Gregory L. Chester

Trademark Trial and Appeal Board

May 20, 2014

No. 85220392 (T.T.A.B. May. 20, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: May 20, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Chester
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Serial No. 85220392
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Gregory L. Chester, DBA GLC New Product Consultants, Inc., pro se.

Nicholas A. Coleman, Trademark Examining Attorney, Law Office 115 (John
Lincoski, Managing Attorney).
_____

Before Quinn, Bucher, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Gregory L. Chester (Applicant) has appealed the final refusal to register the
applied-for term, SpiderGraph, on the Principal Register for “printed material,
namely, printed graphs and charts for use in the comparison and analysis of
alternative choices in decision-making applications” in Class 161 on the ground that

1 Application Ser. No. 85220392 filed on the Supplemental Register on January 18, 2011;
amended to the Principal Register on July 21, 2011, based on Section 1(a) of the Trademark
Act, alleging first use anywhere on January 17, 1985 and first use in commerce on March
17, 1986.

Serial No. 85220392
2
the applied for term is merely descriptive under Section 2(e)(1) of the Trademark
Act, 15 U.S.C. §1052(e)(1).
The application was filed on the Supplemental Register. Registration was
refused on February 10, 2011, pursuant to Section 23 of the Trademark Act, 15
U.S.C. § 1091 on the ground that the applied for term was generic and incapable of
functioning as a trademark. On July 21, 2011, Applicant amended the application to
the Principal Register.2 Thereafter, on August 15, 2011, registration was refused
pursuant to Section 2(e)(1) on the ground that the mark is merely descriptive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Trademark Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
In his brief, Applicant argues that he owned a prior registration for the same
mark and the same goods3 and that because the mark was deemed registrable by
the prior Examining Attorney, the descriptiveness refusal is inappropriate.
Applicant’s reliance on this registration is misplaced. “[A]lthough a term at its
inception or adoption may have been arbitrary or even suggestive in character, it
may thereafter through use in a descriptive sense over a period of time lose its
distinguishing and origin denoting characteristics and be regarded by the relevant
section of the purchasing public as nothing more than a descriptive designation

2 In the Office Action dated August 15, 2011, the Examining Attorney accepted the
Applicant’s amendment to the Principal Register and the refusal to register on the
Supplemental Register pursuant to Section 23 essentially was vacated.
3 Reg. No. 2688910 issued on February 18, 2003 and was cancelled on September 26, 2009
for failure to file a Section 8 Declaration of Use.
Serial No. 85220392
3
describing rather than identifying the goods on which it has been used.” In re
Digital Research, Inc., 4 USPQ2d 1242, 1243 (TTAB 1987), citing In re Int’l
Spike,Inc., 190 USPQ 505, 507 (TTAB 1976). Moreover, the Board is not bound by
the prior decisions of examining attorneys.
It has been noted many times that each case must be
decided on its own facts. 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 Merrill Lynch, Pierce, Fenner & Smith
Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir.
1987). In view of the foregoing, we are obligated to assess
the registrability of applicant’s mark on its own merits
based on the record in this application and not simply
based on the existence of other registrations. Thus, this
cancelled registration is only evidence that the
registration issued and does not afford applicant any legal
presumptions under § 7(b) of the Trademark Act. See
Anderson, Clayton and Co. v. Krier, 478 F.2d 1246, 178
USPQ 46, 47 (CCPA 1973) (statutory benefits of
registration disappear when the registration is cancelled);
In re Brown-Forman Corp., 81 USPQ2d 1284, 1286 n.3
(TTAB 2006); In re Phillips-Van Heusen Corp., 63
USPQ2d 1047, 1048 n.2 (TTAB 2002).
In re Pedersen, 109 USPQ2d 1185, 1197 (TTAB 2013).

