Exponential Interactive, Inc.

Trademark Trial and Appeal Board

Sep 19, 2008

No. 77264037 (T.T.A.B. Sep. 19, 2008)

Mailed:
September 19, 2008
jtw

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Exponential Interactive, Inc.
________

Serial No. 77264037
_______

Lee Hagelshaw of Tech Law for Exponential Interactive, Inc.

Emily K. Carlsen, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Grendel, Rogers and Walsh, Administrative Trademark
Judges.

Opinion by Walsh, Administrative Trademark Judge:

Exponential Interactive, Inc. (applicant) has applied
to register the mark Dynamic Ads in standard characters on
the Principal Register for services identified as
“advertising and marketing services, promoting the goods
and services of others through placement, targeting, and
distribution of advertising via the Internet and other
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 77264037
2
means of communication” in International Class 35.1
Applicant has disclaimed “Ads.”
The Examining Attorney has finally refused
registration on the grounds that Dynamic Ads merely
describes the identified services. Applicant has appealed.
Applicant and the Examining Attorney have filed briefs. We
affirm.
Before addressing the merits of the case we must
address objections applicant has raised with respect to
certain evidence. In its main brief applicant objected to
several pieces of evidence the Examining Attorney provided
on the grounds that the evidence was not relevant. In its
reply brief applicant again argues that we should exclude
the evidence on the same grounds, and also because the
Examining Attorney failed to address the objections in her
brief. Applicant’s objections on the ground of relevance
go to the weight of the evidence rather than its
admissibility, and we will therefore consider the evidence
for whatever probative value it may have. Furthermore, in
this ex parte proceeding we decline to exclude evidence
because the Examining Attorney may not have addressed the
objection specifically in her brief.

1 Application Serial No. 77264037, filed August 24, 2007, asserting
first use of the mark anywhere and first use of the mark in commerce on
March 23, 2007.
Serial No. 77264037
3
Applicant objected to one specific article from
Brunico Communications attached to the Final Office Action
of April 4, 2008, on the grounds that it concerns the
market in Canada; it also appears to be a publication from
Canada. This objection is well taken. On this record, we
have no basis to conclude that this publication reflects
the public understanding of the significance of Dynamic Ads
in the United States. Accordingly, we have not considered
this article in reaching our decision here.
We now turn to the merits. A term is 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. See,
e.g., In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009
(Fed. Cir. 1987); and In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 217-18 (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 or function of the
goods or services. See In re H.U.D.D.L.E., 216 USPQ 358,
359 (TTAB 1982); and In re MBAssociates, 180 USPQ 338, 339
(TTAB 1973).
Serial No. 77264037
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Whether a term is merely descriptive is determined not
in the abstract, but in relation to the goods or services
identified in the application, and the possible
significance that the term would have to the average
purchaser of the goods or services. In re Polo
International Inc., 51 USPQ2d 1061, 1062 (TTAB 1999); In re
Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
The Examining Attorney argues, “The term DYNAMIC ADS
or DYNAMIC ADVERTISING is commonly used to refer to a form
of advertising that feature interactive or ‘live’ ads that
can be updated for a particular audience or changed so that
the consumer does not see duplicate ads – in other words
targeted interactive advertising.” Examining Attorney’s
Brief at 3.
Applicant acknowledges that “Ads,” which it
disclaimed, is shorthand for advertising. Applicant argues
that Dynamic Ads is not a term of art in the online
advertising industry because it lacks a singular, defined
meaning. Applicant points out that during the prosecution
of the application the Examining Attorney posited two
different meanings – in the Office Action of December 12,
2007, “targeted Internet-based advertising campaigns,” and
in the Office Action of April 4, 2008, “updated commercial
messaging from a live advertising campaign.” Applicant’s
Serial No. 77264037
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Brief at 6. Applicant then argues that Dynamic Ads is
suggestive because it has no specific, merely descriptive
meaning, particularly as applied to the services applicant
provides.
The Examining Attorney provided evidence in support of
her position, including the following:
• An article from the Lowell Sun (Mass.)
discusses “smart,” sophisticated, computer-
enabled shopping carts, which include a
screen display. The article describes
various features of the technology and
states, “As one might guess, smart carts
feature content-rich dynamic advertising,
based not only on the day’s purchases, but
also a customer’s saved data from previous
visits.” Attachment to December 12, 2007
Office Action (emphasis added).

