Homeland Security Strategies, Inc.

Trademark Trial and Appeal Board

Oct 21, 2008

No. 78590586 (T.T.A.B. Oct. 21, 2008)

Mailed: October 21, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Homeland Security Strategies, Inc.
________

Serial No. 78590586
_______

Brian Gibbons for Homeland Security Strategies, Inc.

William H. Dawe, III, Trademark Examining Attorney, Law
Office 108 (Andrew Lawrence, Managing Attorney).
_______

Before Walters, Holtzman and Wellington, Administrative
Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Homeland Security Strategies, Inc. has filed an
application to register the mark BOMBJAMMER (in standard
character format) for goods ultimately identified as
“instruments comprised of transmitters and other electronic
devices for use as countermeasures against radio-linked
explosives” in International Class 9.1
The application was initially filed for registration
on the Principal Register under Section 1(b) alleging an

1 Application Serial No. 78590586, filed October 31, 2002.

THIS OPINION IS NOT
PRECEDENT OF THE TTAB
Serial No. 78590586
2
intention to use the mark in commerce. Registration was
refused under Section 2(e)(1) of the Trademark Act, 15
U.S.C. §1052(e)(1), on the basis that the mark is merely
descriptive of applicant’s goods. After the
descriptiveness refusal was made “final,” applicant filed
an allegation of use and requested to amend the application
to seek registration on the Supplemental Register. The
examining attorney accepted the amendment to allege use,
but refused amendment to the Supplemental Register for the
mark under Section 23 of the Trademark Act, 15 U.S.C. §
1091, on the ground that it is incapable of identifying
applicant’s goods because it is generic.
When the genericness refusal was made final, the Board
resumed the appeal, which has been fully briefed.
As a preliminary matter, we note that the examining
attorney has argued both that applicant’s mark is
descriptive (and thus should be refused registration on the
Principal Register) and that it is generic (and thus should
be refused registration on the Supplemental Register).
However, although applicant initially sought registration
of its mark on the Principal Register, it clearly and
unequivocally amended the application to seek registration
on the Supplemental Register. In addition, applicant only
addresses the issue of genericness in its appeal brief. In
Serial No. 78590586
3
view thereof, the only issue we must determine on appeal is
whether applicant’s mark is generic for the identified
goods.
To be registrable on the Supplemental Register, the
matter sought to be registered must be “capable of
distinguishing applicant’s goods or services.” Trademark
Act Section 23(a), 23(c). “Generic terms are common names
that the relevant purchasing public understands primarily as
describing the genus of goods or services being sold. They
are by definition incapable of indicating a particular
source of the goods or services.” In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed.
Cir. 2001)(citations omitted). Because they are incapable
of identifying source, generic terms are not registrable on
the Supplemental Register.
When a proposed mark is refused registration as
generic, the examining attorney has the burden of proving
genericness by "clear evidence" thereof. See In re Merrill
Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4
USPQ2d 1141, 1143 (Fed. Cir. 1987); see also In re Gould
Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111 (Fed. Cir.
1987). The critical issue is to determine whether the
record shows that members of the relevant public primarily
use or understand the term sought to be registered to refer
to the category or class of goods or services in question.
Serial No. 78590586
4
H. Marvin Ginn Corp. v. International Ass’n of Fire Chiefs,
Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986); In
re Women's Publishing Co. Inc., 23 USPQ2d 1876, 1877 (TTAB
1992). Making this determination “involves a two-step
inquiry: First, what is the genus of goods or services at
issue? Second, is the term sought to be registered ...
understood by the relevant public primarily to refer to
that genus of goods or services?” Ginn, supra, 228 USPQ at
530.
In this case, the genus of goods is adequately defined
by applicant’s identification of goods, namely,
“instruments comprised of transmitters and other electronic
devices for use as countermeasures against radio-linked
explosives.” Applicant also offers that the “proper genus
of its products are ‘IED [improvised explosive devices]
jamming devices” or “RF [radio frequency] jamming devices.”
The next question we must address is whether the
relevant purchasers for applicant’s identified goods would
understand BOMBJAMMER to primarily refer to the genus. As
to the evidence of the public’s understanding of a term,
this may be obtained from any competent source, including
testimony, surveys, dictionaries, trade journals,
newspapers and other publications. See Merrill Lynch,
supra, 4 USPQ2d at 1143 (Fed. Cir. 1987), and In re
Serial No. 78590586
5
Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ
961, 963 (Fed. Cir. 1985).
We find that the examining attorney has submitted clear
evidence that the relevant purchasing public would
understand that BOMBJAMMER primarily refers to instruments
for use as countermeasures against radio-linked explosives
or IED jamming devices. Specifically, the examining
attorney submitted dictionary definitions for the terms
“BOMB” and “JAMMER”:
Bomb: An explosive weapon detonated by impact,
proximity to an object, a timing mechanism, or
other means;

