Iroquois Holding Company

Trademark Trial and Appeal Board

Sep 21, 2007

No. 78545441 (T.T.A.B. Sep. 21, 2007)

Mailed:
September 21, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Iroquois Holding Company
________

Serial No. 78545441
_______

Christina Ezell, Esq. for Iroquois Holding Company.1

Ira Goodsaid, Trademark Examining Attorney, Law Office 101
(Ronald R. Sussman, Managing Attorney).
_______

Before Grendel, Zervas and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Iroquois Holding Company filed an intent-to-use
application for the mark VARIABLE APERTURE TRANSDUCER, in
standard character format, for “audio loud speakers.” In
response to the Examining Attorney’s request for
information regarding the applicant’s audio loud speakers,
applicant provided the following explanation:
[A]pplicant . . . notes that products
of this type are merely audio
loudspeakers. If one was [sic] to
examine a typical loudspeaker employed,

1 On January 3, 2007, applicant filed a revocation of its first
power of attorney and an appointment of a new attorney.
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 78545441
2
for example, in a home installation,
the loudspeaker is composed of a
cabinet and speaker drivers that
vibrate in response to a signal
generated by an amplifier to create
acoustic waves discernable by a
listener. It is these loudspeaker
components themselves which are the
type of goods to be identified by the
present mark.2

The Examining Attorney has issued a final refusal of
registration on the ground that applicant’s mark is merely
descriptive under Section 2(e)(1) of the Trademark Act of
1946, 15 U.S.C. §1052(e), because applicant’s mark directly
conveys the fact that the products are audio loudspeakers
or transducers featuring an aperture that varies in size.
In other words, according to the Examining Attorney, the
term VARIABLE APERTURE TRANSDUCER as applied to audio
loudspeakers immediately informs consumers that applicant’s
products are transducers with a changeable aperture.3 The
Examining Attorney introduced the following evidence in
support of the refusal:
1. The definition of “transducer” as “a device that
is actuated by power from one system and supplies
power usually in another form to a second system ”;4

2. The definition of “aperture” as “1. An opening,
such as a hole, gap, or slit. 2a. A usually

2 April 17, 2006 Response.
3 Examining Attorney’s Brief, p. 3.
4 Merriam-Webster OnLine (www.m-w.com). See also MSN.Encarta
dictionary (http://msn.com).
Serial No. 78545441
3
adjustable opening in an optical instrument, such as a
camera or telescope, that limits the amount of light
passing through a lens or onto a mirror. b. The
diameter of such an opening, often expressed as an f-
number. c. The diameter of the objective of a
telescope;5

3. The definition of “variable” as “able to change:
able or liable to change, especially suddenly and
unpredictably”;6

4. A copy of Registration No. 2911284 for the mark
TRANSDUCERS USA for “acoustical products, namely . . .
speakers” wherein the registrant disclaimed the
exclusive right to use the word “transducers”;

5. A webpage from HighEmotion Audio with the
following text:

The S5 is a speaker that defies its
diminutive size in grand scale. This is
a sealed two-way speaker that utilizes
two of our proprietary new Variable
Aperture Transducers (VATs) and our
proprietary new 5.25” (13cm)
bass/midrange driver. The result is a
VeriSmall™ system that delivers stellar
sonic realism.7

6. A webpage from AudioPhilia (www.audiophilia)
dated March 2006 with the following information:

The products mentioned below are a
representative sample of the many new
and interesting offerings for 2006.

* * *

Pipe Dreams displayed and demonstrated
an all-new product line of speakers.

5 The American Heritage Dictionary of the English Language (4th
ed. 2000) from Barleby.com (www.bartleby.com). See also
MSN.Encarta dictionary (http://msn.com).
6 MSN.Encarta dictionary (http://msn.com).
7 Applicant claims that HighEmotion Audio is affiliated with
applicant because both companies have the same majority owner.
(September 26, 2006 Response).
Serial No. 78545441
4
Prices start at $4000 for a small
monitor using a proprietary variable
aperture transducer tweeter.
Information and description of each
model is available on their website at
www.pipedreams.com.

