FM Technologies, Inc.

Trademark Trial and Appeal Board

Jul 27, 2016

No. 86100919 (T.T.A.B. Jul. 27, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 27, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re FM Technologies, Inc.
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Serial No. 86100919
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Ansel M. Schwartz, Esq. for FM Technologies, Inc.

Shannon Twohig, Trademark Examining Attorney, Law Office 105,
Susan Hayash, Managing Attorney.
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Before Seeherman, Wolfson, and Pologeorgis, Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
FM Technologies, Inc. (“Applicant”) seeks registration on the Principal Register
of the mark 3D RAD (in standard characters) for “cancer treatment equipment using
an accelerator device” in International Class 10.1
The Trademark Examining Attorney refused registration under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that Applicant’s mark is
merely descriptive of Applicant’s identified goods.

1 Application Serial No. 86100919, filed October 24, 2013 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), alleging a bona fide intention to use the mark in commerce.
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When the refusal was made final, Applicant appealed and filed a request for
reconsideration. After the request for reconsideration was denied, the appeal was
resumed and Applicant and the Examining Attorney filed briefs.2 We affirm the
refusal.
A term is merely descriptive of goods 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. In re Chamber of Commerce of the U.S., 675
F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012). See also In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether a mark is merely descriptive is
determined in relation to the goods for which registration is sought and the context
in which the term is used or intended to be used, not in the abstract or on the basis
of guesswork. In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 218
(CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002). When two or more
merely descriptive terms are combined, the determination of whether the composite
mark also has a merely descriptive significance turns on the question of whether the
combination of terms evokes a non-descriptive commercial impression. If each
component retains its merely descriptive significance in relation to the goods, the
combination results in a composite that is itself merely descriptive. In re Oppedahl &
Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (PATENTS.COM
merely descriptive of computer software for managing a database of records that

2 Applicant’s February 10, 2016 “request for reconsideration” was treated as a request for
remand by the Board, and was denied in the Board’s order of February 16, 2016 because it
was not supported by a showing of good cause.
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could include patents, and for tracking the status of the records by means of the
Internet). See also In re Datapipe, Inc., 111 USPQ2d 1330 (TTAB 2014) (YOUR
CLOUD merely descriptive for computer storage services); In re Phoseon Technology
Inc., 103 USPQ2d 1822 (TTAB 2012) (SEMICONDUCTOR LIGHT MATRIX merely
descriptive for light and ultraviolet light curing systems for industrial and
commercial applications). On the other hand, a combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
non-descriptive meaning, or if the composite has a bizarre or incongruous meaning
as applied to the goods. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382
(CCPA 1968) (SUGAR & SPICE for “bakery products”); In re Shutts, 217 USPQ 363
(TTAB 1983) (SNO-RAKE for “a snow removal hand tool having a handle with a
snow-removing head at one end, the head being of solid uninterrupted construction
without prongs”). The analysis requires consideration of the possible significance that
the mark would have to the average purchaser of the goods in the relevant
marketplace. See In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219; In re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007).
Applicant’s goods are “cancer treatment equipment using an accelerator device.”
In response to a request for information under Trademark Rule 2.61(b), Applicant
described its equipment as including “a novel and compact self-bunching pulsed
electron beam source, the patented and proprietary micro-pulse gun (MPG)
technology suite.”3 Applicant explained how its goods, which “feature an x-band

3 August 11, 2014 Response to Office Action.
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electron linear accelerator (LINAC) as a radiation source for the treatment of cancer,”
differ from similar goods that use radiation to treat cancer:
Characteristic to all heretofore existing medical LINACs is
the use of a continuous current (DC) electron gun which
causes limitations such as system inefficiencies, shortened
gun/accelerator life, and undesirable stray x-ray
production. Moreover, the inability to rapidly vary the
accelerator energy results in increased radiation poisoning
(i.e., reduced dose accuracy) and generally longer exposure
time. In contrast, 3DRad™ utilizes a micro-pulsed electron
gun (MPG) at its core. This technology allows the overall
system to be compact and lightweight, and hence can be
easily moved and positioned using a small robotic arm.
3DRad™ can operate at various tunable energies, thereby
replacing the two medical accelerators with one of
improved performance.
3DRad™ is capable of higher energies at higher
frequencies and rapid energy change during patient
exposure, thus enabling a true conformal dose to the target,
as opposed to the adjustable depth limitation of existing
machines. The collective benefit of all these features is the
ability for the versatile 3DRad™ to deliver a true
conformal radiation dose that minimizes collateral damage
to healthy tissue, thus reducing morbidity and mortality.4
The Examining Attorney maintains that the mark is merely descriptive because
it uses three-dimensional pictures of a patient’s cancer to more accurately aim a dose
of radiation. In support, the Examining Attorney has submitted a dictionary
definition for the term “3D” that shows it is an abbreviation for “three dimensional;”5
a definition of “RAD” that shows that in the medical field it is an acronym for

