Sewage Aeration Systems, Inc.

Trademark Trial and Appeal Board

Sep 22, 2003

No. 76254783 (T.T.A.B. Sep. 22, 2003)

Mailed: Paper No. 12
September 22, 2003 GFR
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Sewage Aeration Systems, Inc.
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Serial No. 76/254,783
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Christine Lebron Dykeman and Edmund J. Sease of McKee,
Voorhees & Sease, P.L.C. for Sewage Aeration Systems, Inc.
Tricia McDermott Thompkins, Trademark Examining Attorney,
Law Office 114 (K. Margaret Le, Managing Attorney).1
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Before Walters, Drost and Rogers,
Administrative Trademark Judges.
Opinion by Rogers, Administrative Trademark Judge:
Sewage Aeration Systems, Inc. has applied to register
WET COMBUSTION as a mark on the Principal Register for
goods identified as "sewage treatment aeration units to
enhance decomposition of waste water sludge," in
International Class 11. The application is based on
applicant's allegation that it has a bona fide intention to
1 William J. Sauers issued the initial and final refusals. Ms.
Thompkins issued a summary denial of applicant's request for
reconsideration and briefed the appeal.
This Opinion Is Not
Citable as Precedent of
the TTAB
Ser No. 76/254,783
2
use the designation on or in connection with the identified
goods in commerce.
The examining attorney refused registration under
Section 2(e)(1) of the Lanham Act, 15 U.S.C. §1052(e)(1),
on the ground that the designation is merely descriptive of
the identified goods. When the refusal was made final,
applicant appealed and requested reconsideration. The
examining attorney denied the request for reconsideration
without comment on applicant's arguments yet used the
denial as a means to introduce additional evidence.
Applicant and the examining attorney have filed briefs, but
applicant did not request an oral argument.
The question whether a term is merely descriptive is
determined not in the abstract, but in relation to the
goods for which registration is sought, the context in
which the term will be used, on or in connection with those
goods and the possible significance that the term would
have to the average purchaser or user of the goods. See In
re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979) and In
re Recovery, 196 USPQ 830, 831 (TTAB 1977). Moreover, in
considering the nature of the identified goods, we consider
the full range of products that can be encompassed by the
identification. In re Cryomedical Sciences Inc., 32 USPQ2d
1377 (TTAB 1994).
Ser No. 76/254,783
3
A mark is considered merely descriptive of goods,
within the meaning of Section 2(e)(1) of the Lanham Act, if
it immediately describes an ingredient, quality,
characteristic or feature thereof, or if it directly
conveys information regarding the nature, function, purpose
or use of the goods. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 217-218 (CCPA 1978); see also In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). It
is not necessary that a term describe all of the properties
or functions of the goods in order for it to be merely
descriptive thereof; rather, it is sufficient if the term
describes a significant attribute or idea about them. In
re Venture Lending Associates, 226 USPQ 285 (TTAB 1985).
Finally, to be refused as descriptive the term need not
describe all products that could be encompassed by the
identification; it is sufficient if it describes any
product that would be within the scope of the
identification. Cryomedical Sciences, supra, 32 USPQ2d at
1379 (TTAB 1994) (With an application based on intent-to-
use and where the exact nature of goods was not finally
determined, the designation SMARTPROBE was refused
registration because it would have descriptive significance
if used on or in connection with certain types of goods
within the scope of the identification).
Ser No. 76/254,783
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In this case, the original examining attorney
introduced into the record excerpts from various patents,
an excerpt from the Sanitary Engineering and Public Health
Handbook2, the "hit list" or results pages from a search of
the Internet for "wet combustion sewage," and an excerpt
from what appears to be a World Wide Web listing of terms
used by the World Intellectual Property Organization (WIPO)
in patent documents. The second examining attorney, when
denying applicant's request for reconsideration, attached
to her order article excerpts retrieved from the NEXIS
database, from such publications as "Hydrocarbon
Processing," a "Public Works" journal, an apparent United
Kingdom-based publication called "Chemistry and Industry,"
and "Chemical Week." She also attached three documents of
unexplained origin, apparently formatted by the examining
attorney into fixed image [i.e., jpeg] documents.
Applicant, in its brief, refers to one of these as a
reprint of a page from its web site. Thus, we have
considered that item because of applicant's acknowledgment
of it; but the other two image documents are of little
probative value in the absence of an explanation by the
examining attorney of their source. Applicant, in response
2 The patent and handbook excerpts were retrieved from the NEXIS
database.
Ser No. 76/254,783
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to a request by the examining attorney for information
detailing the nature of applicant's product, explained that
it did not have any such material and that applicant was
not aware of any competing goods of the same type.
However, applicant submitted "a brochure for another type
of sewage treatment product known as the Aerob-a-JetTM, sold
by applicant." Response to initial office action, p. 3.
In this case, the record is clear that "wet
combustion," however incongruous it might appear to be to a
layperson, is a term of art in certain industries. As
applicant notes, certain patent excerpts and the WIPO
excerpt reveal that it refers to a process used in the
papermaking industry.3 One of the NEXIS article excerpts
refers to use of a wet combustion process in oil recovery;
another refers to use of the process to remove mercury from
liquid hydrocarbons. The majority of the patent and NEXIS
article excerpts, as applicant acknowledges, refer to a wet
