Kleindienst Corp.

Trademark Trial and Appeal Board

May 11, 2005

No. 78159843 (T.T.A.B. May. 11, 2005)

Mailed: 5/11/05

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Kleindienst Corporation
________

Serial No. 78159843
_______

Charles J. Rogers of Winstead Sechrest & Minick for
applicant.

David Elton, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
_______

Before Quinn, Bucher and Holtzman, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

An application was filed by Kleindienst Corporation to
register the mark DYNAMIC RECOGNITION for “computer
software for use in payment processing.”1
The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act on the ground
that applicant’s mark, if applied to applicant’s goods,
would be merely descriptive of them.

1 Application Serial No. 78159843, filed August 30, 2002,
alleging a bona fide intention to use the mark in commerce.
THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser No. 78159843
2
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs. An oral
hearing was not requested.
Applicant contends that its proposed mark is only
suggestive, and dismisses the examining attorney’s evidence
because, according to applicant, it does not show any use
of the term “dynamic recognition” in connection with
payment processing computer software. Specifically,
applicant argues that “[a]lthough the term ‘dynamic
recognition’ is often used in various industries to refer
to a number of various different applications, the term
‘dynamic recognition’ has not become a term of art in the
niche market in which the Applicant uses its mark.”
Further, applicant asserts that its own use of the term
highlighted by the examining attorney is as a trademark,
and not as a descriptive term. Applicant relies upon
general dictionary definitions of the terms comprising its
mark, stating that “these terms may be suggestive of a
quality (intense and vigorous) and a part of the function
(optical character recognition) of the Applicant’s payment
processing software, but they are not merely descriptive.”
The examining attorney maintains that “dynamic
recognition” is “a term of art used in the software
industry to describe software that has the capability of
Ser No. 78159843
3
performing operations involving the recognition of data at
the time it is needed rather than at a predetermined or
fixed time.” More specifically, the examining attorney
contends that the term immediately and directly informs
purchasers that the software is designed for the dynamic
recognition of data for use in the payment processing
industry. In support of the refusal, the examining
attorney submitted dictionary definitions, excerpts of
articles retrieved from the NEXIS database, articles found
on the Internet, and a press release from applicant.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Trademark Act Section
2(e)(1), if it forthwith conveys an immediate idea of an
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). A term need not immediately convey an
idea of each and every specific feature of the applicant’s
goods or services in order to be considered merely
descriptive; it is enough that the term describes one
significant attribute, function or property of the goods or
services. See In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973).
Ser No. 78159843
4
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; that a term may have
other meanings in different contexts is not controlling.
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
It is settled that “[t]he question is not whether someone
presented with only the mark could guess what the goods or
services are. Rather, the question is whether someone who
knows what the goods or services are will understand the
mark to convey information about them.” In re Tower Tech
Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002); see also In re
Home Builders Association of Greenville, 18 USPQ2d 1313
(TTAB 1990); and In re American Greetings Corporation, 226
USPQ 365 (TTAB 1985). Similarly, as the Board has
explained:
…the question of whether a mark is merely
descriptive must be determined not in the
abstract, that is, not by asking whether one
can guess, from the mark itself, considered in
a vacuum, what the goods or services are, but
rather in relation to the goods or services for
which registration is sought, that is, by
asking whether, when the mark is seen on the
Ser No. 78159843
5
goods or services, it immediately conveys
information about their nature.

In re Patent & Trademark Services Inc., 49 USPQ2d 1537,
1539 (TTAB 1998).
The record shows that applicant’s software is used in
processing payments that are made when submitted together
with other forms or documents (referred to as
“unstructured” forms or documents). Applicant touts its
technology as the ability to process payments together with
other documents: “[applicant] offers imaging technology
uniquely capable of processing checks intermingled with
full-page documents” and that applicant “offers recognition
solutions for....applications where checks have to be
processed together with large documents.”
Applicant has relied upon definitions of the terms
“dynamic” and “recognition” found in a general dictionary.
The term “dynamic” is defined as “marked by intensity and
vigor; forceful” and the term “recognition” means “the act
of recognizing or condition of being recognized.” Although
we have considered these meanings, the definition of
“dynamic” listed in a computer dictionary is more relevant.
As shown by this evidence submitted by the examining
attorney, the term “dynamic” means “in programming
languages pertaining to properties that can only be
Ser No. 78159843
6
established during the execution of a program; for example,
the length of a variable-length data object is dynamic;
pertaining to an operation that occurs at the time it is
needed rather than at a predetermined or fixed time.”
Computer Glossary, www.di.com.
The record also includes descriptive uses of the term
“dynamic recognition” in connection with computers and
computer software. Uses include the following examples:
Another area offering opportunities of
dynamic recognition of low-precision
operations is in the memory and I/O
hierarchy.
(ASAP, May 1, 2000)

