K²T, Inc.

Trademark Trial and Appeal Board

Sep 18, 2001

No. 75471626 (T.T.A.B. Sep. 18, 2001)

9/18/01 Paper No. 14

GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re K2T, Inc.
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Serial No. 75/471,626
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Ansel M. Schwartz, Esq. for K2T, Inc.

Scott Baldwin, Trademark Examining Attorney, Law Office 112
(Janice O'Lear, Managing Attorney).
_______

Before Quinn, Hohein and Rogers, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

K2T, Inc. has filed an application to register the term
"SCENEMODELER" for "laser range sensors for use in the
architecture, engineering and construction industries."1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the

1 Ser. No. 75/471,626, filed on April 21, 1998, which is based on an
allegation of a bona fide intention to use such term in commerce.

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/471,626
2
basis that, when used in connection with applicant's goods, the
term "SCENEMODELER" is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested. We affirm the refusal to
register.
It is well settled that a term is considered 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 any 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 (Fed. Cir.
1987) and In re Abcor Development Corp., 588 F.2d 811, 200 USPQ
215, 217-18 (CCPA 1978). It is not necessary that a term
describe all of the properties or functions of the goods or
services in order for it to be considered to be merely
descriptive thereof; rather, it is sufficient if the term
describes a significant attribute or idea about them. Moreover,
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 those 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. See
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). Thus,
Ser. No. 75/471,626
3
"[w]hether consumers could guess what the product [or service]
is from consideration of the mark alone is not the test." In re
American Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
By way of background, applicant claims that its goods
are used "to obtain data about the surroundings where the laser
range sensors are placed." According to applicant:
The surroundings include rooms, or
facilities where architects, engineers or
contractors are designing or redesigning the
room or facilities. The laser range sensors
obtain data of the actual room or facility
being examined, and not a model of the room
or facility.

Applicant asserts that, in view thereof, the term "SCENEMODELER
is not [merely] descriptive because it does not describe 'laser
range sensors.'" While acknowledging that "the term 'scene'
suggests a physical location and the term 'modeler' suggests a
representation of something," applicant maintains that "[n]o one
by reading the mark would know what goods are associated with
the mark" and, instead, "would probably think it is something to
do with making a picture." Applicant also argues that its "mark
creates ambiguity or incongruity, which requires purchasers to
pause and reflect on the significance of the words of the mark
to even possibly attempt to understand what are the associated
goods" because "there is no clue of what type of scene" its
Ser. No. 75/471,626
4
laser range sensors are used to model.2 Applicant dismisses the
evidence (discussed below) offered by the Examining Attorney,
including excerpts from its own web site, by simply claiming
that "none of the examples ... links the subject mark to the
goods."
The Examining Attorney, on the other hand, contends
that the term "SCENEMODELER" merely describes "a characteristic,
feature or use of the applicant's goods" because such goods "are
used for three-dimensional object or scene modeling." Relying,
in part, on dictionary definitions from the electronic version
of The American Heritage Dictionary of the English Language (3rd
ed. 1992), which in relevant portion lists "scene" as a noun
meaning "1. Something seen by the viewer; a view or prospect"
and sets forth "modeler" as a nominative form of the verb
"model," which in turn is defined as "1. To make or construct a
model of," the Examining Attorney urges that "the combined term
"scene modeler" may be used to refer to a device that makes a
model of a scene."

2 In addition, applicant raises the argument that, while "the Examining
Attorney has cited dictionary definitions for the separate words"
comprising the term "SCENEMODELER," no definition has been offered for
"the mark as a whole." The fact, however, that such term is not found
in the dictionary is simply not controlling on the question of
registrability. See In re Gould Paper Corp., 824 F.2d 1017, 5 USPQ2d
1110, 1112 (Fed. Cir. 1987) and In re Orleans Wines, Ltd., 196 USPQ
516, 517 (TTAB 1977).

Ser. No. 75/471,626
5
In further support of his position, the Examining
Attorney points out that:
In fact, as evidenced by the excerpted
articles from the examining attorney's
search in a computerized database, the
combined term "scene modeler" is used in the
relevant industry to describe devices used
for three dimensional (3-D) image and scene
rendering.

Specifically, the Examining Attorney refers to the following
excerpts as shedding light on the meaning of the "SCENEMODELER"
term which applicant seeks to register (emphasis added):
"... will export Poser models in PICT
to 2-D image editors, or in RIB or DXF
format to CAD or scene modelers for more-
elaborate 3-D rendering." -- Macworld,
October 1995; and

"We have reviewed the RenderMan
Interface proposal and found it to provide a
powerful, extensible interface specification
between scene modelers and scene renderers
to permit the synthesis of very complex
scenes and simulations." -- Business Wire,
May 18, 1988.

