Gazette Communi-cations, Inc.

Trademark Trial and Appeal Board

Dec 13, 2002

No. 78019371 (T.T.A.B. Dec. 13, 2002)

Mailed: December 13, 2002
Paper No. 11
cl

UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Gazette Communications, Inc.
________
Serial No. 78/019,371
_______
James C. Nemmers, Esq. for Gazette Communications, Inc.
Steven R. Berk, Trademark Examining Attorney, Law Office
102 (Thomas Shaw, Managing Attorney).
_______
Before Simms, Hanak and Holtzman, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Gazette Communications, Inc. (applicant), an Iowa
corporation, has appealed from the final refusal of the
Trademark Examining Attorney to register the mark HOGCAM
for “agricultural information services, namely, creating
and distributing via the global computer network data and
information relating to the raising of hogs.”1 The
Examining Attorney has refused registration under Section

1 Application Serial No. 78/019,371, filed August 2, 2000, based upon an
allegation of applicant’s bona fide intention to use the mark in
commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 78/019,371
2
2(e)(1) of the Act, 15 USC §1052(e)(1), on the basis that
applicant’s asserted mark is merely descriptive of
applicant’s services. Applicant and the Examining Attorney
have submitted briefs but no oral hearing was requested.2
We affirm.
It is the Examining Attorney’s position that
applicant’s asserted mark combines two merely descriptive
words into a descriptive composite which merely describes a
feature or characteristic of applicant’s services. More
particularly, the Examining Attorney argues that the term
“hog” refers to any type of domestic swine while the term
“cam” refers to a camera or, more specifically, a Web
camera. While the description of applicant’s services does
not explicitly indicate that they involve the use of a
camera, the Examining Attorney notes that applicant has
stated in its July 20, 2001, response that:
It is presently intended that the
website over which the services will be

