Lockheed Martin Corp.

Trademark Trial and Appeal Board

Oct 1, 2003

No. 76214245 (T.T.A.B. Oct. 1, 2003)

Mailed: October 1, 2003
Paper No. 13
BAC
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Lockheed Martin Corporation
________
Serial No. 76214245
Serial No. 76214246
_______
Robert B. Berube of Marsh Fischmann & Breyfogle LLP for
Lockheed Martin Corporation.
Michael J. Souders, Trademark Examining Attorney, Law
Office 115 (Tomas Vlcek, Managing Attorney).
_______
Before Hohein, Chapman and Rogers, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
The two applications involved herein were filed on
February 22, 2001, by Lockheed Martin Corporation (a
Maryland corporation) to register on the Principal Register
the marks ETOC (application Serial No. 76214245) and the
mark shown below
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Ser. Nos. 76214245 & 76214246
2
(application Serial No. 762142461), both for goods
identified, following amendment, as “computer software for
use in acquiring, integrating, and disseminating
information to individuals involved in situational response
activities” in International Class 9. Applicant asserts,
in each application, a bona fide intention to use the mark
in commerce.
The Examining Attorney has refused registration in
each application under Section 2(e)(1) of the Trademark
Act, 15 U.S.C. §1052(e)(1), on the ground that applicant’s
mark (ETOC or eTOC), when used on applicant’s goods, is
merely descriptive thereof.
When the refusal to register was made final, applicant
appealed in each application. Applicant and the Examining
Attorney have filed briefs, but applicant did not request
an oral hearing.
In view of the common questions of law and fact which
are involved in these two applications, and in the
interests of judicial economy, we have consolidated the
applications for purposes of final decision. Thus, we have
issued this single opinion.
1 For the sake of simplicity, in this decision we will refer to
applicant’s special form mark as “eTOC.”
Ser. Nos. 76214245 & 76214246
3
The Examining Attorney contends that the terms ETOC
and eTOC are merely descriptive of a central feature or
purpose of applicant’s computer programs in that “E” or “e”
refers to “electronic” and “TOC” refers to “tactical
operations center,” making the letters ETOC and eTOC
acronyms for “electronic tactical operations center”; that
applicant’s brochure (submitted by applicant in response to
the Examining Attorney’s request for information) indicates
that the prospective purchasers for applicant’s goods are
United States military personnel, who are among the classes
of people who will immediately understand that the letters
ETOC and eTOC are acronyms for “electronic tactical
operations center”; that consumers for applicant’s computer
software will not need to engage in a multi-stage reasoning
process to determine the nature of applicant’s goods; that
the numerous other meanings of various combinations of the
letters “etoc” suggested by applicant are not controlling
when looking at the marks in the context of the identified
goods; and that the combination of the letter “E” or “e”
with the letters “TOC” does not create a unique,
incongruous meaning as applied to applicant’s goods.
In support of his position, the Examining Attorney
submitted (i) dictionary definitions of “e” and “tactical
operations center”; (ii) printouts from the
Ser. Nos. 76214245 & 76214246
4
acronymfinder.com web site showing meanings of the initials
“TOC”;2 (iii) printouts of numerous excerpted stories
retrieved from the Nexis database; and (iv) printouts of
pages from various web sites (including applicant’s web
site).
The dictionary definitions of “e” are as follows:
e- (Electronic-) The ‘e’ prefix may be
attached to anything that has moved
from paper to its electronic
alternative, such as e-mail, e-cash,
etc. The Computer Glossary The
Complete Illustrated Dictionary (Eighth
Edition 1998); and
e- adj. An abbreviation of ‘electronic’
that generally indicate[s] information
or functions involving the Internet.
The Official Internet Dictionary
(1998).
The military dictionary definition of “tactical
operations center” is as follows:
(DOD) A physical groupment of those
elements of a general and special staff
concerned with the current tactical
operations and the tactical support
thereof. Also called TOC. See also
command post.
www.dtic.mil.
Some examples of the excerpted stories retrieved from
the Nexis database include the following:
2 The www.acronymfinder.com web site shows that the Examining
Attorney’s search of “toc” “returned 30 hits (most common
definition(s) listed first)” and the fourth meaning is “Tactical
Operations Center.”
