Uranus Lab-oratories, Inc.

Trademark Trial and Appeal Board

Jan 22, 2003

No. 76109182 (T.T.A.B. Jan. 22, 2003)

Mailed: January 22, 2003
Paper No. 13
BAC
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Uranus Laboratories, Inc.
________
Serial No. 76/109,182
_______
Diane B. Melnick of Fross Zelnick Lehrman & Zissu, P.C. for
Uranus Laboratories, Inc.
Brendan Regan, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
_______
Before Simms, Hohein and Chapman, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
Uranus Laboratories, Inc. (an Arizona corporation) has
filed an application to register on the Principal Register
the mark THE TECHNO-POPS for “musical sound recordings and
video recordings featuring animation and entertainment;
downloadable musical sound recordings and downloadable
video recordings featuring animation and entertainment” in
International Class 9. The application was filed on August
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/109182
2
11, 2000 based on applicant’s assertion that it “has, or
had as of the application filing date,” a bona fide
intention to use the mark in commerce.
The Examining Attorney has refused registration on the
ground that applicant’s mark, THE TECHNO-POPS, is merely
descriptive of applicant’s goods under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. §1052(e)(1).
When the refusal was made final, applicant appealed to
this Board. Both applicant and the Examining Attorney have
filed briefs. Applicant did not request an oral hearing.
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 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
Ser. No. 76/109182
3
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). That
is, 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); and
In re American Greetings Corp., 226 USPQ 365, 366 (TTAB
1985).
The Examining Attorney contends that the term “techno-
pop” refers to a style of music and is commonly used in the
music and entertainment industries; that applicant’s goods
feature “techno-pop” music; and that the term THE TECHNO-
POPS is merely descriptive of a feature and characteristic
of the goods. The Examining Attorney further contends that
there is nothing incongruous or unique about the
combination of the words “techno” and “pop” into THE
TECHNO-POPS; that the addition of the word “the” and the
letter “s” does not change the commercial impression of the
mark as relating to “techno-pop” music; that even if the
term “techno-pop(s)” does not appear as a generic kind of
music genre on certain web sites (e.g., yahoo, amazon),
Ser. No. 76/109182
4
such is not determinative because those sites do not list
several different types of music (e.g., polka, waltz)1; and
that a mark is merely descriptive if it merely describes
any, but not necessarily all, of the identified goods in an
application.
The Examining Attorney submitted (i) photocopies of
several excerpted stories retrieved from the Nexis
database, and (ii) photocopies of several third-party web
pages from the Internet, all demonstrating use of “techno-
pop” to refer to a style of music. Examples of the
excerpted stories retrieved from the Nexis database are
reproduced below (emphasis in original):
Headline: The Fine Arts
... Reviewers are calling “Blast!” a
blend of mind-blowing – and loud –
music reminiscent of “Stomp” and a
world class drum and bugle corps. ....
He [artistic director James Mason]
blends classical, blues, jazz, rock and
techno-pop music into the performance.
.... “St. Louis Post Dispatch,”
September 6, 2001;
Headline: ‘Spending the Soles of Your
Shoes’
... Santiago [Cuba], for the majority
of its nearly 500 years, has been home
to one of the oldest and most authentic
street Carnivals in Latin America....
1 The Examining Attorney’s request that the Board accept the
dictionary definitions of “polka” and “waltz” submitted with his
brief on the case is granted. See The University of Notre Dame
du Lac v. J.C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). See
also, TBMP §712.01.
Ser. No. 76/109182
5
Carnival incorporates all of Cuba’s
myriad music styles—rumba, mambo,
salsa—with plenty of borrowed techno-
pop and samba.... “Chicago Tribune,”
August 2, 2001;
Headline: Colby Hip-hop DJ Boasts
Global Reach
... Colby is one of 11 colleges and
universities that are part of the Web
site collegemusic.com, a cyberspace
location that gives listeners a
selection of music that ranges from hip
hop to classical to techno pop....