and

Jammer Electronics. To interfere with or
prevent the clear reception of (broadcast
signals) by electronic means.

Both definitions taken from The American
Heritage® Dictionary of the English Language,
Third Edition copyright © 1992 by Houghton
Mifflin Company.

The examining attorney also submitted several article
excerpts from the LexisNexis database showing usage of the
phrase “bomb jammer” (or those individual terms in
proximity to one another) in connection with the identified
genus of goods. These excerpts include (emphasis added)2:
Much of the money added by lawmakers would be
spent on equipment to safeguard troops, from
armored Humvees to helicopters, bomb jammers to

2 Attached to Office action dated May 19, 2006.
Serial No. 78590586
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ammunition... (Defense News and Army Times
Publishing Co., May 10, 2004);

...by developing top level security and
countermeasure equipment, from advanced voice
logging and management systems to voice & data
interceptor and bomb jammers. It also
disseminates knowledge and expertise via...
(Business Wire, Inc., May 3, 2004);

Terrorism is a recurring theme at this year’s
exhibit, with several inventions addressing both
prevention and intervention, including various
bomb jammers, a portable explosive detector, ...
(Associated Press Worldstream, March 31, 2004);

HSRC also suggested that anti-wireless remote
control detonation triggers – or bomb jammers –
could block bomb activation by cell phone or
radio, although they might also interfere with
passengers cell phone use...(Aviation Weeks
Homeland Security & Defense, March 24, 2004);

For ambassadors, oil executives, heads of state
and, increasingly, U.S. Troops, the list of
essential security gear now includes a bomb
jammer. New models small enough to fit into a
briefcase or a back pack... (Defense News and
Army Times Publishing Co., March 22, 2004);

...to design and assemble equipment that will
protect military forces with a jammer to prevent
bombs from being triggered remotely by cell
phones, bringing... (Business Wire, May 1,
2004); and

...the Army only had a small ordinance disposal
jammers that needed to be placed next to a bomb
to work...we didn’t have a requirement for
jammers... (Inside the Army, April 26, 2004).

The examining attorney also submitted printouts from
several third-party websites showing use of the “bomb
jammer” in connection with a device used to jam wireless-
Serial No. 78590586
7
controlled explosives or bombs.3 Applicant has taken
exception to the examining attorney’s reliance upon several
of these websites for several reasons, such as the websites
constitute foreign sources or the websites actually show
use of applicant’s mark via a licensee or they contain
“quotes [from] Applicant’s president.” Notwithstanding
these objections, we find several of the third-party
websites to be relevant and persuasive in showing that the
term “bomb jammer” is used a generic fashion in connection
with devices used for jamming radio-controlled (or
activated) explosives.
One website (www.lexdon.com), in describing the
FOSE 2006 fair, makes several references to a “bomb
jammer-equipped Hummer” vehicle (emphasis added):
Meganet Corporation of Los Angeles, California
will present their bomb jammer VME Terminator H2
mounted on a Hummer. Improvised Explosive
Devices (IEDs) claim casualties in Iraq every
day, and the VME Terminator H2 high-power
vehicle-mounted broadband bomb jammer puts IEDs
out of commission.
This website shows that the company, Meganet
Corporation, produces a “VME Terminator H2” device
that is being described generically as a “bomb
jammer.”