Ser. Nos. 76214245 & 76214246
5
Headline: US Army Orders IBCT TOCs
The US Army Aviation and Missile
Command has awarded TRW a US$14 million
contract to supply tactical operations
centers (TOCs) for use by the First and
Second Brigades of the Initial Brigade
Combat Team (IBCT). “International
Defense Review,” February 1, 2001;
Headline: ARMY ISR Riflemen Get the
Picture
…Today’s rifleman has access to
information the extent of which General
Patton could only dream. Individual
soldiers can receive JSTARS and other
info on a remote laptop terminal or at
the truck-mounted Tactical Operations
Center (TOC). The TOC is available
down to platoon level when “jumping”
from one location to another. “Journal
of Electronic Defense,” February 1,
2001;
Headline: Computers in Combat: Double-
Edged Swords
…If a battleground boundary changes,
the brigade tactical operations center
(TOC) can update it on the computer
screen. The data flow down to the
battalion and up to the division.
“National Defense,” June 1, 2001;
Headline: Concurrent Technologies Corp.
Concurrent Technologies Corp.
(Johnstown, PA) received a $3.7-million
installment of a $33.4-million contract
for the development and prettying of
the Next-Generation Command and Control
System (NGCCS) Tactical Operation
Center (TOC) 3-D. “Journal of
Electronic Defense,” October 1, 2000;
Headline: The War in Indochina
…Col. Pham Van Phuoc, Long Khanh
Province chief, stood in his TOC
(tactical operations center) in Xuan
Loc-backed by the bright, precise
Ser. Nos. 76214245 & 76214246
6
acetate overlay maps that U.S. officers
are so fond of. “Newsweek,” April 28,
1975;
Headline: Battalion Commander: If
There’s a World War III, Wess Clark May
Be Your Man at the Front
…When Wess Clark arrived at the
downrange tactical operation center
(TOC) for the second week of Blackhawk
Blizzard, his executive officer told
him … . “The Washington Post,” May 10,
1981;
Headline: The Point of the Spear
…The Americans also went equipped for
night fighting. Each battalion’s
Tactical Operations Center (TOC) moved
forward in four 577 command trucks… .
“U.S. News & World report,” March 11,
1991;
Headline: Motorola to design Army
battlefield command system
Motorola Systems Solutions Group has
won a $44.8 million contract from the
U.S. Army to design and integrate 64
Tactical Operations Centers (TOCs) over
the next five years, the company
announced.
The TOCs are mobile battlefield command
and control centers formed by loading
data processing equipment and digital
communications onto tactical vehicles.
“Aerospace Daily,” July 23, 1999;
Headline: Force XXI makes impact on ADA
…Vane said during the past year, he has
developed his critical information
requirements, which were posted in the
operations center. Also he has met
with contractors who are building the
tactical operations centers of the
future, particularly the future Brigade
TOCs. “BMD Monitor,” December 12,
1997;
Ser. Nos. 76214245 & 76214246
7
Headline: The Cutting Edge…At a
Military ‘Boot Camp’--Complete With
Actual M-1 Tanks--Software Maker
Novalogic Shows Just What It’s
Simulating
…A couple of tanks are parked near the
TOC (tactical operations center), and
with no less than four Army lawyers
looking on, we’re allowed to climb
aboard and poke around. “Los Angeles
Times,” July 28, 1997;
Headline: Army to Complete TMD
Investment Strategy by Fall. Theater
Missile Defense Advanced Warfighting
Experiment
The special operations forces were
inserted behind enemy lines by
helicopters or parachutes and given
target areas to reconnoiter. Using
satellite communications radios, SOF
called in GPS coordinates of targets to
commanders in tactical operations
centers (TOC). “Defense Daily,” June
6, 1995;
Headline: Lockheed Wins $689-Million
Theater Defense Contract
…Under the four-year
demonstration/validation contract,
Lockheed will build two truck-mounted
launchers, two tactical operations
center (TOC) shelters, and 20 missiles
to be used for flight testing at White
Sands Missile Range. “Aviation Week &
Space Technology,” September 21, 1992;
and
Headline: Qatar Post to Become
Operational
…Roughly around 1,000 CENTCOM personnel
will operate its forward-deployed
headquarters using a mobile command
post called the Tactical Operations
Center, or TOC, a high-tech
communications post that was flown into
Qatar in December for Operation
Ser. Nos. 76214245 & 76214246
8
Internal Look, a planning exercise.
“White House Weekly,” February 4, 2003.
Some examples of the third-party web sites include the
following:
The IBCT Tactical Operations Center
…When it comes to the point where the
rubber meets the road, however, the
actual tactical operations center (TOC)
is where situational awareness is
converted into combat command
decisions.
www.armymag.nsf;
Tactical Operations Center (TOC)
The Tactical Operations Center (TOC) is
“Mission Control” for MSI’s management
and support services.
www.marsys.com; and
Defense Department Retools for a Net-
Centric Future
…Now battle supremacy rests with the
computer enabled. …One such project,
the Electronic Tactical Operations
center (eTOC), aims to give the
military secure, Internet… .
www.washingtontechnology.com.