The only issue before us is whether “SpiderGraph” is merely descriptive when
used in connection with “printed material, namely, printed graphs and charts for
use in the comparison and analysis of alternative choices in decision-making
applications.”
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it forthwith conveys an
immediate idea of an ingredient, quality, characteristic, feature, function, purpose
Serial No. 85220392
4
or use of the goods or services. DuoProSS Meditech Corp. v. Inviro Medical Devices
Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In
re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978).
Whether a term is merely descriptive is determined not in the abstract, but in
relation to the goods or services for which registration is sought, the context in
which it is being used on or in connection with the goods or services, and the
possible significance that the term would have to the average purchaser of the goods
or services because of the manner of its use; that a term may have other meanings
in different contexts is not controlling. The Chamber of Commerce of the U.S., 102
USPQ2d at 1219, citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d
1828, 1831 (Fed. Cir. 2007); In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB
1979). The burden is on the United States Patent and Trademark Office to make a
prima facie showing that the mark or word in question is merely descriptive from
the vantage point of purchasers of an applicant’s goods. See In re Box Solutions
Corp., 79 USPQ2d 1253, 1255 (TTAB 2006) referring to In re Merrill Lynch, Pierce,
Fenner, and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1144 (Fed. Cir. 1987).
Applicant’s goods are printed graphs and charts that are used for the comparison
and analysis of alternative choices in decision-making applications.
The Examining Attorney introduced evidence of use of the term “spider graph” in
connection with graphs and charts used to compare and analyze choices in decision-
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Serial No. 85220392
6
• We at the Rotokawa Cattle Company have
developed an important new tool called a spider
graph for evaluating and demonstrating the
strengths and weaknesses of a bull or cow’s body
conformation.
Rotokawa Cattle Company located at
www.bakewellrepro.com; and
• NBA Spider graphs are like visual box scores.
They’re a quick, visual way to compare two or more
players. A glance can give you an impression of
each player’s style and how they match up.
“How to Watch Sports” located at
howtowatchsports.com.
Office Action, February 11, 2011. The Examining Attorney has met the Office’s
burden of establishing that the term “spider graph” is merely descriptive of a graph
used for analyzing choices in decision-making applications.
Applicant contends that the evidence submitted by the Examining Attorney
relates to computer generated charts, known as “Radar spider charts,”4 while “[t]he
term ‘SpiderGraph’ was given to one of the most accurate and simple, ‘hand-
graphed,’ ‘non-computer oriented,’ trade-off decision-making Methods … .” Appeal
Brief, p. 2. According to Applicant, “[a]ll of the evidence entered into the record are
[sic] not of the SpiderGraph Charts in question.” Appeal Brief, p. 4. Applicant’s
contentions do not contravene a finding that the applied-for term is merely
descriptive. As discussed above, the descriptiveness determination is not made in a
vacuum. We look at the goods, “printed material, namely, printed graphs and charts
for use in the comparison and analysis of alternative choices in decision-making
applications” and determine if consumers knowing the goods, will immediately

4 Appeal Brief, p. 1.
Serial No. 85220392
7
perceive an idea of an ingredient, quality, characteristic, feature, function, purpose
or use of the goods from Applicant’s use of the term SpiderGraph in connection with
the goods.
As to the word “Graph,” Applicant’s goods are identified as “graphs and charts,” 5
and thus the term “Graph” describes Applicant’s goods. For the purposes of this
decision, the words “chart” and “graph” appear to be used interchangeably.
As to the word “Spider,” applicant has acknowledged that he called his graph
“the SpiderGraph because it looked like a Spiderweb when it was completed.”6
Moreover, in comparing the Radar Spider Chart to the SpiderGraph Chart,
Applicant described the display on both charts as a “spiderweb.”7 Further, as shown
by the Examining Attorney’s evidence, the terms “spider graph,” “spider diagram”
and “spider chart” are slightly different names for substantially the same visual
presentation. Much like the name “radar spider chart,” these are names given to a
type of chart employing a graphical method of displaying multivariate data. As
such, the applied for term, SpiderGraph, is a merely descriptive term as defined by
Section 2(e)(1) of the Trademark Act.

5 We take judicial notice of the definitions of “chart” in Webster’s On-Line Dictionary, which
include “information in the form of a table, diagram, etc.” and “graph.” MERRIAM-
WEBSTER ONLINE (www.Merriam-Webster.com) copyright © 2014 Merriam-Webster,
Incorporated.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have
regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
6 Response, March 10, 2011, p. 3.
7 Id. at p. 2.
Serial No. 85220392
8
We would be remiss if we did not comment on one troubling aspect of Applicant’s
prosecution of his application, specifically, Applicant’s personal attacks on the
Examining Attorney. However, so as to be clear, Applicant’s comments have had no
bearing on our determination of the substantive issue on appeal. The majority of the
statements made by Applicant throughout prosecution consisted of attacks on the
Examining Attorney’s knowledge and ability to understand technical matters. Many
of these attacks were repeated in the Appeal Brief, including the statement that
“The Examining Attorney should have recused himself!” Appeal Brief, p. 5.8 Suffice
to say that Applicant’s comments did nothing to advance the substantive
prosecution of his application. The USPTO and the Board require all parties,
whether represented by counsel or proceeding pro se, “to conduct their business
with decorum and courtesy.” Trademark Rule 2.192. In any future contact with the
USPTO, Applicant should refrain from ad hominem attacks on USPTO personnel.
As discussed above, we find that the Examining Attorney’s evidence is fully
sufficient to support the refusal that the applied-for term, SpiderGraph, is merely
descriptive of “printed material, namely, printed graphs and charts for use in the
comparison and analysis of alternative choices in decision-making applications.”
Decision: The refusal to register is affirmed.

8 The Examining Attorney responded to this attack in his Appeal Brief, appropriately
stating that Applicant’s assertion is unfounded, “as the issue at present is not the intricate
differences in the products at issue and processes by which they are created, but rather the
use of the term in the marketplace to identify a particular genre of charts and graphs.”
Examining Attorney’s Appeal Brief, p. 10