American Automobile Association, Inc.

Trademark Trial and Appeal Board

Dec 7, 2005

No. 75719651 (T.T.A.B. Dec. 7, 2005)

Hearing: Mailed:
August 11, 2005 December 7, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re American Automobile Association, Inc.
________

Serial No. 75719651
_______

Lawrence E. Laubscher, Jr. of Laubscher & Laubscher for
American Automobile Association, Inc.

J. Brett Golden, Trademark Examining Attorney, Law Office
102 (Thomas Shaw, Managing Attorney).
_______

Before Quinn, Hohein and Zervas, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:
American Automobile Association, Inc. has appealed
from the final refusal of the examining attorney to
register on the Principal Register the term MAYDAY (in
standard character form) as a trademark for the following
goods, as amended: “electronic transceivers for vehicles
for requesting emergency police, fire, and rescue service,
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 75719651
2
emergency road service, and for requesting and receiving
travel information” in International Class 9.1
The examining attorney has refused registration under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), on the grounds that, when used on applicant's
goods, the mark MAYDAY would be merely descriptive of such
goods.
Both applicant and the examining attorney have fully
briefed the case. An oral hearing was held before the
Board on August 11, 2005.
The examining attorney contends that the mark “is
merely descriptive, and not suggestive, of a use or
function of the identified goods.” In support thereof, he
relies in part on the dictionary definition of “mayday” as
“an international radiotelephone signal word used by
aircraft and ships in distress” from The American Heritage
Dictionary of the English Language (3d ed. 1992),
maintaining that “mayday” “is commonly used to describe a
distress signal or request for emergency assistance from
the user of a motor vehicle.” He also relies on various
Internet articles which describe “mayday systems,”

1 Application Serial No. 75719651, which was filed on June 4,
1999, based on applicant's assertion of its bona fide intention
to use the mark in commerce.

Serial No. 75719651
3
contending that “mayday” “has become a term of art used in
the automotive and emergency response industries to
describe a system or equipment that incorporates global
positioning, satellite and wireless telecommunications, and
emergency response technologies in order to determine the
location of and communicate with a motor vehicle and its
operator in an emergency situation.” Specifically, he
maintains that “in the context of applicant's goods …
MAYDAY immediately and unambiguously describes a system or
equipment that is used by the operator of a motor vehicle
to request emergency assistance and communicate with
emergency response personnel.”
Applicant has argued against the refusal to register
under Section 2(e)(1), contending that while “[a]pplicant
readily agrees that [mayday] is an international radio-
telephone signal word used as a distress call,” the term
“is, at most, suggestive of [applicant's] goods.”
According to applicant, to be merely descriptive, “a mark
must have no other meaning or function”; that, in this
case, there are multiple meanings of “mayday” as evidenced
in Internet search results using the Google and Yahoo
search engines which were submitted by applicant in
response to the examining attorney’s initial refusal under
Serial No. 75719651
4
Section 2(e)(1); and that “the consuming public is exposed
to a plethora of uses of ‘mayday.’” (Brief at pp. 4 - 6.)
A term is deemed to be merely descriptive of goods or
services, within the meaning of 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. 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
considered merely descriptive; it is enough that the term
describes one significant attribute, function or property
of the goods or services. In re H.U.D.D.L.E., 216 USPQ 358
(TTAB 1982); and In re MBAssociates, 180 USPQ 338 (TTAB
1973).
We first consider the Internet evidence of record and
the examining attorney’s contention that “mayday” “has
become a term of art used in the automotive and emergency
response industries.” The record in this case includes the
following Internet evidence:
From www.cts.umn.edu, University of Minnesota Center
for Transportation Studies:

Mayday equipment is on the verge of becoming a
standard feature in many vehicles. In fact, more
Serial No. 75719651
5
than two million vehicles are expected to have
Mayday features available by next year.

From www.comcare.org, ComCARE Alliance:

Similar to safety benefits provided by the proper
use of seat belts and airbags, telmatics Mayday
systems represent the next generation of I-
vehicle safety technology. Mayday systems
automatically notify a private call center, such
as GM OnStar, ATX Technologies, or AAA Response,
that a vehicle’s airbag has been deployed, or an
emergency call button has been pushed.

From www.its.dot.gov, ITS U.S. Department of
Transportation:

Title: Mayday Systems

* * *

Current
Status: Mn/DOT is seeking to identify new
opportunities to continue the development of
its Mayday system.

From www.iacptechnology.org - article entitled “Intelligent
Transportation Systems: A Traffic Incident Management
Tool”:2

In-vehicle technologies such as Mayday are
becoming more and more prevalent. These systems
are most commonly marketed as OnStar (General
Motors), RESCU (Ford/Lincoln), and RESPONSE
(AAA). Mayday systems enable vehicle operators
to have direct verbal communication with private
call centers regarding requests for traveling
directions or mechanical assistance, or
notification of crashes.