In addition, the Examining Attorney relies on
applicant’s brochure and applicant’s web site,
respectively, which include uses describing the features of
applicant’s product such as the following:
“The U.S. Army is committed to
transforming the way it operates. …
Lockheed Martin’s solution to this
challenging command and control (C²)
need is eTOC -- the Electronic Tactical
Operations Center. … eTOC is a scalable
solution that takes advantage of the
Internet and web-enabling technologies
Ser. Nos. 76214245 & 76214246
9
to provide the warfighter relevant,
decisive data.”; and
“Lockheed Martin Wires Warfighters to
the Web With Electronic Tactical
Operations Center Initiative … Lockheed
Martin is working to put a dot.com face
on the modern battlefield with its
Electronic Tactical Operations Center
(eTOC) research and development effort.
… eTOC integrates data from several
disparate Army C2 systems to deliver
mission-critical information… The eTOC
web page displays an interactive
graphical map of battlefield geography
and forces… The web-based nature of
eTOC is key to the systems advanced
adaptability, performance and ease of
use… .”
Applicant urges reversal of the refusal to register on
the basis that the Examining Attorney improperly dissected
the marks rather than considering each mark as a whole in
determining descriptiveness; that applicant’s marks do not
include any hyphen after the “E/e” or any periods after the
letters “T,” “O” or “C”; that the mark is suggestive
because it requires imagination and mature thought to reach
a conclusion about the goods, and, specifically, that
consumers must engage in a 6-stage reasoning process to
understand the meaning of the letters; that the acronym
“TOC” refers to many things other than “tactical operations
center,” such as “Table of Contents” and “Total Organic
Carbon”; that “the common [dictionary] definitions [of the
four involved words] yield a prohibitively large number of
Ser. Nos. 76214245 & 76214246
10
alternative combinative meanings, which, in and of itself,
undermines the conclusion [that the marks] ‘immediately’
convey an attribute of Applicant’s computer software”
(brief, p. 7); that the letters may be understood by
consumers in any order, such as “ET” and “OC,” or “ETO” and
“C”; that the only meaning for “etoc” in the
www.acronymfinder.com web site is “estimated time of
completion”; that the combination of the “arguably
ubiquitous ‘E’ with another arguably descriptive component
into a single composite mark does not necessarily render
the mark as a whole descriptive” (brief, pp. 7-8) as is
particularly shown by nine third-party registrations of
marks including “e” and other letters or words, all
registered subsequent to the case of In re Styleclick.com
Inc., 57 USPQ2d 1445 (TTAB 2000); that the “Examining
Attorney has provided evidence of an acronym relationship
between ‘TOC’ and the phrase ‘tactical operations center,”
but he has not provided evidence that ‘ETOC/eTOC’ is an
acronym for “electronic tactical operations center” (brief,
p. 9), and, in fact, there is evidence of “ETOC/eTOC” used
by applicant in promoting its goods or by others as a
source indicator of applicant’s computer software; that the
Examining Attorney has not established, as required by the
case of Modern Optics, Inc. v. Univis Lens Co., 234 F.2d
Ser. Nos. 76214245 & 76214246
11
504, 110 USPQ 293 (CCPA 1956), that the letters ETOC/eTOC
are “accepted as substantially synonymous” with “electronic
tactical operations center”; and that the marks are at
most, suggestive, not merely descriptive, of applicant’s
computer software.
Applicant submitted for the record the following: (i)
a photocopy of its promotional brochure; (ii) printouts
from its searches of various combinations of the letters
comprising “etoc” on the www.acronymfinder.com web site;
(iii) printouts from its search of the letters “asic” on
the www.acronymfinder.com web site; (iv) printouts from the
USPTO’s Trademark Electronic Search System (TESS) of nine
third-party registrations; and (v) photocopies of Webster’s
II New College Dictionary (1999) definitions of the words
“electronic,” “tactical,” “operation” and “center.”3
The test for determining whether a mark is merely
descriptive is whether the term or phrase immediately
conveys information concerning a significant quality,
characteristic, function, ingredient, attribute or feature
of the product or service in connection with which it is
used or is intended to be used. See In re Nett Designs
3 Applicant submitted the dictionary definitions for the first
time with its brief on appeal and requested that the Board take
judicial notice thereof. Applicant’s request for judicial notice
is granted. See TBMP §704.12(a) (2d ed. June 2003).