• An entry from the Wikipedia online
encyclopedia displayed through google.com
discusses both static and dynamic in-game
advertising in the online computer-game
field. It states, “Increasingly Internet
connectivity has led to the growth of
dynamic in-game advertising. Unlike the
fixed adverts found in static, in-game ads,
dynamic adverts can be altered…” Id.
(emphasis added).

• An article from Consumer Electronics Daily
also discusses online video games and the
use of dynamic in-game advertising. It
states, “Dynamic ads can be changed remotely
via an in-game ad agency, unlike fixed in-
game ads. … ‘Dynamic in-game advertising is
an important growth area for our business,
and is one of the many opportunities we are
pursuing in growing the advertising
market.’” Attachment to April 4, 2008
Office Action (emphasis added).

Serial No. 77264037
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• An article from the Detroit Free Press also
discusses the use of “DYNAMIC ADS” in online
video games. Id. (emphasis added).

• An article from clicz.com entitled “Creating
Dynamic Ads on the Fly” states, “On-the-fly
content personalization and user behavior
profiling have enjoyed a fair share of
Internet hype, but how can agencies use
these techniques to create real world
campaigns. … Both technologies have their
pros and cons, but do offer advertisers the
ability to create dynamic ads on the fly. …
Freestyle put together an example to show
how a fictitious airline might use a dynamic
ad.” Attachment to December 12, 2007 Office
Action (emphasis added). The article then
proceeds to explain how a dynamic ad, in
banner form, can be set up to display the
current ticket price and to change the
price, as appropriate.

• An article from Business Week Online states,
“On its corporate blog late yesterday,
Google YouTube Unit says it has started to
work with select partners to offer new video
advertising. Semi-transparent and sometimes
dynamic ads in the bottom portion of some
videos. The ads are displayed about 15
seconds after the videos begin and disappear
about 10 seconds later, unless users click
on them.” Attachment to April 4, 2008
Office Action (emphasis added).

Applicant explains that its service “… allows the
advertiser to tailor its message to audiences in different
geographic locations.” Applicant’s Brief at 3. Applicant
argues further that none of the examples provided by the
Examining Attorney do this.
Serial No. 77264037
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We find applicant’s arguments unpersuasive. The
totality of the evidence here is more than sufficient to
show that Dynamic Ads merely describes a broad and
expanding type of advertising service offered over the
Internet or through other technologies where the content of
the ad is tailored to the user or otherwise changes to fit
the requirements of the advertiser. The targeted
advertising services identified in the application, and
discussed in applicant’s specimen, are well within the
general type of service which Dynamic Ads has come to
describe. Goodyear Tire & Rubber Co. v. Continental
General Tire Inc., 70 USPQ2d 1067 (TTAB 2003) (INTELLIGENT
held merely descriptive of tires); In re Tower Tech, Inc.,
64 USPQ2d 1314, 1317 (TTAB 2002) (SMARTTOWER merely
descriptive of commercial and industrial cooling towers);
In re Cryomedical Sciences Inc., 32 USPQ2d 1377 (TTAB 1994)
(SMARTPTOBE held merely descriptive of one-time use,
disposable cryosurgical probes). Like “intelligent” and
“smart,” “dynamic” is a term which lends itself to broad
descriptive application in a field, such as online or
electronic advertising, or even in multiple fields.
Applicant argues that the absence of a dictionary
definition for Dynamic Ads suggests that it is mot merely
descriptive. Of course, the mere absence of a dictionary
Serial No. 77264037
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definition for a term does not lead to the conclusion that
the term is not merely descriptive. In re Dahlquist, Inc.,
1932 USPQ 237 (TTAB 1976); In re Orleans Wines, Ltd., 196
USPQ 516 (TTAB 1977). Furthermore, we have consulted
relevant dictionaries and found in Advertising Media A - Z
(2004) definitions of the following terms:
Dynamic ad placement - The Process of inserting
an advertisement into a web page in response to
the user’s request – that is, the user clicked on
something on the web page to request the
advertisement.