Windows 2000 now performs automatic and
dynamic recognition of hardware.
(Computing, February 10, 2000)

It is also possible to implement
dynamic recognition, in which case a
list of words to be recognized is
obtained from some external source,
such as a Web page, and pronunciation
models for the words are generated
dynamically at run-time.
(ASAP, March 1, 2002)

XP smart tags that enable real-time,
dynamic recognition of content and
claimed it would allow users to quickly
access and analyze financial
information directly from Bridge’s
database....
(Securities Week, June 4, 2001)

Copper Mountain’s IP service
intelligence enables dynamic
recognition of user profiles and
services at the IP layer and
Ser No. 78159843
7
appropriate routing of voice traffic
between on-net and off-net resources.
(Business Wire, September 18, 2000)

A prime example is the development of
customized third-party smart tags,
which enable real-time, dynamic
recognition of content and offer
relevant options to workers, allowing
them to quickly access and analyze
information.
(PR Newswire, May 13, 2000)

Also of record is an article authored by Berthold
Nennstiel, an employee of applicant, that appeared in
TODAY--The Journal of Work Process Improvement. This
particular supplement deals with “the business of automated
document processing” and cites as the industry’s greatest
challenge the “handling of unstructured forms.” The
article is captioned “Dynamic Document Recognition on the
Path to the 21st Century.” The article includes the
following excerpt:
DFR: Dynamic Forms Recognition

The Kleindienst Explanation Of Payment
Server’s (kEOPs) DFR component follows
the dynamics of even half or non
structured documents. A notable
example is EOB’s (Explanations of
Benefit). It identifies the document
type by structural analysis. Then it
graphically analyzes each page layout
individually to dynamically locate all
fields of interest.

By assigning the proper recognition
engine and parameters to each field,
recognition is performed at the
Ser No. 78159843
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individual level. This happens at high
speeds, as all locating algorithms of
the recognition engine pass by.
Subsequently kEOPs present results in a
logical structure for each XML
transaction.

The results of this intelligent field
locator are impressive with read rates
that are better overall than single
recognition engines working standalone.

The examining attorney also introduced one of
applicant’s press releases (dated February 13, 2002)
announcing that “[applicant] presents a wide range of
document management solutions for international use.” The
press release includes the following:
JP Morgan is a further software client
of Kleindienst corporation. The bank
uses a Kleindienst solution for
automatically processing tax forms of
the State of New York. The solution
uses special scanners and a dynamic
recognition server for recognizing
unstructured documents as well as
software for information recognition
and extraction from Kleindienst.

We agree with the examining attorney’s assessment that
it is irrelevant that the word “dynamic” might have other
meanings in different contexts as suggested by applicant.
Although applicant may view its software as having intense,
vigorous or forceful qualities, the relevant purchasers are
far more likely to view the term as descriptive of software
having the capability of performing dynamic recognition
Ser No. 78159843
9
functions at the time such functions are needed, rather
than at fixed or predetermined times. Indeed, applicant
has used terms such as “dynamic forms recognition” and
“dynamic recognition server” in a descriptive manner
relative to its software for use in payment processing. In
the words of the examining attorney, applicant’s “goods
comprise software, a significant function of which is the
capability of facilitating the ‘recognition’ of data, i.e.,
fields within documents (including checks and documents
processed with checks) performed at an on-demand individual
level, hence, ‘dynamic recognition.’”
We conclude that, when used in connection with
applicant’s goods, the term DYNAMIC RECOGNITION immediately
describes, without conjecture or speculation, a significant
characteristic or feature of the goods, namely, that the
software is designed to recognize data on an as needed
basis (i.e., dynamically) in payment processing.
Decision: The refusal to register is affirmed.