Ser. Nos. 76214245 & 76214246
12
Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001); In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA
1978); In re Eden Foods Inc. 24 USPQ2d 1757 (TTAB 1992);
and In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979).
Further, it is well-established that the determination of
mere descriptiveness must be made not in the abstract or on
the basis of guesswork, but in relation to the goods or
services for which registration is sought, the context in
which the term or phrase is being used or is intended to be
used on or in connection with those goods or services, and
the impact that it is likely to make on the average
purchaser of such goods or services. See In re
Consolidated Cigar Co., 35 USPQ2d 1290 (TTAB 1995); and In
re Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991).
Consequently, “[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). Rather, the question is
whether someone who knows what the goods or services are
will understand the term or phrase to convey information
about them. See In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990).
As a general rule, initials are not considered merely
descriptive unless they are so generally understood as
Ser. Nos. 76214245 & 76214246
13
representing descriptive words as to be substantially
synonymous therewith. See Modern Optics, Inc. v. Univis
Lens Co., 234 F.2d 504, 110 USPQ 293 (CCPA 1956).
We find that this record establishes that “E” and/or
“e” is an abbreviation for “electronic,” and “toc” is an
abbreviation for “tactical operations center”; that
“electronic tactical operations center” is merely
descriptive of applicant’s “computer software for use in
acquiring, integrating, and disseminating information to
individuals involved in situational response activities”;
and that the marks, ETOC and eTOC, would be recognized by
the relevant consumers as no more than an abbreviation of
the descriptive phrase.
The dictionary definitions of “e,” as well as
applicant’s own uses of the letter in its brochure and on
its web site, establish “e” as meaning “electronic” in the
context of applicant’s computer software.4 That is, the
4 We note that applicant made the argument in the application for
the mark eTOC that “the presence of the small ‘e’ in the subject
mark ‘eTOC’ makes a possible recognition that ‘eTOC’ is an
acronym for ‘electronic tactical operations center’ less likely
since many widely recognized acronyms (e.g., IBM, GE) often
appear in capital letters.” Applicant’s request for
reconsideration in Serial No. 76/214,246, filed November 27, 2002
(via certificate of mailing), p. 3. We disagree and in fact, it
appears to us that the mark utilizing a small “e” is perhaps even
more likely to evoke a prefix meaning “electronic.” This does
not mean that we have any doubt as to the meaning of the term
ETOC as also being understood by the relevant purchasers as
meaning “electronic tactical operations center.” To the
Ser. Nos. 76214245 & 76214246
14
evidence shows that this prefix indicates the electronic or
Internet nature of the goods. See In re Styleclick.com
Inc., 57 USPQ2d 1445 (TTAB 2001); and Continental Airlines
Inc. v. United Air Lines Inc., 53 USPQ2d 1395 (TTAB 2000).
Further, the Nexis and Internet evidence demonstrates
that the letters “TOC” are clearly an abbreviation for
“tactical operations center” in the context of applicant’s
goods; and that “TOC” is merely (and highly) descriptive in
relation to applicant’s specific computer software. The
overall letters “ETOC” and “eTOC” (in the special form
shown above) would be immediately understood by the
relevant consumers (e.g., U.S. military personnel) as
conveying information about a significant feature or
purpose of applicant’s goods (“computer software for use in
acquiring, integrating, and disseminating information to
individuals involved in situational response activities”).
A significant function or purpose of applicant’s computer
software, as identified, is to facilitate the acquisition,
integration and dissemination of information by command and
control personnel in a tactical operations center to the
appropriate individuals involved in situational response
contrary, we have no doubt that both of the involved marks would
be readily understood by relevant purchasers as meaning
“electronic tactical operations center.”
Ser. Nos. 76214245 & 76214246
15
activities. Clearly, applicant’s computer software is
associated with the electronic and Internet aspects of
tactical operations centers. Moreover, on applicant’s web
site, it refers to “electronic tactical operations centers”
in referring to its computer software. The relevant
purchasers would clearly understand that applicant’s
software is intended to be used in connection with or to
create electronic tactical operations centers. See In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In
re Omaha National Corporation, 819 F.2d 1117, 2 USPQ2d 1859
(Fed. Cir. 1987); In re Intelligent Instrumentation Inc.,
40 USPQ2d 1792 (TTAB 1996); and In re Time Solutions, Inc.,
33 USPQ2d 1156 (TTAB 1994).
Simply put, it would be readily apparent to the
purchasers of the identified computer software (e.g., the
U.S. Army and other branches of the armed services) that
ETOC and eTOC consists of the prefix “E/e” followed by the
well-known (at least to the military) abbreviation meaning
“tactical operations center.”
