JBA Consulting, Inc.

Trademark Trial and Appeal Board

Dec 3, 2003

No. 78079350 (T.T.A.B. Dec. 3, 2003)

Mailed: December 3, 2003
Paper No. 10
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re JBA Consulting, Inc.
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Serial No. 78079350
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Jeffrey R. McFadden of Womble Carlyle Sandridge & Rice,
PLLC for JBA Consulting, Inc.
Fred Mandir, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Hairston, Walters and Chapman, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
JBA Consulting, Inc. has filed an application to
register the mark REAL TIME AUDIT for “computer software in
the nature of end user applications for managing accounts
payable, supplier relationship management, procurement
management, disbursement auditing, duplicate payment
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 78079350
2
prevention, data warehousing and fraudulent payment
prevention.”1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. 1052(e)(1), on the
ground that when used in connection with the identified
goods, the mark is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested. We affirm the refusal
to register.
The Examining Attorney’s position is as follows:
Applicant’s proposed mark “REAL TIME AUDIT”
directly describes the goods by identifying
the real time audit capability of the applicant’s
computer software. Since “real time” is a
computer science term that means “the time
required for a computer to solve a problem,”
the term “real time audit” refers to a
computer accomplished audit that takes place
without any delay or lag time.
(Brief, p. 4).
The Examining Attorney relies on dictionary
definitions wherein “real time” is defined in computer
science as “[t]he time required for a computer to solve a
problem, measured from the time data are fed in to the time
a solution is received,” and “audit” is defined as “[a]n
1 Serial No. 78079350 filed as an intent-to-use application on
August 15, 2001.
Ser No. 78079350
3
examination of records or financial accounts to check their
accuracy.”2
In addition, the Examining Attorney submitted the
following excerpts of articles retrieved from the NEXIS
database which show use of the terms “real time” and
“audit.”
A real-time microcomputer-based audit was
used to help select an activated sludge
plant for a demonstration of benefits
achievable through uses of …
(Enviroline, November 20, 1984); and
By January 1987 COMEX will automate trade
timing and audit procedures with Real-time
Trade Recordation (RTR) to catch illegal
traders.
(Banking Technology; September 1986).
Further, the Examining Attorney made of record
material downloaded from several websites. At one of the
websites (www.datamirror.com) reference is made to the
“DataMirror Live Audit” software which allows companies to
“capture and monitor real-time audit trails.” At another
website (www.vantra.com) reference is made to “Distributed
Inventory Management Software” with “real-time audit
capability.”
Applicant, in urging reversal of the refusal to
register, argues that the mark is not merely descriptive of
2 The American Heritage Dictionary of the English Language, Third
Edition 1992.
Ser No. 78079350
4
the identified goods. According to applicant, the
Examining Attorney has mischaracterized applicant’s goods;
that is, applicant’s goods are not auditing software and
they do not perform auditing functions. Further, applicant
argues that the mark REAL TIME AUDIT as applied to the
identified goods could suggest that the computer software
audits accounts payable at the same time it also completes
some other external process.
Finally, applicant criticizes the NEXIS and Internet
evidence submitted by the Examining Attorney, arguing that
such evidence does not show use of the phrase “real time
audit” in connection with goods that are the same as or
similar to those in the involved application.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Trademark Section 2(e)(1),
if it forthwith conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use
of the goods or services. See In re Gyulay, 820 F.2d 1216,
3 USPQ2d 1009 (Fed. Cir. 1987); and In re Abcor Development
Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978). A term need
not immediately convey an idea of each and every specific
feature of the applicant’s goods or services in order to be
merely descriptive; it is enough that the term describes
one significant attribute, function or property of the
Ser No. 78079350
5
goods or services. See In re H.U.D.D.L.E., 216 USPQ 358
(TTAB 1982); and In re MBAssiociates, 180 USPQ 338 (TTAB
1973). Whether a term is merely descriptive is determined
not in the abstract, but in relation to the goods or
services for which registration is sought, the context in
which it is being used or is intended to be used on or in
connection with those goods or services, and the possible
significance that the term would have to the average
purchasers; that a term may have other meanings in
different contexts is not controlling. In re Bright-Crest,
Ltd., 204 USPQ 591, 593 (TTAB 1997). Finally, “[w]hether
consumers could guess what the product is from
consideration of the mark alone is not the test.” In re
American Greeting Corporation, 226 USPQ 365, 366 (TTAB
1985).
Applying these principles to the present case, we find
that the mark applicant seeks to register, REAL TIME AUDIT,
is merely descriptive of the goods identified in the
application, “computer software in the nature of end user
applications for managing accounts payable, supplier
relationship management, procurement management,
disbursement auditing, duplicate payment prevention, data
warehousing and fraudulent payment prevention.”
Ser No. 78079350
6
We find that each of the terms REAL TIME and AUDIT is
merely descriptive of the goods, and the composite term
REAL TIME AUDIT likewise is merely descriptive.
With respect to the term AUDIT, the dictionary excerpt
submitted by the Examining Attorney shows that “audit”
means to examine records or financial accounts to check
their accuracy. Applicant’s computer software, as
identified, involves the examination of records and
financial accounts to check their accuracy.
With respect to the term REAL TIME, the dictionary
excerpt submitted by the Examining Attorney shows that
“real time” is a term of art in the computer science field.
It means that data entered into a computer is processed
immediately; there is no delay or lag time.
The combined term REAL TIME AUDIT therefore
immediately informs prospective purchasers of applicant’s
computer software that a salient feature thereof is its
ability to audit in real time. In other words, applicant’s
computer software will be capable of examining data
relating to accounts payable, suppliers, procurement,
disbursement auditing, etc. immediately upon being entered
into a computer.
We are not persuaded by applicant’s arguments in
opposition to the mere descriptiveness refusal. Applicant
Ser No. 78079350
7
contends that its mark is not merely descriptive because
its computer software is not “auditing software in the
classical sense of the word ‘audit’”. We recognize that
traditionally an audit is done of information that has been
stored. However, there is nothing in the dictionary
definition of the word “audit” which limits it to an
examination of records or financial accounts that have been
stored.
Also, applicant contends that REAL TIME AUDIT may have
other meanings. For example, according to applicant, it
could mean a “real” or actual audit of time records. Of
course, as we have already stated, whether a term is merely
descriptive is determined not in the abstract, but in
relation to the goods or services for which registration is
sought.
Decision: The refusal to register under Section
2(e)(1) is affirmed.