Tower Tech, Inc.

Trademark Trial and Appeal Board

May 14, 2002

No. 75709532 (T.T.A.B. May. 14, 2002)

5/14/02
Mailed: June 4, 2002
Paper No. 14
BAC

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Tower Tech, Inc.
________

Serial No. 75/709,532
_______

Scott R. Zingerman of Fellers, Snider, Blankenship, Bailey
& Tippens, P.C. for Tower Tech, Inc.

Eugenia K. Martin, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______

Before Seeherman, Walters and Chapman, Administrative
Trademark Judges.

Opinion by Chapman, Administrative Trademark Judge:
On May 19, 1999, Tower Tech, Inc. (an Oklahoma
corporation) filed an application to register the mark
SMARTTOWER on the Principal Register for “commercial and
industrial cooling towers and accessories therefor, sold as
a unit” in International Class 11. The application is
based on applicant’s assertion of its bona fide intention
to use the mark in commerce.
The Examining Attorney refused registration under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.
THIS DISPOSITION IS
CITABLE AS
PRECEDENT OF THE TTAB
Ser. No. 75/709532
2
§1052(e)(1), on the basis that, when used on or in
connection with applicant’s goods, the term SMARTTOWER is
merely descriptive of them.
When the refusal was made final, applicant appealed to
this Board. Both applicant and the Examining Attorney have
filed briefs. Applicant requested an oral hearing, but
prior to the scheduled hearing date, applicant withdrew its
request. An oral hearing was therefore not held in this
case.
The Examining Attorney contends that the mark
SMARTTOWER is comprised of two descriptive components, the
combination of which does not change the overall
descriptiveness of the mark. She specifically contends
that the relevant meaning of the word “smart” is defined in
The American Heritage Dictionary (Third Edition 1992) as
“5.a. of, relating to, or being a highly automated device,
especially one that imitates human intelligence: smart
missiles,” and is defined in Webster’s Encyclopedic
Unabridged Dictionary (1996) as “17. Informal. equipped
with, using, or containing electronic control devices, as
computer systems, microprocessors, or missiles: a smart
phone, a smart copier”1; that the word “tower” refers to

1 The American Heritage Dictionary definition was put into the
record by the Examining Attorney, and the Webster’s Encyclopedic
Ser. No. 75/709532
3
applicant’s goods, “cooling towers”; and that applicant’s
goods are “smart” because they “contain microprocessors or
otherwise use computers to control or perform their
functions.” (Brief, p. 2). The Examining Attorney
concludes that the combination of “smart” and “tower” into
a single word remains merely descriptive of this
significant feature of the identified goods.
The evidence relied on by the Examining Attorney in
support of the refusal consists of the dictionary
definitions of the words “smart”; copies of several
excerpted stories retrieved from the Lexis/Nexis “news
library” database and copies of excerpts from patents
retrieved from the Lexis/Nexis “patent library” database,
all showing common use of the term “smart” in relation to
computer-operated or otherwise automated items, including
cooling towers.
Applicant urges reversal, arguing that the word
“smart” has many different meanings as shown by both
dictionary definitions (in American Heritage it is the
fifth of six definitions and in Webster’s it is the

Unabridged Dictionary definition was put into the record by
applicant. Along with the Webster’s dictionary definition,
applicant submitted photocopies of two pages from the “How to Use
this Dictionary” Section to show that definitions are ordered
such that “the most frequently encountered meanings generally
come before less common ones.”
Ser. No. 75/709532
4
seventeenth of twenty-three definitions); that the word
“tower” relates to a structure which is tall or high in
proportion to its lateral dimension, and many cooling
towers are not “towers” at all because they are not tall
and do not have a height proportion greater than their
lateral proportion; that the term “tower” covers “an
enormous variety of structures which fit the general
description of the term” (brief, p. 5) such as air traffic
control towers, radio towers, cellular signal towers and
high rise buildings; that a tower is a structure, not a
device; and that when encountering the mark SMARTTOWER
customers would recognize the meaning of “smart” as “clever
or intelligent” which is a definition not applied to an
inanimate object such as a tower. Applicant concludes from
this that the term is suggestive (brief, pp. 5 and 7):
In light of the incongruous meanings
of the words “smart” and “tower” as
described above, the compound mark
“SMARTTOWER” does not merely describe
commercial and industrial cooling
towers and accessories therefor, sold
as a unit, as asserted by the
Examining Attorney. Rather, a mental
connection must be made by the
consumer to correlate the specific
meanings of these words as applied to
Applicant’s recited goods. In other
words, Applicant’s mark is at most
suggestive.