Finally, the Examining Attorney observes that,
"[f]urther bearing-out the descriptive nature of the proposed
mark, the applicant's own web site clearly indicates that"
(emphasis added):
SceneModeler is a data collection and
processing system which combines a fast,
high resolution, high fidelity distance
measurement sensor with processing software
which creates 2D drawings or 3D models
exportable to industry standard CAD and
modeling software.
Ser. No. 75/471,626
6

Additionally, applicant's web site refers to its "SCENEMODELER"
products as "THE FASTEST WAY TO MEASURE AND MODEL AS-BUILT
CONDITIONS" and notes that such can be variously used (1) in
architectural and engineering applications to "[c]reate existing
condition models and drawings of infrastructure, buildings and
urban areas"; (2) in construction projects to "[c]reate accurate
as-built plans, cut fill estimations, site contours and existing
condition models"; (3) in petroleum and process plants to
"[q]uickly generate accurate models of pipe layouts, process
configurations, and infrastructure"; (4) in transportation
projects to "[c]heck rail alignments, generate facility models
for renovations, layouts for traffic studies, and models for
environmental studies"; (5) in ship construction "for ship
checking and construction fit ups" and to "[m]easure and model
complex hull, deck and bulkhead configurations quickly and
easily"; and (6) in general simulation and modeling to
"[q]uickly and easily create accurate models for computer
graphics and simulation/training applications."
Applicant's web site also highlights samples of
"projects [which] have been included to help illustrate the many
uses of SceneModeler for creating as-built drawings and models,"
including "Virtual Reality," "Facility Modeling" and "Processing
Plant" applications as well as "Architectural Modeling and
Ser. No. 75/471,626
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Visualization." Furthermore, "[a]s an example of SceneModeler's
capabilities," applicant's web site indicates that applicant
"scanned an exhibition hall containing the T-Rex [dinosaur] and
processed the resulting data into floor plans, rendered models,
and photo-realistic models useful for virtual reality
applications." Applicant's web site, moreover, states that
"[f]or process plant modeling applications, SceneModeler
technology can't be beat" and illustrates models of portions of
a process plant which "were quickly generated using Architect
point-to-geometry software." In view thereof, the Examining
Attorney concludes, as noted earlier, that "since the
applicant's goods are used for three-dimensional (3-D) object or
scene modeling, the proposed mark 'SCENEMODELER' merely
describes a characteristic, feature or use of the applicant's
goods."
We agree with the Examining Attorney that, when
considered in relation to the goods, rather than in the abstract
as improperly urged by applicant, the term "SCENEMODELER" is
merely descriptive of applicant's goods. In particular, it is
our view that, when applied to "laser range sensors for use in
the architecture, engineering and construction industries," the
term "SCENEMODELER" would be regarded by purchasers and
potential customers for the goods as immediately describing,
without any conjecture or speculation, a significant purpose,
Ser. No. 75/471,626
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feature or use of applicant's goods, namely, that they are used
to model scenes, through the data obtained or collected by
applicant's goods from whatever scene a model is to be made,
including those of buildings and infrastructure construction
projects, petroleum and process plants, transportation
facilities, and ships. There is simply nothing in the term
"SCENEMODELER" which, when used in connection with applicant's
goods, requires the exercise of imagination, cogitation or
mental processing or necessitates the gathering of further
information in order for the merely descriptive significance
thereof to be immediately perceived. Clearly, to customers and
users of applicant's goods, such term readily conveys that a
principal purpose, feature or use of applicant's laser range
sensors is that they function or serve as scene modelers, that
is, they are utilized to sense and model whatever view or image
must be generated for particular architectural, engineering
and/or construction applications. Nothing in such term is
bizarre, incongruous, indefinite or ambiguous when considered in
the context of applicant's goods.
Accordingly, because the term "SCENEMODELER" forthwith
conveys a significant purpose, feature or use of applicant's
"laser range sensors for use in the architecture, engineering
and construction industries," it merely describes what such
goods do and hence is unregistrable within the meaning of the
Ser. No. 75/471,626
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statute. See, e.g., In re Intelligent Instrumentation Inc., 40
USPQ2d 1792, 1794-95 (TTAB 1996) [term "VISUAL DESIGNER" held
merely descriptive of "computer programs for controlling the
acquisition of data from measurement devices for the purposes of
analysis, display, testing and automatic control"] and In re
Tekdyne Inc., 33 USPQ2d 1949, 1952-53 (TTAB 1994) [term "MICRO-
RETRACTOR" found merely descriptive of "surgical clamps"].
Decision: The refusal under Section 2(e)(1) is
affirmed.