2 Because a URL was not provided for this article, we are not
certain from where it came. However, we consider this article
because applicant has not raised a specific objection to the
article on this basis.
Serial No. 75719651
6
From www.virginiadot.org:

Estimates are that Mayday systems could cut
response times from an average of more than 9
minutes to less than 5 minutes.

From www.ur.ku.edu, The University of Kansas Office of
University Relations:

But work is under way on a system called Mayday,
which would summon help automatically in an
emergency such as this.

From www.smarttrek.org:

The advantage of wireless technology – mobility –
has made it impossible for emergency dispatchers
to find wireless 911 callers who don’t know their
location. XYPoint and Bartizan will provide two
versions of mayday systems to send accident
locations electronically to emergency and
roadside response centers.

From U.S. Department of Transportation, “Intelligent
Transportation Systems Standards Fact Sheet,” dated August
2000:

Systems that are used to alert emergency response
agencies that an individual vehicle has been
involved in an accident are commonly referred to
as “mayday systems.” Unfortunately, the 30 or so
different mayday systems that have been installed
in many vehicles recently cannot communicate with
each other, nor are they comparable with existing
national, state, or local level emergency (911)
response agencies.

From the foregoing, it is apparent that “mayday” is a
term used to identify or describe a system for alerting
emergency police, fire and rescue professionals of a motor
vehicle in distress, and that a communication device which
sends a distress signal to such professionals, such as an
Serial No. 75719651
7
electronic transceiver, is used in such a system. Thus,
one use or function of the goods identified in the
application is with mayday systems. The examining attorney
therefore has made a prima facia case based on the Internet
evidence that the applied-for mark merely describes a use
or function of the goods.
Applicant contends that the Internet evidence
submitted by the examining attorney “can be tied to a
single source. Specifically, Minnesota Guidestar initiated
the project in the 1990’s called Mayday Plus …. The Mayday
Plus project was an intelligent transportation systems
(ITS) initiative to provide innovative solutions to
transportation problems.” (Reply at pp. 1 - 2.)3 Even if
applicant's contention is true, the record reflects use of
“mayday” in connection with “mayday systems” or alone, and
not only as “Mayday Plus” or always with “Mayday Plus.”
Additionally, the evidence shows use of “mayday systems”
without capitalization in some Internet articles. While
Minnesota Guidestar may have initiated a study called
“Mayday Plus” in 1995,4 it is certainly possible – and in

3 Applicant has also provided with its reply brief additional
evidence taken from the Internet. This additional evidence is
untimely and is not further considered because under Trademark
Rule 2.142(d), the record in an application should be completed
prior to filing an appeal.
4 See submission from www.inform.enterprise.prog.org, stating
“[i]n 1995, MN/DOT developed a concept, implemented, tested and
Serial No. 75719651
8
this case, apparent, in view of the Internet evidence
obtained by the examining attorney in 2004 – that “mayday”
has gained broader meaning over nine years and identifies a
system for alerting emergency response agencies that an
individual vehicle has been in an accident. Additionally,
the record reflects use of “Mayday system[s]” by entities
such as the federal Department of Transportation, the
University of Minnesota and the University of Kansas.
Applicant also contends that “whether a proposed mark
is merely descriptive must be evaluated from the standpoint
of the prospective purchaser of the goods” (quoting from In
re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215
(CCPA 1978)); that the Internet evidence is from federal
and state departments of transportation; and that the
“jargon used by those employed in a specific industry
should not be unequivocally linked to the consumer unless
there is sufficient evidence to create this link.” (Reply
at pp. 4 – 5.) Applicant's argument is not well taken.
First, we are not aware of any reason why the articles of
record would not be reviewed by automobile manufacturers
who, as potential purchasers of applicant's goods, are

subsequently evaluated its Mayday Plus project through a unique
public-private effort. The goals of this 11 county project
were ….”

Serial No. 75719651
9
considering whether to include electronic transceivers in
their vehicles. Second, there is no reason to suggest that
potential purchasers of applicant's goods such as
automobile manufacturers or individuals would not access
the same Internet articles introduced by the examining
attorney in determining whether to install an electronic
transceiver in a vehicle and participate in a “mayday
system.”
The examining attorney has also relied on a dictionary
definition of “mayday.” The dictionary definition of
record provides that “mayday” is “used by aircraft and
ships in distress.” However, applicant's identification of
goods includes the limitation “for … emergency road
service.” Also, the Internet evidence of record does not
concern use of the term in connection with aircraft or
ships. Thus, there is an incongruity between the
dictionary definition of record on one hand, and the
identified goods and the Internet articles on the other
hand.
The definition of “mayday” in Webster’s Third New
International Dictionary (1993), of which we take judicial
Serial No. 75719651
10
notice,5 is not limited to use by aircraft or ships; it
states: “an international radiotelephone signal word used
as a distress call, to introduce a distress message, or by
distress traffic.” Applicant too has stated that it
“readily agrees that this [“MAYDAY! MAYDAY!”] is an
international radiotelephone signal word used as a distress
call.” (Brief at p. 4.) Therefore, we find that “mayday”
is a term that one may use with an electronic transceiver
in seeking “emergency road service.” As such, “mayday,”
describes a feature of applicant's goods.
We next address applicant's argument, noted above,
that there are multiple meanings of “mayday” and that the
“consumer must employ some imagination, thought, or
perception to reach a conclusion as to the nature of
Applicant's goods ….” Applicant's argument is not
persuasive because the lists of Internet search results
which applicant relies on in support of its argument is not
particularly probative, as the excerpts that appear in such
lists are extremely truncated and we do not have the web
pages themselves from which to examine the context within
which the search terms are used. Also, as the examining

