Calcar Advertising Inc.

Trademark Trial and Appeal Board

Apr 3, 2001

No. 75359413 (T.T.A.B. Apr. 3, 2001)

04/03/01 Paper No. 11
RLS/TLC
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Calcar Advertising Inc.
________
Serial No. 75/359,413
_______
Daniel M. Cavanagh of Christie Parker & Hale LLP for Calcar
Advertising Inc.
Karla Perkins, Trademark Examining Attorney, Law Office 102
(Thomas Shaw, Managing Attorney).
_______
Before Simms, Cissel and Hanak, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Calcar Advertising Inc. (applicant), a California
corporation, has appealed from the final refusal of the
Trademark Examining Attorney to register the mark 911
DIGITAL REQUEST for the service of the electronic
transmission of emergency service requests containing
latitude and longitude information and personalized data to
a global computer network.1
1 Application Serial No. 75/359,413, filed September 18, 1997,
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/359,413
2
The Examining Attorney has refused registration under
Section 2(e)(1) of the Act, 15 USC §1052(e)(1), arguing
that applicant’s mark merely describes the feature,
characteristic or function of applicant’s electronic
transmission of emergency requests. Applicant and the
Examining Attorney have submitted briefs, but no oral
hearing was requested.
We affirm.
We note initially that the Examining Attorney also
required a disclaimer of the word “DIGITAL,” which
applicant submitted. However, in the next Office action,
while continuing the refusal under Section 2(e)(1), the
Examining Attorney stated that the disclaimer was
“unnecessary.” Accordingly, applicant withdrew the
disclaimer. Thus, the issue of a disclaimer of part of the
mark is not before us.
Relying upon excerpts from the Nexis computer search
system as well as dictionary definitions,2 the Examining
Attorney argues that “911” is synonymous with emergency
2 These dictionary definitions were submitted with the Examining
Attorney’s brief. The Examining Attorney requests that the Board
take judicial notice of these definitions. We shall do so. See
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983). One of these definitions of “911” indicates
that it is a noun meaning “an emergency [US telephone code for
emergencies, the equivalent of the UK 999]. The Cassell
Dictionary of Slang (1998).
Serial No. 75/359,413
3
service and that applicant’s proposed service involves the
transmission of emergency requests. Because applicant’s
service involves the transmission of emergency service
requests in electronic or digital form, the Examining
Attorney contends that applicant’s mark literally means
emergency digital requests. The Examining Attorney
contends that no imagination is needed to determine from
the proposed mark what the attributes of applicant’s
services are and that, even though one might not know from
applicant’s mark that applicant’s service involve the
transmission of data concerning latitude and longitude,
applicant’s mark is nevertheless merely descriptive. In
this regard, the Examining Attorney contends that a mark
need not describe every feature or aspect of a service in
order for it to be merely descriptive.
Although much of the Examining Attorney’s evidence
from the Nexis database involves stories of people dialing
(or pressing) the number 911, there are also the following
excerpts, showing that 911 is used to refer to an emergency
operation:
Cops showed up after Aracelis Pizarro made
four calls to 911, reporting that her
husband had put a gun to her head and hit
her with a bag containing two 40-ounce beer
bottles.
The New York Post, January 31, 2000
Serial No. 75/359,413
4
*****
Firefighters were called to the man’s
trailer home in Virginia Township about 4:47
a.m. after receiving a 911 call that a
trailer was on fire.
The Columbus Dispatch, January 30, 2000
*****
When deputies arrived they found a crowd
estimated at 150 people nearby. However, no
one, including the anonymous person who
alerted 911, was willing to come forward to
tell deputies what happened…
Press Journal, January 23, 2000
It is applicant’s position that, at most, its mark
only suggests the nature and class of applicant’s services.
Initially, applicant argued that a consumer would
automatically associate its mark with services related to
getting emergency assistance by dialing 911, but that
applicant’s services are not related to the emergency
service accessed by dialing 911. Subsequently, applicant
argued that, by using its services, a user may simply press
only one button on a cell phone or a laptop computer to
send a signal to an emergency service that forwards the
user’s longitude and latitude and other information to an
emergency service. Applicant states that its service does
not actually electronically submit the emergency service
request. Instead, the user initiates the transmission
requesting assistance. Applicant argues that the mark does
Serial No. 75/359,413
5
not describe what the service actually is, but only how the
user can make use of applicant’s services. According to
applicant, under the Examining Attorney’s reasoning, the
mark at most describes a single feature of its services.
However, applicant maintains that the mark is not merely
descriptive because it requires a degree of imagination or
reasoning in order to determine from the mark precisely
what characteristics applicant’s services possess--the
transmission of latitude and longitude information as well
as other personal information. Applicant requests that we
resolve any doubts on the issue of descriptiveness of its
asserted mark in its favor.
Upon careful consideration of this record and the
arguments of the attorneys, we agree with the Examining
Attorney that applicant’s asserted mark is merely
descriptive of its services. Applicant’s services involve
the electronic or digital transmission of emergency
requests. The asserted mark 911 DIGITAL REQUEST merely
describes the fact that applicant’s service involves the
digital transmission of emergency requests. While it is
true that applicant’s mark does not describe all of the
details of applicant’s services, such as the fact that its
service will transmit latitude and longitude information as
well as other data, the mark is merely descriptive of the
Serial No. 75/359,413
6
essential feature or characteristic of applicant’s
services. That is to say, the mark describes the feature
that applicant’s service involves the transmission of
digital requests for emergency service.
The cases applicant has cited, such as those involving
the marks DRIVING FORCE and AIR-CARE, are distinguishable.
Those marks involved suggestive elements not possessed in
applicant’s mark.
Decision: The refusal of registration is affirmed.