The fact that an item, even a cooling
tower, is computer controlled or even
Ser. No. 75/709532
5
highly automated does not provide the
potential customer with distinct
knowledge or reasonably accurate
information as to the function or
characteristics of the item. These
terms only suggest something
unspecified about the item which the
customer must perceive from inspection
to be highly automated.

In addition, in its reply brief (p. 3), applicant made
specific comments about its involved goods:
“The [Examining Attorney’s]
assertion that Applicant’s cooling
towers are smart because they
contain microprocessors or otherwise
use computers to control or perform
their functions is apparently based
on pure speculation,”

and

“in order to satisfy any potential
lingering curiosity, pursuant to
Applicant, the cooling towers
manufactured and sold by Applicant
do not contain a microprocessor.”

The test for determining whether a term or phrase is
merely descriptive under Section 2(e)(1) of the Trademark
Act is whether it immediately conveys information
concerning a quality, characteristic, function, ingredient,
attribute or feature of the product or service in
connection with which it is used or is intended to be used.
See In re Abcor Development Corp., 588 F.2d 811, 200 USPQ
215 (CCPA 1978); In re Venture Associates, 226 USPQ 285
(TTAB 1985); and In re Bright-Crest, Ltd., 204 USPQ 591
Ser. No. 75/709532
6
(TTAB 1979). A term or phrase does not have to describe
every quality, feature, function, etc. of the goods or
services in order to be found merely descriptive; it is
sufficient for the purpose if it describes a single
significant quality, feature, function, etc. thereof.
Further, it is well-established that the determination
of mere descriptiveness of a particular term or phrase must
be made not in the abstract or on the basis of guesswork,
but in relation to the goods or services for which
registration is sought, the context in which the term or
phrase is being used or is intended to be used on or in
connection with those goods or services, and the impact
that it is likely to make on the average purchaser of such
goods or services. See In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987); In re Consolidated Cigar Co.,
35 USPQ2d 1290 (TTAB 1995); and In re Pennzoil Products
Co., 20 USPQ2d 1753 (TTAB 1991). The question is not
whether someone presented with only the mark could guess
what the goods or services are. Rather, the question is
whether someone who knows what the goods or services are
will understand the mark to convey information about them.
See In re Home Builders Association of Greenville, 18
USPQ2d 1313 (TTAB 1990); and In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985).
Ser. No. 75/709532
7
The evidence in the form of excerpted stories
retrieved from the Lexis/Nexis database shows general use
of the term “smart” in relation to myriad computer-operated
or otherwise automated items, including smart elevators,
smart thermostats, smart cards, smart locks, and smart
traffic control systems. Some other examples of uses of
“smart” in these stories are reproduced below:
Headline: Letters
... In these days of smart bombs and
computer–operated weapons, who could
ever understand what we went through in
World War II?
“The Tampa Tribune,” September 4, 2000;

Headline: Computers to Shape Future
Home Designs
Shales discounts the idea of the much-
touted “smart home” of the future – the
computer-driven house where lights come
on at voice commands or the lawn
sprinkler goes into action when the
ground gets dry.
“Chicago Sun-Times,” November 26, 1999;
and

Headline: Book Reviews, Vichy Soup
... This one is not for those
frightened by today’s techno babble.
The futuristic thriller stars a
rebellious computer-operated “smart”
building. A nail biter, nightmare
vision written by a scary Scot who
blends technophobia,...
“The Buffalo News,” December 29, 1996.

Four of the six patent excerpts put into the record by
the Examining Attorney show that cooling towers may be
automated. They read, in relevant part, as follows:
Ser. No. 75/709532
8
Patent No. 4,507,930
Cooling Tower Monitor
“Chiller Plant Energy Conservation
Operations” by K. Sinnamohideen and N.
Olmstead, discloses the use of digital
computers for calculating performance
of a cooling tower....
Currently, there are no effective
tools for monitoring cooling tower
performance except for computers.

Patent No. 5,407,606
Oriented Spray-Assisted Cooling Tower
... Most recently, the thermal
performance of cooling towers may be
predicted by employing computer
programs...;

Patent No. 4,885,011
Cooling Tower for the Cooling Water
That Drains/ From the Condensor of a
Steam Generator or the Condensors/ of
a Plurality of Steam Generators
... The optimization of the course of
the flow of cooling air and the smoke
gas or the mixture of cooling air and
smoke gas, for example, or during
varying load conditions of the power
station as well, can be effected
automatically, e.g. by means of a
suitable control computer. ...; and

