CloudTree, Inc.Download PDFTrademark Trial and Appeal BoardAug 13, 2013No. 85524715 (T.T.A.B. Aug. 13, 2013) Copy Citation Mailed: August 13, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re CloudTree, Inc. ________ Serial No. 85524715 _______ Matthew H. Swyers of The Trademark Company for CloudTree, Inc. Kathleen Kearney, Trademark Examining Attorney, Law Office 113 (Odette Bonnet, Managing Attorney). _______ Before Holtzman, Cataldo and Taylor, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: Applicant, CloudTree, Inc., seeks registration on the Principal Register of the standard character mark CLOUD- NATIVE for “downloadable software for management of cloud databases and cloud datastores,” in International Class 9.1 Applicant appeals the final refusal of registration on the ground that the mark is merely descriptive of the 1 Application Serial No. 85524715 was filed on January 25, 2012 based on an allegation of a bona fide intent to use the mark in commerce. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Ex Parte Appeal No. 85524715 2 identified goods. Trademark Act § 2(e)(1); 15 U.S.C. § 1052(e)(1). A term is merely descriptive if it immediately conveys knowledge of a significant quality, characteristic, function, feature or purpose of the goods or services with which it is used. See, e.g., In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); and In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009-10 (Fed. Cir. 1987). Whether a particular term is merely descriptive is determined in relation to the goods or services for which registration is sought and the context in which the term is used, not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); and In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002). In other words, the issue is whether someone who knows what the goods or services are will understand the mark to convey information about them. DuoProSS Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002); In re Patent & Trademark Servs. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In re Home Builders Ass’n of Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990); and In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). “On the Ex Parte Appeal No. 85524715 3 other hand, if one must exercise mature thought or follow a multi-stage reasoning process in order to determine what product or service characteristics the term indicates, the term is suggestive rather than merely descriptive.” In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003); In re Tennis in the Round, Inc., 199 USPQ 496, 497 (TTAB 1978); In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983); and In re Universal Water Sys., Inc., 209 USPQ 165, 166 (TTAB 1980). In support of the refusal, the examining attorney made of record the following definition of “cloud” - a.k.a the cloud – which refers to a style of computing in which dynamic, scalable and virtual resources are provided over the Internet. Known as cloud computing, it refers to services that provide common business applications online, which are accessed from a Web browser, while the software and data are stored on the servers.2 The examining attorney also made of record articles retrieved from Internet webpages, reflecting use of CLOUD- NATIVE by third parties. Excerpts from these webpages follow (emphasis added): What makes a ‘cloud native’ application? Cloud computing has a lot to offer a service- oriented architecture. … But to get the most bang for your buck out of cloud computing, your application infrastructure needs to be optimized for these sorts of architectures…. In other 2 Netlingo.com Ex Parte Appeal No. 85524715 4 words, the application infrastructure needs to be designed for a cloud environment rather than packaged up and ported onto it.3 A Cloud Native Application is architected and designed to run on what is commonly referred to as a cloud IaaS or Paas. … It is architected and designed to run in the cloud from the beginning.4 Cloud Native In other words, what do middleware and applications need to do to be “Cloud Native.” … If a system is distributed then it can be made to be elastic. This seems to be the attribute of cloud native that everyone thinks of first. … A cloud native application or middleware needs to be able to support multiple isolated tenants within the system. This is the ability of Software-as-a-Service to handle multiple copies of an application each in a Virtual Machine. … I strongly believe that it is only once a system really implements these attributes that it starts to give the full benefits of running in a cloud. And the benefits of “Cloud Native” systems are immense: better utilization of resources, faster provisioning, better governance. It’s probably a whole ‘nother blog post to go into the full benefits of having cloud native software!5 Cloud Native Applications I’ve always believed that cloud computing is really two things. One, it is a technology architecture. Two, it is a business operating paradigm that we often call on-demand. Your application must satisfy the on-demand business model requirements, satisfy the technical architecture requirements to be a cloud native application. There are not very many cloud native applications running in the world today. This is changing quickly. 3 Itknowledgeexchange.techtarget.com 4 Productionscale.com 5 Prz.fremantle.org Ex Parte Appeal No. 85524715 5 I think that Cloud Native Applications are essentially distributed computing applications.6 Applicant, for its part, made of record dictionary definitions of “cloud” and “native” that are unrelated to computer goods as well as copies of third-party registrations containing the term CLOUD or NATIVE, but not both, for various computer goods. These include registrations for the marks CLICK TO CLOUD; CLOUDLINK; CLOUDSWITCH; CLOUDSIGMA; CLOUDBURST, CLOUDFUZION; DEVICE NATIVE (DEVICE disclaimed); NATIVAS; WEBNATIVE; and NATIVE UNION. In this case, applicant’s mark is CLOUD-NATIVE and the goods identified in the application are “downloadable software for management of cloud databases and cloud datastores.” The examining attorney’s evidence supports a finding that the term “cloud native” or “cloud-native” merely describes computer software designed to provide business applications on the Internet, with data itself stored on servers. Thus, we find that, as applied to applicant’s goods, the term CLOUD-NATIVE would immediately describe, without conjecture or speculation, a significant characteristic or feature of such goods, namely, that they manage databases and datastores for cloud computing 6 Productionscale.com Ex Parte Appeal No. 85524715 6 applications. In addition, the Internet articles submitted by the examining attorney establish that the ability of the goods identified by applicant’s CLOUD-NATIVE mark to manage databases and datastores of information obtained over the Internet through cloud computing is a desirable and central feature thereof. Material obtained from the Internet is acceptable in ex parte proceedings as evidence of potential public exposure to a term. See In re Fitch IBCA, Inc., 64 USPQ2d 1058 (TTAB 2002). We note that the descriptive nature of applicant’s mark as applied to its goods is not diminished by the fact that the term comprising the mark may also have other meanings unrelated to those goods. That a term may have other meanings in different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ at 593. We further note that we have considered the third-party registration evidence submitted by applicant. These registrations, containing the terms CLOUD or NATIVE, with or without a disclaimer thereof, cover a wide range of computer goods, some of which are related to the goods involved in this application. These registrations are not of assistance in determining whether the mark CLOUD-NATIVE is merely descriptive, particularly inasmuch as we do not know the reason for the treatment of the term “CLOUD” or “NATIVE” in Ex Parte Appeal No. 85524715 7 each. In re International Taste Inc., 53 USPQ2d 1604, 1606 (TTAB 2000) (“With respect to third-party registrations which include disclaimers...we do not have before us any information from the registration files as to why an Examining Attorney required and/or why the applicant/registrant offered such disclaimers.”). See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)(“Even if some prior registrations had some characteristics similar to [applicant’s] application, the PTO’s allowance of such prior registrations does not bind the board or this court.”); and In re Scholastic Testing Service, Inc., 196 USPQ 517 (TTAB 1977). We have carefully considered all of the evidence and argument of record, including any which we have not specifically addressed. Based upon the evidence, we conclude that applicant’s mark, CLOUD-NATIVE, is merely descriptive of its identified goods. Trademark Act § 2(e)(1). Decision: The refusal to register is affirmed and registration to applicant is refused. Copy with citationCopy as parenthetical citation