3 Attached to Office actions dated January 5 and August 3, 2007.
Serial No. 78590586
8
Another “Gadget Guide” website (www.gizmodo.com)
describes a “Cellphone Bomb Jammer,” that may be used in
Iraq to defend against IED’s. The lead-in paragraph on the
website reads (emphasis added):
The world may never know if there are or aren’t
cell-phone bomb jammers out there, but
DefenseTech has stumbled on a patent that may
shed light on the subject.

Applicant has objected to any reliance on this
website because “the product clearly does not exist”
(Request for Reconsideration, p. 3). This objection
is not well-taken. Regardless of whether the product
being discussed in the website is in existence, the
website indicates that products of this type are
referred to generically as “bomb jammers.”
In one other website, Smiths Detection,
(www.worldsecurity-index.com), a wide variety of
security-related equipment is listed in categories.
The list is: “Access Control, Alarms, ...Bomb
Jammers, ...Camouflage, ...Vehicle Barriers.”
Applicant argues that “there are certainly other
terms available for use by [applicant’s] competitors,
and there exist many companies using many terms for
the genus of these products other than “bombjammers.”
Brief, p. 4. In this regard, applicant provided a
Serial No. 78590586
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list of such companies in its brief and attached
copies of websites and “other supporting materials.”4
A review of the materials submitted by applicant
reveals that the companies identified by applicant
often reference their products generically as
“jammers” or “rf jammers.” And, in at least one
example given by applicant, the products are described
as having been “converted...into dedicated, traveling
bomb jammers implementing the most effective and
reliable jamming technology available anywhere.”5
(emphasis supplied). Thus, even the evidence provided
by applicant demonstrates that the generic term for
applicant’s goods is “bomb jammers.” Moreover,
contrary to the thrust of applicant's argument, the
examining attorney need not establish that “bomb
jammer” is the sole or most frequently used generic
term for applicant's goods; rather, he need only show
that such term is a generic term. The fact that other
generic terms, e.g., jammers, rf jammers, IED jammers,
etc., may also be used to reference the genus of

4 The website evidence and other materials attached to
applicant’s brief were previously submitted with its request for
reconsideration (filed on February 4, 2008), and thus were timely
submitted.
5 Printout from www.sesp.com describing products sold under a
JAMX trademark.
Serial No. 78590586
10
applicant’s goods is immaterial. It is settled in
this regard that (italics in original):
[A] product [or service] may have more than one
generically descriptive name. …. All of the
generic names for a product [or service] belong
in the public domain.

In re Sun Oil Co., 426 F.2d 401, 165 USPQ 718, 719
(CCPA 1970) (Rich, J., concurring). See also, Roselux
Chemical Co., Inc. v. Parsons Ammonia Co., Inc., 299
F.2d 855, 132 USPQ 627, 632 (CCPA 1962) (“there is no
legal foundation … that a product has only one
[generic or] common descriptive name”); In re Eddie
Z's Blinds & Drapery Inc., 74 USPQ2d 1037, 1042 (TTAB
2005) (“that there may be other generic terms that are
functionally equivalent to [the term at issue] … does
not make that term any less generic”).
As noted above, the evidentiary burden of
establishing whether a term is generic rests with the
Office and the showing must be based on clear
evidence. Here, the evidence of record establishes
that products which interfere with or jam radio
signals for the purpose of preventing the detonation
of radio-controlled explosives are called “bomb
jammers.” The examining attorney has therefore
established a prima facie showing that applicant’s
Serial No. 78590586
11
proposed mark BOMBJAMMER is generic for applicant’s
goods, and this has not been rebutted by applicant.
Decision: The refusal to register BOMBJAMMER in
application Serial No. 78590586 on the Supplemental
Register based on genericness under Section 23 is affirmed.