Dynamic Content - Content on a website or Web
page that changes often whereby successive clicks
on the site or page (for example, daily) will
reveal revised or different content.

Dynamic Rotation – The delivery of ad banners on
a rotating or random basis as opposed to static
placement of an ad on the same page all the time.
This offers the potential for each user to see a
different message and for ads to be seen in more
than one place on a website.2

These definitions, dating from no later than 2004,
illustrate that “dynamic” had been used and understood by
advertisers to describe online ads with changing content.
Applicant’s use of “dynamic” in relation to its services,
and those uses shown in the evidence here, reflect the

2 The Board may take judicial notice of dictionary definitions. See
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. 77264037
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evolving and expanding use of “dynamic” to describe a broad
type of advertising. Accordingly, we reject applicant’s
argument regarding the asserted absence of dictionary
entries.
We also reject applicant’s argument that some degree
of imagination is required to discern the descriptive
meaning of Dynamic Ads as applied to applicant’s particular
services. On the contrary, the meaning is readily apparent
in view of the other uses of “dynamic,” “dynamic
advertising” and “dynamic ads” as applied to online or
electronic ads which are targeted, tailored or otherwise
changing. In re Hunter Fan Co., 78 USPQ2d 1474 (TTAB 2006)
(ERGONOMIC held merely descriptive of ceiling fans). The
fact that applicant uses the device to target different ads
to particular geographic locations is entirely consistent
with the other descriptive uses. It is not reasonable to
expect that potential advertisers will view “Dynamic Ads,”
as applied to Applicant’s services, as a source indicator
in view of this evidence. More importantly, the evidence
shows that “Dynamic Ads” has been used to describe targeted
advertising as identified in the application, whether or
not it has been applied to ads targeted to geographic
locations, a limitation not specified in applicant’s
identification of services.
Serial No. 77264037
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Applicant also argues there is no competitive need to
use Dynamic Ads because competitors, such as Google and
Microsoft, which offer similar advertising programs, do not
use Dynamic Ads in describing their services. We reject
this argument. Even if applicant were the first to use
Dynamic Ads for its specific service, we would not
conclude, on that basis, that Dynamic Ads was not merely
descriptive. In re Acuson, 225 USPQ 790 (TTAB 1985)
(COMPUTED SONOGRAPHY held merely descriptive of ultrasonic
imaging instruments); In re National Shooting Sports
Foundation, Inc., 219 USPQ 1018 (TTAB 1983) (SHOOTING,
HUNTING, OUTDOOR TRADE SHOW AND CONFERENCE held generic for
conducting and arranging trade shows in the hunting,
shooting and outdoor sports products field).
Applicant also provided examples of uses of “dynamic
advertising” in relation to advertising programs where
“dynamic” is simply used to indicate that the program is
energetic, active, vigorous or forceful. These laudatory
uses of “dynamic,” which may also be descriptive, in no way
contradict our conclusion here that Dynamic Ads, as used in
the context of applicant’s identified services, is merely
descriptive. In re IP Carrier Consulting Group, 84 USPQ2d
1028, 1034 (TTAB 2007). Accordingly, we find this evidence
unpersuasive.
Serial No. 77264037
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Finally, after considering all of the evidence and
arguments presented, including those we have not discussed
specifically, we conclude that DYNAMIC ADS is merely
descriptive of “advertising and marketing services,
promoting the goods and services of others through
placement, targeting, and distribution of advertising via
the Internet and other means of communication.”
Decision: We affirm the refusal to register DYNAMIC
ADS on the grounds that it is merely descriptive under
Trademark Act Section 2(e)(1).