DIRECTV, LLC

Trademark Trial and Appeal Board

Sep 11, 2012

No. 77967755 (T.T.A.B. Sep. 11, 2012)

Hearing: Mailed:
06/14/2012 9/11/2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re DIRECTV, LLC
________

Serial Nos. 77967755; 77967758; 85082281; 85082282; 85082285;
and 85082287
_______

Glenn A. Gundersen, Hal Borden and Jacob Bishop for DIRECTV,
LLC.

Renee Servance, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).1
_______

Before Quinn, Bucher and Greenbaum,
Administrative Trademark Judges.2

Opinion by Quinn, Administrative Trademark Judge:

DIRECTV, LLC filed applications to register the following
marks:
N3D (in standard characters) (application serial nos. 77967755
(International Class 38) and 77976758 (International Class 41));

1 The final refusals and appeal brief were handled by Michele-Lynn Swain. Ms.
Servance did not make an appearance in these cases until her participation at
the oral hearing.
2 Judge Grendel sat on the panel at the oral argument, but has subsequently
removed himself from the panel. Judge Bucher has been substituted for Judge
Grendel on this decision. The change in composition of the panel does not
necessitate a rehearing of the oral argument. Hunt Control Systems Inc. v.
Koninklijke Philips Electronics N.V., 98 USPQ2d 1558, 1560 (TTAB 2011). See
also In re Bose, 772 F.2d 866, 227 USPQ 1, 4 (Fed. Cir. 1985).
THIS OPINION IS NOT
A PRECEDENT OF THE
TTAB
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

2

N3D and design (as shown below) (application serial nos.
85082281 (International Class 38) and 85082282 (International
Class 41));

and
N3D DIRECTV (in standard characters) (application serial nos.
85082285 (International Class 38) and 85082287 (International
Class 41)).

The services are recited as follows: “satellite television
broadcasting; satellite transmission services; broadcasting
programs via global computer network; video-on-demand
transmission services; streaming of audio and video material via
the Internet, other computer networks, wireless networks and
electronic communication networks” (in International Class 38);
and “distribution of television programs for others; television
programming; programming on a global computer network; pay-per-
view television programming; video-on-demand television
programming” (in International Class 41). Application Serial
Nos. 77967755 and 77967758, filed March 24, 2010, are based on a
bona fide intention to use the mark in commerce; application
Serial Nos. 85082281, 85082282, 85082285 and 85082287, filed
July 12, 2010, are based on first use anywhere and first use in
commerce on July 1, 2010.
The examining attorney refused registration of each mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

3

§ 1052(e)(1), based on the mere descriptiveness of N3D. In this
connection, the examining attorney refused registration of the
marks N3D and N3D and design in Classes 38 and 41; and with
respect to the mark N3D DIRECTV in Classes 38 and 41, the
examining attorney refused registration based on applicant’s
failure to comply with a requirement to disclaim the term “N3D”
apart from the mark as used in connection with applicant’s
services.
When the refusals were made final, applicant appealed.
Pursuant to applicant’s request, the Board consolidated the
appeals. Applicant and the examining attorney filed briefs, and
both appeared at an oral hearing.3
The examining attorney maintains that the letter “N” stands
for “in” and the term “3D” means “three-dimensional.” According
to the examining attorney, the term “N3D” is both an
abbreviation and a phonetic equivalent of “in 3-D,” and is
therefore merely descriptive of applicant’s services featuring
the presentation of television programming in a three-
dimensional format. In support of the refusals, the examining
attorney submitted dictionary entries, excerpts of applicant’s

3 The examining attorney, at the oral hearing, objected to the exhibits
attached to applicant’s reply brief. As the examining attorney correctly
points out, this submission is untimely, and we have not considered the
documents identified as Exhibit B. Trademark Rule 2.142(d). Exhibit A is a
definition retrieved from an online dictionary that exists in printed form.
We have exercised our discretion and have taken judicial notice of this
definition. In re Dietrich, 91 USPQ2d 1622, 1631 n.15 (TTAB 2009).
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