Patent No. 4,830,757
Telemetry System for Water and Energy
Monitoring
... Each remote station includes a
water quality monitor computer 10
which monitors one or more physical
properties of water in a cooling tower
or other water system. ...
1. A method of telemetrically
monitoring water treatment and an
inventory of water treatment chemicals
and adjusting water properties in a
recirculating system including a
boiler, cooling tower or scrubber with
a computer-based system, comprising....
Ser. No. 75/709532
9
In this case, because automated systems are used as
part of cooling towers, purchasers will readily perceive
“smart” to mean “of, relating to, or being a highly
automated device.” Further, the word “tower,” in the
context of a cooling tower, will be perceived as referring
to cooling towers. We see no reason why purchasers would
view the word “tower,” when used for a cooling tower, to
mean, as applicant suggests, an air traffic control tower,
a radio tower or a high rise building. Thus, the two words
separately have a readily understood meaning in the
industry, and when combined as the term SMARTTOWER and used
on or in connection with applicant’s goods (“commercial and
industrial cooling towers and accessories therefor, sold as
a unit”), the term merely describes cooling towers that are
highly automated. There is no unique or incongruous
meaning created.
Applicant’s argument that the relevant purchasers
would think of other possible meanings (e.g., “clever or
intelligent,” “fashionable or elegant,” “saucy or pert”)
would require considering the applied-for mark in a vacuum.
These meanings would clearly not come to mind when the term
is viewed in connection with “commercial and industrial
cooling towers and accessories therefor, sold as a unit.”
In addition, we are not persuaded that purchasers would go
Ser. No. 75/709532
10
through the technical mental exercise put forth by
applicant of first thinking of “smart” as clever or
intelligent, then rejecting this definition because it is
not applicable to an inanimate object such as a tower, and
then “apply several additional definitions to arrive at
‘highly automated.’”
Applicant’s argument regarding the various types of
towers likewise would require the Board to consider the
applied-for mark in a vacuum, rather than under the proper
legal test relating the term to the goods for which
applicant seeks registration.
Although applicant has stated that its goods “do not
contain a microprocessor” (reply brief, p. 3), applicant
did not deny that computers are used to control or perform
the functions of cooling towers. Applicant’s general
statements in its brief and reply brief (quoted previously
herein) suggest that cooling towers are computer controlled
or highly automated. In any event, the Examining Attorney
has clearly demonstrated that, in fact, computers, i.e.,
automated systems, are used to control or perform the
functions of cooling towers. Thus, even though a
microprocessor may not be physically present within the
shell of the cooling tower itself, the record shows that
cooling towers operate and are monitored through computers,
Ser. No. 75/709532
11
even though the computer may be remote or indirect rather
than contained within the tower itself. The relevant
purchasers of commercial and industrial cooling towers and
accessories therefor are likely to be aware of the
operation of same.
The Examining Attorney has established a prima facie
showing that the term SMARTTOWER is merely descriptive of
applicant’s identified goods. See In re Cryomedical
Sciences Inc., 32 USPQ2d 1377 (TTAB 1994) (SMARTPROBE held
merely descriptive of disposable cryosurgical probes). We
specifically note that in the Cryomedical case the
applicant therein had stated that its cryosurgical probes
may include a microprocessor, whereas in the case now
before us applicant has specifically stated that its
cooling towers do not contain a microprocessor. However,
as explained previously, the evidence establishes that the
functions and performance of cooling towers are highly
automated; thus, it is reasonable to describe such towers
as “smart.”2 Further, applicant’s broad identification of
goods encompasses both cooling towers that are controlled

2 If applicant had stated that there is no microprocessor and
that there is no computer control of the functions and/or
performance of the cooling towers, then the Examining Attorney
may have held the term deceptively misdescriptive.

Ser. No. 75/709532
12
by computers and cooling towers, if there are any, that are
not controlled by such technology.
We find that even though applicant’s cooling towers
will not contain a microprocessor within the shell or
structure of the tower itself, the record establishes the
mere descriptiveness of the mark SMARTTOWER for commercial
and industrial cooling towers and accessories therefor,
sold as a unit, because the functions and performance of
such towers are computer controlled, and will be so
understood by the relevant consumers. “The factual
situations in which mere descriptiveness must be resolved
are too varied to lend themselves to resolution under any
rigid formula.” In re Omaha National Corporation, 819 F.2d
1117, 2 USPQ2d 1859, at 1861 (Fed. Cir. 1987).
In this case, it is our view that, if applied to
applicant’s identified goods, the term SMARTTOWER
immediately describes, without conjecture or speculation, a
significant feature or characteristic of applicant's goods,
as discussed herein. Nothing requires the exercise of
imagination, cogitation, mental processing or gathering of
further information in order for purchasers of and
prospective customers for applicant’s goods to readily
perceive the merely descriptive significance of the term
SMARTTOWER as it pertains to applicant’s goods.
Ser. No. 75/709532
13
Decision: The refusal to register the mark as merely
descriptive under Section 2(e)(1) of the Trademark Act is
affirmed.