2 While another Examining Attorney had earlier submitted definitions of
the term “cam,” including the meaning “camera,” in his brief the new
Examining Attorney handling this case requests that we take judicial
notice of other dictionary definitions, apparently from an online
dictionary, of the term “cam,” including the meaning “A video camera
that is used to send periodic images or continuous frames to a Web site
for display…” Applicant has not objected to this in its reply brief.
Accordingly, we shall take judicial notice of these definitions. See
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213
USPQ 594 (TTAB 1982), aff’d 701 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983). The Examining Attorney also does not object to the introduction
of material from applicant’s Web site, attached to applicant’s appeal
brief, similar to other evidence of record, because it further helps
demonstrate use of other similar marks by applicant, such as “CornCam”
and “SoybeanCam.”
Serial No. 78/019,371
3
provided will, in part, use a video
camera.
Further, the Examining Attorney notes the following
statement from applicant’s brief, 3:
Applicant’s services are not simply
video cameras showing live animals or
growing plants, but are quite detailed
informational services directed towards
consumers who are farmers or other
agriculture-industry professionals…
…The examining attorney has identified
other situations where the term “CAM”
is combined with an animal name in zoo
or other situations. However, these
are used in a descriptive sense when
used only in connection with video
cameras showing live animals.
Applicant’s services are so much more
than that since they provide
agricultural information and the videos
showing live animals or growing plants
is [sic] only a small part of the
services and certainly not the primary
purpose of the services.
In this connection, the Examining Attorney contends that it
is not necessary that a term describe all of the purposes,
functions, characteristics or features of applicant’s
services in order for it to be merely descriptive. The
Examining Attorney argues that, although applicant will
apparently provide other information on its Web site, if
applicant uses the asserted mark in the same manner that it
is using its other “-CAM” marks, the video images will be a
prominent feature of applicant’s Web site. The Examining
Serial No. 78/019,371
4
Attorney contends that, when a user of applicant’s services
sees the mark HOGCAM in connection with live Web-casted
images of hogs, the user will immediately understand the
significance of applicant’s mark and a significant purpose
of applicant’s services--that applicant is showing images
of hogs via the Internet through a Web camera.
The Examining Attorney also notes applicant’s uses of
the terms “CornCam” and “SoybeanCam” from applicant’s Web
sites. See below (reduced):
Serial No. 78/019,371
5
The Examining Attorney has also made of record
excerpted articles from the Nexis database showing use of
such terms as “Penguin cam,” “Gorilla cam,” “elephant-cam,”
“zebra-cam,” “Chicken Cam,” “Rhino Cam,” “lion cam,” “tiger
cam” and “bear cam.” The Examining Attorney points to this
evidence to show awareness of the term “cam” preceded by an
animal name indicating the viewing of animals through a
camera from a remote location. One of the articles
apparently refers to applicant:
…Who would have thought that watching crops
grow would generate such interest? Focused
day and night on a cornfield in Monticello,
Iowa, this site has generated up to 20,000
Serial No. 78/019,371
6
hits and 500 e-mails a day from bored office
workers and science-teacher-prompted school-
kids. Coming soon from the Hawkeye State:
spinoff cams trained on soybeans, cattle and
hogs.
Newsday, June 28, 2000. The Examining Attorney also points
to the following statement from the first page of
applicant’s CornCam Web site: “Last year’s CornCam field
will become a soybean field, soon to be visible on
SoybeanCam.” While the Examining Attorney concedes that
there are a number of definitions of the term “cam,” it is
the Examining Attorney’s position that, in relation to
applicant’s services, the viewer will understand that “CAM”
in applicant’s mark means “camera.”
It is applicant’s position, on the other hand, that,
while there is no question that the term “hog” is
descriptive and that one of the definitions of “cam” is
“camera” (brief, 3), “cam” has a number of meanings so that
applicant’s asserted mark conveys no immediate knowledge of
the characteristics or features of applicant’s services.
Applicant argues, therefore, that its mark as a whole is
suggestive of “a wide assortment of products and services,”
brief, 4, and that an exercise of imagination, thought or
perception is required before a consumer can make a
conclusion about the nature of applicant’s services whereby
applicant provides a broad range of agricultural
Serial No. 78/019,371
7
information and not merely the viewing of hogs via a
camera. According to applicant, the mark HOGCAM has no
single, immediate or clear meaning and that one seeing or
hearing applicant’s mark has virtually no idea of the
related agricultural services applicant offers, except that
they might have to do with hogs.
Applicant states that it is using different marks for
providing similar services directed to different segments
in the agricultural industry. Applicant indicates that
while its application to register CORNCAM was initially
rejected by the Office, it was eventually allowed.
In response to this argument, the Examining Attorney
contends that he is not bound by decisions of other
Examining Attorneys, that a mark which is merely
descriptive is not to be registered merely because other
similar marks may have been placed on the Register, and
that each case must be considered on its own merits.
A mark is merely descriptive if it immediately
describes the ingredients, qualities, characteristics or
features of the goods or services, or if it immediately
conveys information regarding a function, purpose or use of
the goods or services. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 217 (CCPA 1978). See also In re
Nett Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Serial No. 78/019,371
8
Cir. 2001). We look at the mark in relation to the goods
or services, and not in the abstract, when we consider
whether the mark is merely descriptive. In re Omaha
National Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir.
1987); and Abcor, 200 USPQ at 218. Courts have long held
that to be “merely descriptive,” a term need only describe
a single significant quality or property of the goods or
services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009
(Fed. Cir. 1987); Meehanite Metal Corp. v. International
Nickel Co., 262 F.2d 806, 120 USPQ 293, 294 (CCPA 1959);
and In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982).
Upon careful consideration of this record and the
arguments of the attorneys, we conclude that applicant’s
mark HOGCAM immediately informs users and prospective users
of applicant’s services of a significant feature of those
services--that applicant’s services involve the images of
hogs via a camera. In this regard, we are convinced that
the “CAM” portion in applicant’s mark HOGCAM, when used in
connection with applicant’s services, will have the
significance which the Examining Attorney contends.
Further, as the Examining Attorney has noted, it is not a
requirement that a mark describe all of the features of a
product or service in order for it to be determined to be
merely descriptive. It is only necessary that the term in
Serial No. 78/019,371
9
question describe a significant feature or characteristic
of a product or service. Moreover, the evidence of record
tends to demonstrate that the public may have become
accustomed to the use of the word “cam” with an animal
name. This reinforces our belief that when the relevant
public encounters applicant’s mark in connection with
applicant’s services, the term will have a readily
understood meaning.
Concerning applicant’s recently obtained registration
of the mark CORNCAM, what the U.S. Court of Appeals for the
Federal Circuit has said is relevant:
Needless to say, this court encourages the
PTO to achieve a uniform standard for
assessing registrability of marks.
Nonetheless, the Board (and this court in
its limited review) must assess each mark
on the record of public perception
submitted with the application.
In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564,
1566 (Fed. Cir. 2001). See also In re Scholastic Testing
Service, Inc., 196 USPQ 517 (TTAB 1977).
Decision: The refusal of registration is affirmed.