AtNoCost.Com

Trademark Trial and Appeal Board

May 24, 2001

No. 75776887 (T.T.A.B. May. 24, 2001)

5/24/01 Paper No. 12
CEW
UNITED ST
Trade
Malcolm B. Wittenbe
AtNoCost.Com.
Jessie W. Billings,
103 (Dan Vavonese,
Before Hohein, Walt
Judges.
Opinion by Walters,
AtNoCost.Com h
register the mark N
data regarding cons
network.”1
The Trademark
refusal to register

1 Serial No. 75/776,887
1999, based on an alleg
commerce.
IS NOT
THIS DISPOSITION
CITABLE AS PRECEDENT
OF THE T.T.A.B.ATES PATENT AND TRADEMARK OFFICE
___________
mark Trial and Appeal Board
___________
In re AtNoCost.Com
___________
Serial No. 75/776,887
___________
rg of Crosby, Heafey, Roach & May for
Trademark Examining Attorney, Law Office
Acting Managing Attorney).
____________
ers and Rogers, Administrative Trademark
Administrative Trademark Judge:
as filed a trademark application to
OCOST.COM for, as amended, “gathering
umer goods over a worldwide computer
Examining Attorney has issued a final
, under Section 2(e)(1) of the Trademark

, in International Class 35, filed August 16,
ation of a bona fide intention to use the mark in
Serial No. 75/776,887
2
Act, 15 U.S.C. 1052(e)(1), on the ground that applicant’s
mark is merely descriptive of its services.2
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm the refusal to register.
The Examining Attorney contends that “the term ‘no
cost’ means that the goods or services being provided are
being provided for free”; and that this describes a
characteristic of applicant’s services, i.e., that they are
being provided at no cost to the consumer. The Examining
Attorney states the following:
A consumer encountering the mark NOCOST.COM will
assume that free services will be provided at the
web site. The consumer will in fact be given free
product samples, as conceded by the applicant
(Applicant’s Brief p. 5). Data will also be
gathered. The consumers will not be charged for
submitting this data. The applicant has not
argued that there will be fees of any type charged
at the web site. Therefore, any services provided
to the consumer on the web site will be provided
at “no cost.”
In support of her position, the Examining Attorney
submitted excerpts of articles from the LEXIS/NEXIS
database. The excerpts demonstrate that consumers are used

2 Applicant’s original recitation of services was “gathering data and
offering samples of consumer goods over a worldwide computer network.”
In response to the Examining Attorney’s requirement to amend its
recitation of services, applicant adopted as a recitation “dissemination
of advertising and free samples of goods for others and gathering
demographic information for the advertisers via an on-line electronic
communications network.” Following the issuance of a final refusal on
the ground that the mark is merely descriptive in connection with the
identified services, applicant further amended the recitation as
indicated herein. The Examining Attorney accepted this amendment.
Serial No. 75/776,887
3
to seeing reference to the availability of samples of
various products at “no cost,” meaning that the samples are
available for free.
Applicant does not contest the Examining Attorney’s
contention that “no cost” is synonymous with “free.”
Further, applicant describes its services as follows:
Applicant’s business model is to employ the world
wide web in order to gather demographic
information for manufacturers of consumer goods by
attracting consumers to applicant’s web site by
offering free samples on behalf of those
manufacturers seeking such information.
Specifically, in exchange for receiving free
samples of desirable consumer goods, those logging
on to applicant’s web site are asked to fill in
one or more forms requesting information regarding
consumer preference for one product over another
as well as a consumer’s buying habits and what
characteristics of which goods are considered by
the consumer to be important in making purchasing
decisions.
Applicant expressly “concedes that, in commerce,
applicant does provide free samples to participants engaged
in providing demographic information to applicant over its
website.” However, applicant argues that registrability
must be determined solely on the basis of the recited
services and that, in this case, applicant has amended its
recitation of services to delete reference to the fact that
it gives away free samples in exchange for data obtained
from consumers.
The test for determining whether a mark is merely
descriptive is whether the involved term immediately conveys
Serial No. 75/776,887
4
information concerning a significant quality,
characteristic, function, ingredient, attribute or feature
of the product or service in connection with which it is
used, or intended to be used. In re Engineering Systems
Corp., 2 USPQ2d 1075 (TTAB 1986); In re Bright-Crest, Ltd.,
204 USPQ 591 (TTAB 1979). It is not necessary, in order to
find a mark merely descriptive, that the mark describe each
feature of the goods or services, only that it describe a
single significant quality, feature, etc. of the goods or
services. In re Venture Lending Associates, 226 USPQ 285
(TTAB 1985). Further, it is well-established that the
determination of mere descriptiveness 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 mark is used, and the impact that
it is likely to make on the average purchaser of such goods
or services. In re Recovery, 196 USPQ 830 (TTAB 1977).
We conclude, first, that “.com” has no source-
indicating function, because it is merely an indication of a
portion of an address on the Web. Additionally, the
evidence establishes that the NOCOST portion of applicant’s
mark will be understood as synonymous with the word “free.”
This is especially so since such portion would have no other
readily discernable significance.
Serial No. 75/776,887
5
We agree with the Examining Attorney that consumers are
likely to understand, from the term NOCOST.COM, that
applicant offers something free, specifically, samples of
goods, through its web site; and, moreover, that this is a
significant characteristic of applicant’s services. While
applicant has amended its recitation of services to delete
reference to the fact that it gives away free samples of
products, applicant concedes that this is an aspect of its
services. This fact is not negated merely because the
recitation of services does not specify this aspect of
applicant’s services – it is clear that the offering of free
samples is encompassed within the services as identified.
As applicant notes, applicant obtains its demographic data
in exchange for the free samples it offers its customers.
In the present case, it is our view that, when applied
to applicant’s services, the term NOCOST.COM immediately
describes, without conjecture or speculation, a significant
feature or characteristic of applicant’s services, namely,
that it offers sample products at “no cost,” or “for free.”
Nothing requires the exercise of imagination, cogitation,
mental processing or gathering of further information in
order for prospective customers for applicant’s services to
readily perceive the merely descriptive significance of the
term NOCOST.COM as it pertains to applicant’s services. See
In re Dial-A-Mattress Operating Corporation, No. 00-1197
Serial No. 75/776,887
6
(Fed. Cir. decided February 13, 2001) [“Although ‘1-888-M-A-
T-R-E-S-S’ is not generic for a service offering mattresses
by telephone, [it is merely descriptive because] it
immediately conveys the impression that a service relating
to mattresses is available by calling the telephone
number.”)
Decision: The refusal under Section 2(e)(1) of the Act
is affirmed.