4

website and of third-party websites, third-party registrations,
and articles retrieved from the Internet.
Applicant acknowledges that “the term ‘3D’ is a common
abbreviation for ‘three-dimensional,’ and that applicant’s
services involve the presentation of television programming in a
three-dimensional format.” (Brief, p. 4). Applicant argues,
however, that the letter “N” is not an obvious abbreviation of
the word “in,” nor is it the phonetic equivalent of “in.”
Applicant urges that consumers would not perceive N3D as
shorthand for “in 3D” and, thus, the term is not merely
descriptive. Applicant also offers a detailed critique of the
examining attorney’s evidence, concluding that it falls short of
showing that the term N3D is merely descriptive for applicant’s
services.
The examining attorney bears the burden of showing that N3D
is merely descriptive of applicant’s services. In re Merrill,
Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4 USPQ2d
1141, 1143 (Fed. Cir. 1987). A term is descriptive if it
"forthwith conveys an immediate idea of the ingredients,
qualities or characteristics of the goods [and/or services]."
Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 189
USPQ 759, 765 (2d Cir. 1976) (emphasis added). See In re Abcor
Development Corp., 616 F.2d 525, 200 USPQ 215 (CCPA 1978).
Moreover, in order to be descriptive, the term must immediately
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

5

convey information as to the qualities, features or
characteristics of the goods and/or services with a "degree of
particularity." Plus Products v. Medical Modalities Associates,
Inc., 211 USPQ 1199, 1204-1205 (TTAB 1981). See In re Diet
Tabs, Inc., 231 USPQ 587, 588 (TTAB 1986); Holiday Inns, Inc. v.
Monolith Enterprises, 212 USPQ 949, 952 (TTAB 1981); In re TMS
Corp. of the Americas, 200 USPQ 57, 59 (TTAB 1978); and In re
Gourmet Bakers, Inc., 173 USPQ 565 (TTAB 1972). Whether a
particular term is merely descriptive is determined in relation
to the services for which registration is sought and the context
in which the term is used, not in the abstract or on the basis
of guesswork.
The examining attorney may require an applicant to disclaim
an unregistrable component of a mark otherwise registrable.
Section 6 of the Trademark Act, 15 U.S.C. § 1056. This section
of the statute was amended in 1962 to allow the exercise of
greater discretion by examining attorneys in determining whether
a disclaimer is necessary. See TMEP § 1213.01(a) (8th ed. 2011).
Merely descriptive or generic terms are unregistrable under
Section 2(e)(1), and therefore are subject to disclaimer if the
mark is otherwise registrable. Failure to comply with a
disclaimer requirement is grounds for refusal of registration.
See In re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

6

(Fed. Cir. 1987); and In re Box Solutions Corp., 79 USPQ2d 1953
(TTAB 2006).
The letter “N” is defined as “the 14th letter of the English
alphabet” and, according to the dictionary, is pronounced as
“en.” The American Heritage Dictionary of the English Language
(5th ed. 2011). The letter “N” appears as an abbreviation for
over forty different terms, including “in.”
(www.acronymfinder.com). TMEP § 1209.03(h) is instructive in
considering the refusal:
As a general rule, an acronym or initialism
cannot be considered descriptive unless the
wording it stands for is merely descriptive
of the goods or services, and the acronym or
initialism is readily understood by relevant
purchasers to be “substantially synonymous”
with the merely descriptive wording it
represents. Thus, without additional
evidence, an applicant’s proprietary use of
an acronym is not sufficient to establish
that the acronym is readily understood to be
substantially synonymous with the
descriptive wording it represents. Modern
Optics Inc. v. The Univis Lens Co., 234 F.2d
504, 110 USPQ 293 (CCPA 1956) (finding the
record unconvincing that CV is a generally
recognized term for multifocal lenses and
lens blanks); In re Harco Corp., 220 USPQ
1075 (TTAB 1984) (record insufficient to
establish that CPL would be commonly
understood as no more than an abbreviation
of “computerized potential log”). (emphasis
added).

The examining attorney has submitted additional evidence in
support of the refusal. The examining attorney points to
applicant’s own uses as shown on its website (www.directv.com):
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

7

DIRECTV is working closely with major
studios and networks to bring the most HD 3D
content to your home. This brand new
dedicated HD 3D channel offers the best in
3D sports, music, nature, arts, and more.
Ch. 103
What you’ll see in 3D.

The Ultimate 3D Variety Channel, only from
DIRECTV 3D
Nature, sports, arts, music and so much
more, all in three crystal clear dimensions.
Welcome to n3D, channel 103, the ultimate 3D
variety channel, only from DIRECTV. With
around the clock adventures from extreme
sports to deep-water exploring, there’s
something in 3D for every member of the
family.