combustion process used on sludge that employs high
temperatures and high pressures. The lengthy excerpt from
the Sanitary Engineering and Public Health Handbook,
discussing conditioning methods for treatment of sludge, to
facilitate separation of water and organic or inorganic
3 Another patent refers to a process used in conjunction with
treatment of combustion exhaust gas, but it appears to be a
Ser No. 76/254,783
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solids, aptly explains the high temperature, high pressure
process:
The wet air oxidation process has been
commercialized and patented as the ZIMPRO
process. This process has also been known as wet
incineration, wet combustion, and wet oxidation
processes. Wet air oxidation does not require
preliminary dewatering or drying as required by
conventional combustion processes. Water can be
present up to 99 percent in this process, whereas
in conventional combustion it must be reduced to
much lower levels to make incineration practical.
Applicant, while acknowledging that "wet combustion"
is a term of art in various industries or when used in
conjunction with certain processes or products, denies that
the term has any descriptive significance when used in
conjunction with applicant's product. Specifically,
applicant argues that its product does not use percloric
acid, as does the process utilized to remove mercury from
liquid hydrocarbons; and its product does not use high
pressure or high temperatures, as other sludge treatment
products/processes do. Applicant asserts that its product
is "a device that may be fitted into any conventional
septic tank" and uses a motor to draw "tiny air bubbles …
into the tank waste water," with the oxygen from the air
providing support for aerobic bacteria that promotes the
reference not to a wet combustion process used on exhaust gas
but, rather, to a wet process used on combustion exhaust gas.
Ser No. 76/254,783
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breakdown of sludge and odor causing elements in waste
water. Brief, p. 4.
The precision of this description of applicant's
product is, however, a bit mystifying, as it aptly
describes the Aerob-A-Jet product for which applicant
submitted a brochure. However, when applicant submitted
the brochure, it said this was for a different product than
that which it intends to market under the WET COMBUSTION
designation. Accordingly, we do not find applicant's
description of its product and its AEROB-A-JET brochure
very probative in establishing that its "sewage treatment
aeration units to enhance decomposition of waste water
sludge" are markedly different from products of others
alluded to by the evidence of record and that utilize the
type of "wet combustion" process also referred to as the
"wet incineration" or "wet oxidation" process.4
In addition, we note that the AEROB-A-JET products
appear to be units that are added to a septic tank or waste
lagoon (for an agricultural or industrial application) and
do not involve movement of the sewage or wastewater into
the AEROB-A-JET units so much as the units act on the
sewage or wastewater at collection points. It does not
4 In its response to the examining attorney's initial office
action, applicant admitted that its product involves oxidation.
Ser No. 76/254,783
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appear that the high pressure, high temperature process
products or systems discussed in the various items of
evidence in the record could operate in the same manner as
the AEROB-A-JET products and, instead, require movement of
the sewage or wastewater through a tank or unit that is
constructed to provide the necessary treatment as the
aqueous material flows through the unit.
While it does not appear that the AEROB-A-JET units
are capable of effecting a high pressure, high temperature
"wet combustion" process of the type alluded to in the
evidence, we do not read the identification of goods in
applicant's application as necessarily restricted to the
AEROB-A-JET type of unit. "Sewage treatment aeration
units" is a phrase that can encompass both equipment fitted
to an existing septic tank or wastewater lagoon as well as
aeration tanks that can be utilized in sewage or wastewater
treatment systems.5
5 We take judicial notice of the following:
aeration tank [engineering] A fluid-holding tank with provisions
to aerate its contents by bubbling air or another gas through the
liquid or by spraying the liquid into the air.
McGraw-Hill Dictionary of Engineering 10 (1997)
aeration Bringing air into contact with a fluid by bubbling
through or by agitation. Compressed air, providing oxygen to
promote bacterial action, is blown into a reagent tank in the
treatment of sewage. …
Science & Technology Encyclopedia 8 (2000).
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In short, while applicant views the product it intends
to market under the WET COMBUSTION designation as
distinctly different in type from products that utilize
compressed air and high heat to react with wastewater as it
passes through a tank or processing unit, we view
applicant's identification as encompassing tanks or units
of this type.
Applicant argues that the designation WET COMBUSTION
is a "tongue-in-cheek" reference to a process that does not
involve combustion and individuals without knowledge of
applicant's sewage treatment aeration units would have
difficulty determining the nature of the goods merely by
viewing the mark. Of course, as already noted, the
designation is not to be considered in the abstract but in
conjunction with the identified goods. For prospective
purchasers of such a sophisticated product, WET COMBUSTION
will not be viewed as a tongue-in-cheek designation for a
process that does not involve combustion but, rather, as a
term of art with a readily understood meaning.
The examining attorney must establish a reasonable
predicate for the refusal, based on substantial evidence,
i.e., more than a scintilla of evidence. In re Pacer
Technology, __ F.3d __, 67 USPQ2d 1629 (Fed. Cir. 2003).
In this case, we find that the examining attorney has
Ser No. 76/254,783
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established a prima facie case for refusal. Applicant has
not overcome this showing.
Decision: The refusal of registration under Section
2(e)(1) is affirmed.