“Central Maine Morning Sentinel,” March
10, 2001;
Headline: Best Bets Saturday 3/10
...
Pop Music
The ‘80s pop revival shows no sign of
abating—now L.A. techno-pop group
Animotion is back on the road, reviving
hits such as “Obsession,” “Room to
Move” and other material from the three
albums the group released from 1985-
1989.... “Los Angeles Times,” March 8,
2001;
Section: Washington Weekend,
Heading: Bing, Bang, Boom
Sit back and be amazed, as “Blast!”
blows, pounds and whirrs across the
stage. That’s all you can do anyway.
This energetic musical spectacle
bridges the gap between classical,
blues, jazz, rock ‘n’ roll and techno-
pop music.... “The Washington Times,”
December 21, 2000;
Headline: Cooking School Puts on a
Show
... the Taste of Home Cooking School
held on a rainy Wednesday evening
recently had the frenzied air of a
Hollywood game show.... Matt McLemore,
a WTIM talk show host, served as emcee,
Ser. No. 76/109182
6
conferring prizes on audience members
who mastered dumber-than-dirt quizzes.
... During breaks, blaring techno-pop
music shook the house.... “The State-
Journal Register (Springfield, IL),”
November 22, 2000; and
Headline: Femininity at Heart of
Concert
... The concert opened with her most
current piece titled “Meet the
Company,” previously called “Music
Response.” It was light-hearted,
female power dance in a techno-pop jazz
style with music by the Chemical
Brothers.... “Albuquerque Journal,”
November 12, 2000.
The following excerpts from third-party Internet web
sites further illustrate the descriptive meaning of
“techno-pop” in the music field:
The Roots of Techno, By Dan Sicko,
...Berry Gordy’s Motown may no longer
rule the airwaves, but Detroit has
found a new beat. Since 1981, the
compositions of techno visionary, Juan
Atkins have sent shock waves through
contemporary music. On the heels of
the German group Kraftwerk, he and
partner Rick Davis formed Cybotron,
fusing austere European techno-pop with
street-level funk.... www.wired.com;
Laya Fisher—A long time ago in a galaxy
far away there was a princess Leia. In
the present, a new princess emerges.
Laya Fisher’s songs are a hook-laden,
techno-pop treat. And read the lyrics.
No fluff here.
... [quote from a review] Can you make
‘pure’ techno-pop? If so, this
American working in Australia has
pulled it off.... www.cdbaby.com; and
Ser. No. 76/109182
7
The World of ProPiano.com
CD Ryuichi Sakamoto Piano Works CD
Pioneer of techno-pop, Academy Award
winning film composer, touring
performer, Ryuichi Sakamoto enjoys a
diverse career as an artist whose music
continually challenges traditional
categories....
www.shop.store.yahoo.com.
Applicant, in urging reversal of the refusal to
register, argues that the mark THE TECHNO-POPS is
suggestive, not merely descriptive, of applicant’s goods
because the mark “suggests one aspect of the goods, but
does not describe any function or feature of them” (brief,
p. 3); that applicant intends to use the mark on an
“animated video product” as well as recorded music; that
the mark does not convey any specific information about the
nature of applicant’s “recorded entertainment products,
which contain video and audio elements, in the context of a
story” (id.); that the Examining Attorney’s evidence does
not establish that “techno-pop” is a style of music and
further does not establish or even remotely suggest that
“techno-pop(s)” is merely descriptive of animated
entertainment products; that the mark is incongruous in its
combination of the term “TECHNO, which is an eclectic music
type, marked especially by its non-mainstream melodies and
lyrics,” and “Pop” which “refers to a mainstream, radio-
friendly genre of popular music” (id. -- emphasis in
Ser. No. 76/109182
8
original); that based on the additions of the word “the”
and the letter “s,” the primary connotation of the mark is
the name of a singing group comprised of individual people,
not a genre of music, making the commercial impression
unique; that applicant submitted evidence to refute the
Examining Attorney’s position that “techno-pop” describes a
style of music (e.g., photocopies of a search of the
USPTO’s Trademark Electronic Search System (TESS) to show
the word “technopop” does not appear in identifications of
goods); that the Examining Attorney’s evidence shows that
there is colloquial use of “techno-pop” by various
journalists, but does not prove the broad conclusion that
the term describes a style of music; and that any doubt
regarding mere descriptiveness is to be resolved in
applicant’s favor.