The examining attorney also highlighted in her brief the
following third-party uses to show “that the term N3D is
commonly used in connection with products and services featuring
3-D images or content”:
Aircord Lab’s N-3D concept turns an iPad
into world’s least practical 3D display.
(www.engaget.com)

Lafayette Peach Festival-N(3D)
Use the red-cyan 3D (anaglyph) glasses to
view.
(www.flikr.com)

iPad projector concept displays objects in
3D
N-3D demo from aircord on Vimeo
Tonight seems to be the night for 3D. A
design team released a proof of concept
video showing how it’s possible to use an
iPad to project a 3D image to the naked eye.
(www.crunchgear.com)

Our company was founded in 2004 by four
architects with a passion for visualizing
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

8

architectural designs in 3D. Our focus has
been high-quality and reliable production of
3D renderings and cinematic animations.
Think N 3D Studio award-winning creative
team and highly professional support staff
is devoted to meeting the goals of our
clients....
(www.think3d.com)

3D Entertainment proudly announced today its
acquisition of the worldwide distribution
rights for “Sea Rex 3”....The film is slated
for release in 3D and 2D at IMAX® theatres
in the US in Spring 2010.
(www.prnewswire.com)

The examining attorney also has relied upon several third-
party registrations showing “N” formative marks. The examining
attorney points to them as illustrating her point that the
letter “N” can serve as an abbreviation or substitute for “in.”
The marks are: NCOGNITO; N-TIMIDATOR; NSIGHT; N-TACT; NFLIGHT;
NFUSION; NSIDE REALTY GROUP; N’TENSE; N’GENUITY; and N-JECT.
We find that the examining attorney’s evidence falls short
of establishing that the term N3D is merely descriptive of
applicant’s services. We are not convinced that consumers are
likely to perceive the letter “N” as meaning “in,” or even
pronounce it as “in” such that N3D would be understood as “in
3D”; thus, consumers would have no expectation that N3D stands
for “in 3D,” even when they encounter the mark in connection
with applicant’s services rendered in three-dimensional format.
We agree with applicant’s assessment this is so mainly because
it is not a useful abbreviation: “Acronyms and other
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

9

abbreviations are created for the sake of convenience, because
they condense a longer phrase into a shorter string of letters
or syllables. However, there is no particular reason why anyone
would abbreviate ‘in 3D’ as N3D. N3D has the same number of
syllables as ‘in 3D,’ and only one additional letter. It saves
no space or time.” (Brief, p. 5).
The websites of applicant and third parties showing uses of
N3D and “in 3D” in the same article or paragraph do not
demonstrate that N3D means “in 3D”; and nowhere is N3D used
descriptively. The fact that applicant uses “in 3D” to describe
an aspect of its channel, while using the mark N3D as the name
of the channel, shows that the terms are not substantially
synonymous. Moreover, as shown by some of the evidence of
third-party uses not highlighted by the examining attorney, N3D
as used for tablet computers is short for “Naked 3D Display,”
and N3D for Nintendo products signifies “Nintendo 3D.”
We are not persuaded by the examining attorney’s third-
party registration evidence because in each case the letter “N”
takes the place of “IN” as the first portion of a commonly
recognized and understood word. We recognize that registrations
can be used as a form of a dictionary definition to illustrate
how a term is perceived in the trade or industry. See In re
J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987) (“Said
third-party registrations are of use only if they tend to
Serial Nos. 77967755; 77967758; 85028281; 85082282; 85082285;
and 85082287

10

demonstrate that a mark or a portion thereof is suggestive or
descriptive of certain goods....Used in this limited manner,
‘third-party registrations are similar to dictionaries showing
how language is generally used.’”). In these registered marks,
however, it is much easier for a consumer to perceive the
substitution of the letter “N” for “IN,” as compared to
applicant’s mark wherein the letter “N” is not the obvious first
portion of a word beginning with “IN-.” In any event, third-
party registrations are not conclusive on the issue of mere
descriptiveness as each case must stand on its own merits. See
In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566
(Fed. Cir. 2001).
We agree with applicant that there is no threat that
applicant’s registrations will remove a merely descriptive term
from the public domain. As applicant stated in its brief, and
reiterated at the oral hearing, “applicant’s competitors are
obviously free to use the descriptive phrase ‘in 3D,’ but there
is no reason why they would need to use the term N3D to describe
their services.” (Brief, p. 9).
We conclude that N3D is not merely descriptive when used in
connection with applicant’s services.
Decision: The refusals to register are reversed.