Applicant repeatedly makes the point that there are
numerous associations possible between these letters and
many common words, and that consumers will not immediately
know the nature of the goods offered by applicant under
either of the proposed marks. The other associations
Ser. Nos. 76214245 & 76214246
16
between the letters “etoc” and other words are not relevant
when considered in the context of applicant’s identified
goods. That is to say, applicant’s argument that the
letters could refer to any number of other unrelated
matters, such as, “estimated time of completion” or
“elapsed time optical character,” and several other
meanings of various combinations of the letters “e,” “t,”
“o” and “c,” is irrelevant in the context of applicant’s
goods. See In re Acuson, 225 USPQ 790 (TTAB 1985); and In
re Bright-Crest, supra.
The record is clear that the relevant purchasers would
immediately understand the meaning of these letters as
“electronic tactical operations center.” That is, the
initials ETOC and eTOC have become generally understood by
the relevant purchasers as being substantially, if not
solely in this case, synonymous with the words “electronic
tactical operations center.” In the Modern Optics case,
supra, the Court found that the involved initials “CV” were
neither the necessary nor the obvious descriptor of the
involved product. In the applications now before this
Board, quite the contrary is shown by the evidence relating
to ETOC and eTOC.
Moreover, the combination of the letters “E/e” and
“TOC” does not create an incongruous, ambiguous or unique
Ser. Nos. 76214245 & 76214246
17
mark. Rather, applicant’s designations, ETOC and eTOC,
when used in connection with applicant’s identified goods,
immediately describe, without need of conjecture or
speculation, the primary purpose, function or feature of
applicant’s goods, as discussed above. Nothing requires
the exercise of imagination or mental processing or
gathering of further information for purchasers of and
prospective customers for applicant’s services to readily
perceive the merely descriptive significance of the letters
ETOC and eTOC as pertaining to applicant’s goods.
We are not persuaded that the relevant purchasers
would go through the 6-stage mental exercise put forth by
applicant. Rather, it is clear that these initials ETOC
and eTOC are not vague and would be recognized by the
purchasers of applicant’s software, not as indicating
source in applicant, but as meaning “electronic tactical
operations center.”
With respect to the nine third-party registrations,
made of record by applicant, for marks including the letter
“e” and other letters or words, and all but one covering
goods identified as various specific computer software,
some have different connotations (e.g., ESTUDIO (for
“amplifiers and electronic effect pedals for use with
guitars and musical instruments”), ETREEV, E STAT).
Ser. Nos. 76214245 & 76214246
18
Although there are a few third-party registrations of marks
combining the letter “e” with arguably descriptive terms
(e.g., ETEE, E-CURRENCY), this evidence is not persuasive
of a different result in this case. While uniform
treatment under the Trademark Act is an administrative
goal, the Board’s task in an ex parte appeal is to
determine, based on the record before us, whether
applicant’s mark is merely descriptive. As often noted by
the Board, each case must decided on its own merits. We
are not privy to the records of the third-party
registration files and, moreover, the determination of
registrability of those particular marks by the Trademark
Examining Attorneys cannot control the merits in the case
now before us. See In re Nett Designs Inc., supra, 56
USPQ2d at 1566 (“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.”)
Finally, even if applicant was the first (and/or
became the only) entity to use the terms “ETOC” and/or
“eTOC” in relation to computer software for use in
acquiring, integrating, and disseminating information to
individuals involved in situational response activities,
such is not dispositive where, as here, the term
Ser. Nos. 76214245 & 76214246
19
unquestionably projects a merely (and highly) descriptive
connotation. See In re Central Sprinkler Co., 49 USPQ2d
1194, 1199 (TTAB 1998); and In re Tekdyne Inc., 33 USPQ2d
1949, 1953 (TTAB 1994). We believe competitors would have
a competitive need to use these initials. See 2 J. Thomas
McCarthy, McCarthy on Trademarks and Unfair Competition,
§11:18 (4th ed. 2001).
Suffice it to say that, based on the record before us,
applicant’s other arguments (e.g., applicant does not use a
hyphen after the letter “E” or “e”) do not persuade us of a
different result herein.
Decision: The refusal to register on the Principal
Register under Section 2(e)(1) of the Trademark Act in each
application is affirmed.