The evidence submitted by the Examining Attorney
clearly establishes that “techno-pop” is used to identify a
particular style or genre of music. We find that this is
not refuted by any evidence submitted by applicant (e.g.,
applicant’s search of USPTO records for “(technopop or
techno)[gs] and live[ld] and 009[ic]”).
Nor are we persuaded that when applicant adds the term
“the” and the letter “s” to form THE TECHNO-POPS the merely
descriptive nature of the term to the consuming public is
Ser. No. 76/109182
9
overcome. Even if consumers could view THE TECHNO-POPS as
the name of a singing group, applicant has applied for
goods, not services such as an entertainment service of a
singing group, and the issue of mere descriptiveness must
be considered in relation to the involved identified goods.
Moreover, those consumers would presumably expect “techno-
pop” music to be the style of music performed by such a
group. Certainly in considering THE TECHNO-POPS used on
musical recordings and video recordings, purchasers would
immediately understand that applicant’s musical recordings
and video recordings include “techno-pop” music.
Moreover, the term does not create an incongruous or
creative or unique mark. We are not persuaded by
applicant’s argument that the purchasing public would think
of the incongruous joining of a term for non-mainstream
music with one for mainstream music. Rather, we believe
the relevant consumers will relate THE TECHNO-POPS used on
musical recordings and video recordings to the style of
music known as “techno-pop.”
Applicant’s mark, THE TECHNO-POPS, if used on
applicant’s identified goods, thus immediately describes,
without need of conjecture or speculation, the nature of
applicant’s goods, as discussed above. Nothing requires
the exercise of imagination or mental processing or
Ser. No. 76/109182
10
gathering of further information in order for purchasers of
and prospective customers for applicant’s goods to readily
perceive the merely descriptive significance of the term
THE TECHNO-POPS as it pertains to applicant’s goods. See
In re Intelligent Instrumentation Inc., 40 USPQ2d 1792
(TTAB 1996); and In re Time Solutions, Inc., 33 USPQ2d 1156
(TTAB 1994).
Finally, applicant’s argument that the term THE
TECHNO-POPS is not merely descriptive of its animated video
product is unconvincing. Purchasers of applicant’s video
product would still assume that the video recordings
contain “techno-pop” music. And even if purchasers did not
so assume with regard to the video product, a mark is
merely descriptive if it merely describes any of the listed
goods. That is, registration should be refused if a term
or phrase is merely descriptive of any of the goods (or
services) for which registration is sought. The fact that
a term or phrase may not be merely descriptive of some of
the goods (or services) listed in the identification does
not mean that it is not merely descriptive of the others.
See In re Quik-Print Copy Shop, Inc., 616 F.2d 523, 205
USPQ 505 (CCPA 1980); In re Richardson Ink Company, 511
F.2d 559, 185 USPQ 46 (CCPA 1975); and In re Analog Devices
Inc., 6 USPQ2d 1808 (TTAB 1988), aff’d unpub’d but
Ser. No. 76/109182
11
appearing at 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir.
1989). See also, 2 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition, §11:51 (4th ed. 2001).
In view of the foregoing, we find that THE TECHNO-POPS
when used on applicant’s musical sound recordings and video
recordings, directly conveys information to prospective
purchasers about a significant feature of the goods, namely
the type of music recorded thereon, and thus clearly is
merely descriptive of the identified goods. See In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and
In re Omaha National Corporation, 819 F.2d 1117, 2 USPQ2d
1859 (Fed. Cir. 1987).
Decision: The refusal to register on the ground that
the mark is merely descriptive under Section 2(e)(1) of the
Trademark Act is affirmed.