Accu-fit Clubfitting Inc.

Trademark Trial and Appeal Board

Feb 13, 2002

No. 75848515 (T.T.A.B. Feb. 13, 2002)

2/13/02 Paper No. 12
BAC

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Accu-fit Clubfitting Incorporated
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Serial No. 75/848,515
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Larry L. Coats of Coats & Bennett, LLP for Accu-fit
Clubfitting Incorporated.

LaVerne T. Thompson, Trademark Examining Attorney, Law
Office 113 (Odette Bonnet, Acting Managing Attorney).
_______

Before Cissel, Seeherman and Chapman, Administrative
Trademark Judges.

Opinion by Chapman, Administrative Trademark Judge:
An application has been filed by Accu-fit Clubfitting
Incorporated to register on the Principal Register the mark
SWING COEFFICIENT for “services in the area of fitting golf
clubs for individuals” in International Class 41.1
The Examining Attorney has finally refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. §1052(e)(1), on the basis that the mark SWING

1 Application Serial No. 75/848,515, filed November 15, 1999.
The claimed dates of first use and first use in commerce is
November 1998.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/848515
2
COEFFICIENT, when used in connection with the services of
the applicant, is merely descriptive of them.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested.
The Examining Attorney contends that the word “swing”
is descriptive of applicant’s services because “applicant
measures the golfer’s swing of his/her club to determine
the best club size for the individuals swing” (brief, p.
4); that the word “coefficient” is descriptive of
applicant’s services because “applicant merely determines
the physical measurement of the golfer’s swing and assigns
it a coefficient” (brief, p. 6); that applicant’s mark
SWING COEFFICIENT “merely describes the manner in which the
clubs are fitted” (Final Office action, p. 2); and that the
combination of the two words does not create a separate,
nondescriptive meaning.
Applicant argues that the nature of golf club fitting
services varies from one professional fitter to another;
that applicant coined the mark SWING COEFFICIENT to
identify and distinguish its golf club fitting services
from others; that SWING COEFFICIENT is not used by others
in the business and it is not a term of art in golf; that
it is an arbitrary mark, or at worst, it is a suggestive
Ser. No. 75/848515
3
mark which requires thought and multi-stage reasoning to
make the connection between the mark and the services; that
SWING COEFFICIENT does not immediately and forthwith
describe any specific quality, feature, or characteristic
of its services; that the Examining Attorney improperly
dissected the mark in analyzing descriptiveness; and that
any doubt on the question of whether a mark is merely
descriptive should be resolved in applicant’s favor.
In support of her refusal, the Examining Attorney
submitted (i) dictionary definitions of the terms “swing”
and “coefficient”;2 and (ii) printouts of several excerpted
stories retrieved from the Nexis database. Also of record
are (i) applicant’s specimens of record (newspaper
advertisements); and (ii) a copy of applicant’s training
manual and guide explaining applicant’s club fitting
service which was submitted by applicant in response to the
Examining Attorney’s request for information.
The test for determining whether a mark is merely
descriptive is whether the mark immediately conveys
information concerning a quality, characteristic, function,

2 In her brief on appeal, the Examining Attorney requested that
the Board take judicial notice of additional dictionary
definitions included with her brief. The request is granted
because the Board may take judicial notice of dictionary
definitions. See University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., 213 USPQ 594, aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983), and TBMP §712.01.
Ser. No. 75/848515
4
ingredient, attribute or feature of the product or service
in connection with which it is used. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978);
and In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979).
Whereas a mark is suggestive if imagination, thought or
perception is required to reach a conclusion on the nature
of the goods or services. See In re Quik-Print Copy Shop,
Inc., 616 F.2d 523, 205 USPQ2d 505 (CCPA 1980).
It has long been acknowledged that there is often a
very narrow line between terms which are merely descriptive
and those which are suggestive, and the borderline between
the two is hardly a clear one. See In re Atavio Inc., 25
USPQ2d 1361 (TTAB 1992).
In the present case, we conclude that the evidence
does not support the Examining Attorney’s position. The
mark SWING COEFFICIENT does not readily and immediately
convey information as to the nature of applicant’s
services.
The Examining Attorney’s submission of dictionary
definitions includes the following: The American Heritage
Dictionary (Third edition 1992) definitions of “swing” as
“2. to hit at something with a sweeping motion of the arm,”
and “coefficient” as “2. a numerical measure of a physical
or chemical property that is constant for a system under
Ser. No. 75/848515
5
specified conditions such as the coefficient of friction.”
When the words SWING COEFFICIENT are used together, it is
not clear from the dictionary definitions how the term is
merely descriptive of applicant’s services.
Further, the Nexis stories of record do not evidence
use of the words “SWING COEFFICIENT” descriptively in
relation to the services which are the subject of this
application. The Examining Attorney searched the Nexis
database for articles in which the word “swing” appeared
within 5 words of the word “coefficient,” submitting 9
excerpted stories of the 15 total. None of the 9 stories
includes the words together, and most do not relate to golf
or sports at all, relating instead to business, stocks,
politics, and human motor control. The only pertinent
story relating to golf is shown below (emphasis in original
provided in record):
HEADLINE: For [sic-From?] Swords to
Clubs; In Its Shift From Military to
Commercial Products, Wyman-Gordon
Co. Has Entered the Golf Market
...made larger, which keeps a drive
playable, but will weigh the same as
a smaller clubhead of steel, said
Wyman-Gordon’s Mortimer. “A player
can miss the ball a little bit and
still have a good shot.”
Titanium also has a better “elastic
coefficient,” or ability to transfer
energy from swing speed to force on
the ball, translating, presumably,
into greater distance, he said.
Ser. No. 75/848515
6
Golf World’s Pike points out that
most titanium drivers have longer
shafts, and a longer shaft creates a
longer arc and more clubhead speed.
“Sunday Telegram (Worcester, MA),”
July 21, 1996.

