Thomas J. Manski

Trademark Trial and Appeal Board

Apr 28, 2004

No. 76203211 (T.T.A.B. Apr. 28, 2004)

Mailed: April 28, 2004
Paper No. 15
TEH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Thomas J. Manski
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Serial No. 76203209
Serial No. 76203211
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Peter Loffler for Thomas J. Manski.
Brian D. Brown, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Hanak, Walters and Holtzman, Administrative Trademark
Judges.
Opinion by Holtzman, Administrative Trademark Judge:
The above applications have been filed by Thomas J. Manski
to register the marks FLAT VUE1 and FLAT VU2 for the following
goods, as amended:
Flat video display devices in the nature of monitors,
computer displays, laptop computers, notebook computers,
televisions, cellular phones, beepers, digital assistants,
1 Application Serial No. 76203209, filed January 31, 2001, based on
applicant's assertion of a bona fide intention to use the mark in
commerce.
2 Application Serial No. 76203211, filed January 31, 2001, based on
applicant's assertion of a bona fide intention to use the mark in
commerce.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial Nos. 76203209 and 76203211
2
portable Internet devices, medical test equipment, namely
MRI monitoring screens, computer tomography monitoring
screens, and interaoperative monitoring screens for
endoscopy and stereotactic surgical procedures, and
electronic advertising displays. In Class 9.
The trademark examining attorney initially refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), in each application on the ground that the
mark is either merely descriptive or deceptively misdescriptive
of the identified goods.
In response to the refusal, applicant amended the
identification of goods in both applications, including an
amendment from "video display devices," to "flat video display
devices," and proffered a disclaimer of the word "Flat."
However, applicant continued to maintain that FLAT VUE and FLAT
VU, as a whole, are not descriptive.
When the refusal in each case was made final, applicant
appealed. Applicant and the examining attorney have filed
briefs,3 but an oral hearing was not requested. The examining
attorney has made it clear, in his briefs, that the sole basis
for refusal on appeal in each case is whether the mark is merely
descriptive. Because the issues in these two applications are
substantially the same, the appeals have been consolidated and
are being treated in a single decision.
3 These applications were assigned to a different examining attorney to
write the appeal briefs.
Serial Nos. 76203209 and 76203211
3
The examining attorney argues that FLAT VUE and FLAT VU are
merely descriptive in that "flat" describes a quality or feature
of applicant's video display devices and that "these devices
provide a VIEW and can also be used to VIEW images...." Brief,
p. 6. Specifically, the examining attorney contends that "view"
and thus, VUE and VU as phonetic equivalents of "view," is either
a descriptive verb in that it describes the fact that "one may
'view' or watch a display monitor," or a descriptive noun in that
display monitors "provide an individual or group with a way of
seeing or watching images on a screen." Brief, p. 5.
In support of his position, the examining attorney has
submitted dictionary definitions of "flat," a number of full-text
articles from the NEXIS database showing use of "flat" in
connection with video display devices, and dictionary definitions
of "view" that include, "[a] way of showing or seeing something,
as from a particular position or angle: a side view of the
house"; and "[t]o look at; watch: view an exhibit of etchings."
The examining attorney has also submitted excerpts of Nexis
articles showing uses of "view" which, according to the examining
attorney, show that "view" is "routinely used to describe the
purpose, use or vantage point of a video display panel or
monitor." Brief, p. 5. Examples of these excerpts are set
forth below (emphasis added):
Serial Nos. 76203209 and 76203211
4
The unit will work with a wide range of video display types
including plasma, LcoS, LCD and DLP single-lens projection,
HDTV direct view, and rear projection. TWICE (January 8,
2002).
Consumers now project DV on digital projectors or stream it
on the Internet - and are mystified to find extra, sometimes
unwanted, detail along the edges of their images. Ditto for
Avid or Final Cut Pro editors who view images on a computer
display. Millimeter (January 2002).
Multi-view video displays test recordings, filmed from
several angles, on either a split-screen or a quad-screen.