Applicant contends that the mark VARIABLE APERTURE
TRANSDUCER is not merely descriptive because VARIABLE
APERTURE TRANSDUCER is a coined term. Because there is no
such thing as a variable aperture transducer, no one in the
audio loudspeaker industry would have any idea what the
term VARIABLE APERTURE TRANSDUCER means. While the
components of the mark have dictionary definitions, the
composite mark is arbitrary.
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the services with which it
is used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). Whether a particular term is merely
descriptive is determined in relation to the products 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 Development Corp., 588 F.2d 811,
200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d
1222, 1224 (TTAB 2002). In other words, the issue is
whether someone who knows what the products are will
Serial No. 78545441
5
understand the mark to convey information about them. In
re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002);
In re Patent & Trademark Services Inc., 49 USPQ2d 1537,
1539 (TTAB 1998); In re Home Builders Association of
Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990); In re
American Greetings Corp., 226 UPSQ 365, 366 (TTAB 1985).
“On the 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 Tennis in the Round, Inc., 199 USPQ
496, 497 (TTAB 1978). See also, In re Shutts, 217 USPQ
363, 364-365 (TTAB 1983); In re Universal Water Systems,
Inc., 209 USPQ 165, 166 (TTAB 1980). Even where individual
terms are descriptive, combining them together may evoke a
new and unique commercial impression. If each component
retains its merely descriptive significance in relation to
the goods, without the combination of terms creating a
unique or incongruous meaning, then the resulting
combination is also merely descriptive. In re Tower Tech.,
Inc., 64 USPQ2d 1314, 1317-1318 (TTAB 2002).
The Examining Attorney has not established prima facie
that VARIABLE APERTURE TRANSDUCER, when applied to audio
loud speakers, is merely descriptive. The limited evidence
Serial No. 78545441
6
of record does not explain why a “variable aperture,” let
alone an “aperture” per se, is a quality, characteristic,
or feature of an audio loud speaker. The only evidence
offered by the examining attorney in support of his refusal
is dictionary definitions of the individual components of
the mark (the definition of aperture does not have any
nexus to audio loud speakers) and two websites, one of
which is purportedly from an entity related to applicant
and uses VARIABLE APERTURE TRANSDUCER as a trademark. From
this limited evidence, it is not clear that the purchasing
public would recognize VARIABLE APERTURE TRANSDUCER as
directly describing a quality, characteristic, or feature
of an audio loud speaker without some thought or exercise
of a multistage reasoning process (e.g., what does an
aperture have to do with an audio loud speaker?). In sum,
on this record, we cannot conclude that VARIABLE APERTURE
TRANSDUCER is merely descriptive of an audio loud speaker.
However, as shown by the definition of transducer set
forth above, it is clear that the word “transducer” is
merely descriptive because a loud speaker is a transducer.
Therefore, applicant must disclaim the exclusive right to
use the word “transducer.”8

8 Applicant suggested that the better tact for the Examining
Attorney was to request that applicant disclaim the individual
Serial No. 78545441
7
Decision: The refusal to register the mark under
Section 2(e)(1) is affirmed but will be reversed if
applicant enters a disclaimer of the descriptive word
“transducer” within thirty days from the mailing date of
this decision.”9 Once the disclaimer is entered, the
application shall proceed to publication.

terms. (Applicant’s Brief, p. 3). This would not work because
an applicant may not disclaim all of the elements of a mark. In
re Dena Corp., v. Belvedere International, Inc., 950 F.2d 1555,
21 USPQ2d 1047, 1051 (Fed. Cir. 1991); In re Anchor Hocking
Corp., 223 USPQ 85 (TTAB 1984). Moreover, we note that
applicant’s proposal suggests that the word “aperture” may, in
fact, describe a feature, quality, or characteristic of an audio
loud speaker, but what feature, quality or characteristic remains
undisclosed.
9 The disclaimer must read as follows: “No claim is made to the
exclusive right to use TRANSDUCER apart from the mark as shown.”