The Examining Attorney also searched the Nexis
database for articles in which “golf swing” appeared within
5 words of “swing,” and “club fitting” appeared within 5
words of “swing.” Examples of these are set forth as
follows (emphasis in original printouts in record):
HEADLINE: Flip Out Over POG Tourneys
Meanwhile, the Arizona Science Center
will sponsor “Batter Up” from 11 a.m.
to 3 p.m. Saturday, outdoors at Second
and Adams streets. A machine will
measure the speed of fastballs and the
force of golf swings.... “The Arizona
Republic,” February 24, 1995;

HEADLINE: Kreipe’s New Niblicks Suit
Hackers to a Tee
To construct the proper set of clubs
for his clients, Kreipe uses a swing
analyzer, essentially a digital
computer that measures club head
speed, club path, ball carry and other
critical components of a golf swing.
Based on those measures, Kreipe builds
in the proper alterations in the club.
“The Business Journal-Portland,”
January 20, 1986;

HEADLINE: Sports fans Zone in on ESPN
Complex
...In a baseball batting cage, you can
swing against the major-league
baseball pitcher of your choice, say
randy Johnson or Mike Messina. At
Virtual PGA, you can measure your golf
Ser. No. 75/848515
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swing. “The Richmond Times Dispatch,”
December 27, 1998;

HEADLINE: Valley/Ventura County
Sports; Valley of the Stars
Championship
LPGA Fan Village
Wednesday through Sunday: The Village
is a 2,400-square-foot entertainment
and information center for fans.
Among the features: Digital golf-swing
analysis, club-fitting, hitting golf
balls autographs and photos with tour
players, rules seminars and a 60-foot-
long pictorial timeline on the LPGA.
“Los Angeles Times, “ February 6,
1999; and

Headline: Taking Swing at Serving Only
Women; LadysGolf.com Stocks Apparel,
Equipment
Boudreau and her husband, an adjunct
business professor at Northeastern
University, opened the 2,600 square-
foot store last December.
LadysGolf.com specializes in custom-
club fitting and swing speed analysis,
and also provides an indoor hitting
cage, putting green, and a television
and VCR to view instructional tapes.
“The Boston Globe,” May 9, 1999.

The Board must assume that the Nexis evidence
submitted by the Examining Attorney is the best case
possible for the Examining Attorney’s position that the
mark is merely descriptive of the identified services. See
In re Homes & Land Publishing Corp., 24 USPQ2d 1717,1718
(TTAB 1992).
The record before the Board simply does not establish
a prima facie case that “SWING COEFFICIENT” is merely
Ser. No. 75/848515
8
descriptive of applicant’s services of fitting golf clubs
for individuals. Even if a numerical measure of
computation is made in relation to various aspects of
golfing (e.g., swing, speed, club head), there is no
evidence that consumers would readily understand a
connection between SWING COEFFICIENT and the services of
fitting golf clubs for individuals. See Bose Corp. v.
International Jensen Inc., 963 F.2d 1517, 22 USPQ2d 1704
(Fed. Cir. 1992); In re Classic Beverage Inc., 6 USPQ2d
1383 (TTAB 1988); and Manpower, Inc. v. The Driving Force,
Inc., 212 USPQ 961 (TTAB 1981), aff’d 538 F.Supp. 57, 218
USPQ 613 (EDPA 1982).
Decision: The refusal to register under Section
2(e)(1) is reversed.