5 The Board may take judicial notice of dictionary definitions.
University of Notre Dame du Lac v. J. C. Gourmet Food Imports
Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).

Serial No. 75719651
11
attorney correctly notes, descriptiveness is considered in
relation to the identified goods, and the fact that a term
may have different meanings in other contexts is not
controlling on the question of descriptiveness. In re
Chopper Industries, 222 USPQ 258 (TTAB 1984).
Applicant has also argued that “the records of the
USPTO show a history of granting registration of the MAYDAY
mark in connection with ‘emergency’ goods and services and a
variety of other goods and services.” Applicant refers to
various third-party applications and registrations listed in
its response (filed January 31, 2000) to the first Office
action, and different third-party applications and
registrations listed in its reply brief.
Applications, however, are only evidence that an
applicant has filed for registration of a mark; thus, we do
not further consider any of the applications identified by
applicant. See In re Phillips-Van Heusen Corp., 63 USPQ2d
1047, 1049 n.4 (TTAB 2002).
As for the registrations listed by applicant in its
January 31, 2000 response, applicant has not provided copies
of the registrations during the prosecution of this case.
To make a third-party registration of record, a copy of the
registration, consisting of either a copy of the paper
USPTO record or a copy taken from the electronic records of
Serial No. 75719651
12
the Office, should be submitted. Mere listings of
registrations are not sufficient to make the registrations
of record.
However, there are limited circumstances in which the
Board will consider such listings. In particular, if an
applicant includes a listing of registrations in a response
to an Office action, and the examining attorney does not
advise applicant that the listing is insufficient to make
the registrations of record at a point when applicant can
correct the error, the examining attorney will be deemed to
have stipulated the registrations into the record. Because
the examining attorney was silent regarding applicant's
reliance on these registrations and did not advise
applicant that the listing is insufficient to make the
registrations of record, the registrations, namely,
Registration Nos. 1256677, 1996243, 2046413 and 2085329,
are considered of record. However, the Board will not
consider more than the information provided by applicant,
and if applicant has provided only a list of registrations
numbers, the list will have very limited probative value.
See TBMP § 1208.02 (2d ed. rev. 2004) and cases cited
therein. Applicant only provided a list of registration
numbers and stated “[t]he only common term is MAYDAY which
appears in numerous applications and registration ….”
Serial No. 75719651
13
Applicant did not, in its January 31, 2000 response,
identify what the marks which are the subject of the
registrations actually are, or even identify the goods or
services set forth in the registrations.6 Thus, the
registrations are of essentially no probative value.7
Also in its reply, applicant identified additional
applications and registrations which contain the term
MAYDAY and were not previously cited by applicant.
Applicant “requests that the Board take judicial notice” of
the applications and registrations. The Board does not
take judicial notice of applications and registrations.
See In re Duofold Inc., 184 USPQ 638 (TTAB 1974). These
applications and registrations are therefore given no
further consideration. See Trademark Rule 2.124(d).
In view of the foregoing, we conclude that, when used
in connection with applicant's goods, the term MAYDAY

6 Applicant, in its reply, identified the marks and subject
goods. To allow applicant to introduce this evidence in the last
paper filed in this case is patently unfair to the examining
attorney and the examination process. In view thereof, and
because pursuant to Trademark Rule 2.124(d) a record is to be
completed prior to an appeal, we do not give further
consideration to the additional information submitted by
applicant regarding these registrations in its reply brief.
7 Even if applicant had included copies of the registrations with
its response, we would not arrive at a different result. In re
Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir.
2001) ("Even if some prior registrations had some characteristics
similar to Nett Design's application, the PTO's allowance of such
prior registrations does not bind the Board or this Court.").

Serial No. 75719651
14
immediately describes, without conjecture or speculation, a
significant feature, use and function of the goods, namely,
that applicant's goods may be used in connection with
“mayday systems.”
Decision: The refusal to register the mark as merely
descriptive under Section 2(e)(1) of the Trademark Act is
affirmed.