support of its argument, applicant offered excerpts from various publications in which its amplifiers are discussed and reference is made to the 'GOVERNOR' control. Applicant argues that, in these references, its 'GOVERNOR' control is mentioned by technical writers with a 'TM' designation, the word 'GOVERNOR' is discussed in terms of its uniqueness to applicant's amplifier, and 'GOVERNOR' is not used as a term with an accepted meaning in the field.
Based on this record, we find that 'GOVERNOR' is not merely descriptive of applicant's amplifier controls. The dictionary definition of record for the word 'GOVERNOR' is notable for its absence of a reference to 'GOVERNOR' as a term of art in the electronics field in general or in connection with amplifiers in particular. That the term 'GOVERNOR' may have a specific meaning with respect to electric motors is not evidence that the term has a particular meaning with respect to amplifiers (or amplifier controls) or that purchasers, upon seeing the word 'GOVERNOR' applied to an amplifier control, would immediately understand the function of that control. Nor can we fairly conclude that 'GOVERNOR' is a merely descriptive word as applied to amplifier controls simply because other controls on the control panel are labeled with words that are merely descriptive of their functions. That fact is, of course, relevant, but is insufficient in itself to prove descriptiveness.
In finding 'GOVERNOR' not merely descriptive of amplifier controls, we wish to distinguish our decision in In re Sony Corp. of America, 218 USPQ 453 (TTAB 1983). In that case, the Board found the term 'VELOCITY MODULATION' merely descriptive of a scanning apparatus for use in televisions. The evidence in that case showed that 'velocity modulation' had a well understood technical meaning that was relevant as applied to scanning apparatus for televisions. Even applicant's literature in that case discussed the term 'velocity modulation' in terms which highlighted its descriptive meaning. Thus, the record presented in that case differed in important respects from the record in this case.
We do not, of course, foreclose the possibility that, when this mark is published for opposition, a competitor might bring forth evidence to prove that 'GOVERNOR' is a technical term with descriptive meaning as applied to amplifier controls. Nonetheless, on this record, we find that 'GOVERNOR', as applied to applicant's goods, is nebulous in meaning and, therefore, not merely descriptive within the meaning of Section 2(e)(1) of the Trademark Act.
Decision: The refusal to register is reversed.
J. D. Sams
D. B. Allen
L. E. Rooney
Members, Trademark Trial and Appeal Board
FN1. Serial No. 487,963, filed July 2, 1984.