4 Id.
5 At http://www.abbreviations.com/3D, attached to September 10, 2014 Office Action.
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“radiation absorbed dose;”6 or “radiate”7 and copies of pages from three websites using
the phrase “3D Conformal Radiation Therapy” to describe the 3D technique.
The excerpt from www.cancer.net describes 3D conformal radiation therapy as a
type of external-beam radiation therapy:
Three-dimensional conformal radiation therapy (3D-CRT):
As part of this treatment, special computers create detailed
three-dimensional pictures of the cancer. This allows the
treatment team to aim the radiation more precisely, which
means they can use higher doses of radiation while
reducing the risk of damaging healthy tissue. Studies have
shown that 3D-CRT can lower the risk of complications and
side effects, such as damage to the salivary glands (which
can cause dry mouth), when people with head and neck
cancer are treated with radiation therapy.8
The UPMC CancerCenter website states:
Conformal radiation therapy uses the targeting
information to focus precisely on the tumor, while avoiding
the healthy surrounding tissue. This exact targeting makes
it possible to use higher levels of radiation in treatment,
which are more effective in shrinking and killing tumors.
Three-dimensional conformal therapy is, in many ways,
similar to intensity-modulated radiation therapy (IMRT);
both are used to target cancer while sparing healthy
tissue.9
The Cancer Treatment Centers of America website lists “3D conformal radiation”
as a type of radiation therapy technique that “sculpts radiation beams to the shape

6 Id. A “radiation absorbed dose” is “a unit of measurement of the absorbed dose of ionizing
radiation; it corresponds to an energy transfer of 100 ergs per gram of any absorbing material
(including tissues).” At http://search.credoreference.com, attached to December 4, 2015
Reconsideration Letter, 5 TTABVUE 6. See also In re Digirad Corp., 45 USPQ2d 1841, n.10
(Comm’r Pat. 1998) (confirming definition of RAD).
7 At http://www.abbreviations.com, attached to September 10, 2014 Office Action.
8 From http://www.cancer.net, attached to April 15, 2015 Office Action.
9 At http://www.upmccancercenter.comlradonc/conformal.cfm, attached to April 15, 2015
Office Action.
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of a tumor, [which] is ideal for tumors that have irregular shapes or that lay close to
healthier tissues and organs.”
Using this radiation technology, we’re first able to view a
tumor in three dimensions with the help of image guidance.
Based on these images, we then deliver radiation beams
from several directions to the tumor.
Matching the radiation dose to the exact dimensions of the
tumor allows us to deliver a higher dose, while limiting
radiation exposure to surrounding healthy tissues.
This technique has been largely incorporated into intensity
modulated radiation therapy (IMRT).10
Based on this evidence, the Examining Attorney contends that the mark is merely
descriptive of “a type of 3D radiation treatment.”11
Applicant argues that the Examining Attorney mistakenly assumes that the
goods have to do with imaging, but that, in fact, “the goods associated with the mark
do not provide 2D nor 3D imaging. There is no image whatsoever. The goods are for
the treatment of cancer. No image is formed.”12 Nonetheless, in response to the
Examining Attorney’s question “How will the goods function?” Applicant replied:
“3DRad™ will provide cancer treatment by radiation with integrated imaging.”13
Applicant further argues that the mark creates an ambiguity or incongruity when
the terms “3D” and “RAD” are combined since “there is no clue what the goods are
[that are] associated with the mark.”14 Applicant also asserts that “3D RAD does not

10 From http://www.cancercenter.com, attached to April 15, 2015 Office Action.
11 11 TTABVUE 4.
12 9 TTABVUE 3.
13 August 11, 2014 Response to Office Action.
14 9 TTABVUE 4.
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indicate anything about the associated goods, it is believed the Examiner is trying to
associate some form of the result of the goods, but not of the goods themselves.”15
However, the question is not whether someone presented only with the mark could
guess the goods listed in the identification. Rather, the question is whether someone
who knows what the goods are will immediately understand the mark to convey
information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695
F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012), quoting In re Tower Tech, Inc.,
64 USPQ2d 1314, 1316-1317 (TTAB 2002).
Here, there is nothing incongruous about the proposed mark; rather, the mark as
a whole immediately describes a characteristic or feature of the goods, namely, that
Applicant’s equipment delivers radiation absorbed doses (RADs) in a 3D conformal
radiation environment.16 Indeed, Applicant touts its equipment as superior for the
reason that it utilizes a micro-pulsed electron gun (MPG) capable of delivering “a true
conformal radiation dose that minimizes collateral damage to healthy tissue, thus
reducing morbidity and mortality.”17 From “the perspective of a prospective
purchaser or user” of Applicant’s goods, “because … the combination of the terms does
not result in a composite that alters the meaning of [any] of the elements … refusal
on the ground of descriptiveness is appropriate.” In re Petroglyph Games, 91 USPQ2d
at 1341.

15 Id.
16 In light of the specific application of the term to the field of radiology, the connotation of
“rad” would not be seen, as Applicant suggests, as an abbreviation for the term “radical.” 9
TTABVUE 3.
17 August 11, 2014 Response to Office Action.
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Accordingly, we find that the mark 3D RAD will immediately convey to
prospective customers of Applicant’s radiation therapy equipment that the
equipment is integrated with three-dimensional imaging to deliver radiation doses.
The proposed mark 3D RAD is therefore merely descriptive of “cancer treatment
equipment using an accelerator device.”
Decision: The refusal to register is affirmed.