SwRI has the option to display up to four different
recordings at a time or to switch to one view at a time,
much like changing a channel on a television. Business Wire
(November 2, 2001).
The panoramic view configuration is good for flight
simulator-type visualization or for displaying several
panels of data and video displays like a virtual control
room. Advanced Imaging (May 1, 2001).
Before you imagine a brave new world overrun with billboard-
size video displays, it helps to understand that smart video
aims to be transparent, to integrate virtual views built
unobtrusively into the furniture and architecture of the
room. AV Video Multimedia Producer (May 1, 2001).
A term is merely descriptive within the meaning of
Section 2(e)(1) if it immediately conveys knowledge of the
ingredients, qualities, or characteristics of the goods with
which it is used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009
(Fed. Cir. 1987). On the other hand, a term is suggestive if, in
the context of those goods, a purchaser must use imagination,
thought, or some type of multi-stage reasoning to understand the
Serial Nos. 76203209 and 76203211
5
term's significance. See Plyboo America Inc. v. Smith & Fong
Co., 51 USPQ2d 1633 (TTAB 1999).
The question of whether a particular term is merely
descriptive must be determined not in a vacuum or on the basis of
speculation, but in relation to the goods for which registration
is sought. See In re Engineering Systems Corp., 2 USPQ2d 1075
(TTAB 1986).
There is no question that "flat" describes a significant
characteristic of computer monitors, televisions and other such
video display devices. Applicant has not argued otherwise, and
in fact has essentially conceded the descriptive nature of this
word by using it descriptively in his identification of goods.
In any event, the evidence submitted by the examining attorney
clearly shows that "flat" is descriptive of certain significant
features of video display devices, namely the shallow physical
depth of the screen and the lack of curvature in the surface of
the screen. The question concerns the meaning of "view." If
"view" is descriptive of the identified goods, then its phonetic
equivalents, VUE and VU, are equally descriptive of those goods.
While the word "view" has a number of dictionary meanings,
none of those meanings conveys any immediate or precise
significance with respect to applicant's goods. The NEXIS
evidence submitted by the Examining Attorney is similarly
unpersuasive. The articles show that a "view" may be, for
Serial Nos. 76203209 and 76203211
6
example, "panoramic" or "direct" or "virtual." These words may
variously describe the nature or type of image viewed on a
display screen, or a viewing angle, position or perspective.
However, this evidence provides no support for the examining
attorney's contention that "flat" is similarly descriptive of
some aspect of a view. There is no evidence that "flat" like
"panoramic" or "virtual" describes a type of image or
perspective. There is no evidence that "flat" like "direct"
describes a viewing angle or position of the viewer. In fact,
the word "flat" in the context of video display devices, at least
on this record, describes the thinness and lack of curvature of
the screen, not the image on the screen or the way one sees the
screen. The view is not flat, the screen is flat. We also note
that the examining attorney submitted no evidence showing that
"view screen" or "flat view" describes a particular type of
screen, e.g., a "flat view screen."
Finally, we would point out that while a person can "view" a
flat screen, the record contains no evidence that the act of
viewing the screen is descriptive of the screen.
Thus, we find, based on this record, that while FLAT VUE and
FLAT VU may suggest applicant's goods, these terms do not
directly and immediately describe any particular aspect of the
goods.
Serial Nos. 76203209 and 76203211
7
We have made our determination that the marks are not
descriptive based on the record before us and keeping in mind
that any doubt on the issue of mere descriptiveness is resolved
in favor of applicant. A different record, perhaps presented in
the context of an inter partes proceeding, may produce a
different result.
As applicant has essentially conceded that FLAT is
descriptive and has indicated that he is willing to disclaim this
word, the following disclaimer will be entered in each
application:
No claim is made to the exclusive right
to use "FLAT" apart from the mark as shown.
Decision: The refusal to register in each case is reversed.
A disclaimer of "FLAT" is hereby entered in each application.