Bishamon Industries Corp.

Trademark Trial and Appeal Board

Aug 17, 2001

No. 75404247 (T.T.A.B. Aug. 17, 2001)

8/17/01 Paper No. 17

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UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Bishamon Industries Corporation
________

Serial No. 75/404,247
_______

Antonio R. Durando, Esq. for Bishamon Industries Corporation.

Vivian Micznik First, Trademark Examining Attorney, Law Office
104 (Sidney Moskowitz, Managing Attorney).
_______

Before Cissel, Hohein and Bucher, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

Bishamon Industries Corporation has filed an
application to register the term "AIRPOWER" for "material
handling equipment; namely, pneumatic or hydraulic lift tables
and tilt tables."1

1 Ser. No. 75/404,247, filed on December 12, 1997, which is based on an
allegation of a bona fide intention to use the term "AIRPOWER" in
commerce.

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/404,247
2
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the
basis that, when used in connection with applicant's goods, the
term "AIRPOWER" is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested. We affirm the refusal to
register.
It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning of
Section 2(e)(1) of the Trademark 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 or services. See
In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-
18 (CCPA 1978). It is not necessary that a term describe all of
the properties or functions of the goods or services in order
for it to be considered to be merely descriptive thereof;
rather, it is sufficient if the term describes a significant
attribute or idea about them. Moreover, 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
Ser. No. 75/404,247
3
of the goods or services because of the manner of its use. See
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
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).
Applicant, while conceding in its brief "[t]he fact
that the words 'air' and 'power' are individually generic and
descriptive" for pneumatic lift tables and tilt tables, contends
nonetheless that such fact "does not prevent the combination
[from] being registrable as a trademark."2 In particular, as
stated in its response to the Office Action which issued after
the application was remanded in order to make of record evidence
gathered from a search of the "NEXIS" database in support of the
refusal to register:

2 Applicant also argues in its brief that, because its goods are
identified in the application as "pneumatic or hydraulic lift tables
and tilt tables" (emphasis added), "the goods may or may not be 'air-
powered,' since they are also hydraulically powered, with no air
system at all." Applicant consequently insists that, "[a]s such, the
mark does not describe a quality or characteristic of the goods, nor
does it convey an immediate idea of the nature of the goods."
However, as the Examining Attorney correctly points out in her brief,
"[t]he law is settled that registration should be refused if the mark
is [merely] descriptive of any of the goods or services for which
registration is sought," citing In re Quik-Print Copy Shop, Inc., 616
F.2d 523, 205 USPQ 505, 507 (CCPA 1980) and In re Richardson Ink Co.,
511 F.2d 559, 185 USPQ 46, 47 (CCPA 1975). Thus, if the term
"AIRPOWER" is merely descriptive of applicant's pneumatic material
handling equipment, the refusal to register is proper irrespective of
the fact that applicant's goods also include hydraulic material
handling equipment.

Ser. No. 75/404,247
4
Based on the [NEXIS] excerpts, the
Examining Trademark Attorney noted that the
term "AIRPOWER" is commonly used to describe
a product's pneumatic feature. The
applicant does not disagree with the fact
that the word "air-power" (and related
terms, such as air power and air-powered)
refer to items powered by air and,
therefore, are used to describe goods
characterized by that feature. What the
applicant respectfully submits, in support
of its argument for registrability, is that
the mark "AIRPOWER," while it may be
suggestive, does not describe a significant
feature, function or characteristic of ...
its goods, and does not convey the immediate
impression of the precise nature of the
goods. In essence, the mark is not believed
to reach the threshold of descriptiveness
required for denial of registration.

According to applicant, while its goods "consist of
machinery to lift and handle material," it is nevertheless the
case that, as asserted in its brief:
The working and most recognizable features
of the products lie in the table used to
support the load and the mechanisms provided
to raise, lower, tilt, and otherwise
maneuver the table. The power source is
incidental and it could be electrical,
hydraulic, pneumatic or even manual. The
power source does not define the equipment,
its uses or its performance.

In view thereof, applicant urges that "the mark does not convey
an immediate impression of the precise nature of the appellant's
goods or ... a [significant] feature of the goods." Instead,
applicant maintains that the term "AIRPOWER" is suggestive
because it "requires imagination, thought and perception to
Ser. No. 75/404,247
5
reach the conclusion that it refers to a lift table and similar
equipment which may be pneumatically powered" and that such term
"could just as easily suggest that the lift tables provide a
powerful tool to lift heavy loads 'in the air.'"
The Examining Attorney, on the other hand, contends
that the record establishes that the term "AIRPOWER" is merely
descriptive of a significant feature of applicant's pneumatic
lift and tilt tables, namely, the fact that such goods are
operated by air pressure and thus constitute air powered or air-
power material handling equipment. Of record in support thereof
is a definition from The American Heritage Dictionary of the
English Language (3rd ed. 1992) which sets forth the word
"pneumatic," in relevant part, as an adjective meaning "1. Of or
relating to air or other gases" and "3. a. Run by or using
compressed air: a pneumatic drill. b. Filled with air,
especially compressed air: a pneumatic tire." Similarly, with
her brief, the Examining Attorney has submitted a definition,
which we judicially notice, from the on-line version of the
Cambridge International Dictionary of English (2000) which lists
the word "pneumatic" as an adjective connoting "operated by air
pressure, or containing air."3

3 It is settled that the Board may properly take judicial notice of
dictionary definitions. See, e.g., Hancock v. American Steel & Wire
Co. of New Jersey, 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953) and
University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co.,
Ser. No. 75/404,247
6
In addition, the Examining Attorney notes that the
record contains evidence "retrieved from the "NEXIS" database
which demonstrates that the term 'airpower' (including its
variations, such as 'air-power' and 'air power') is used to
describe the pneumatically powered characteristic of equipment."
Pertinent examples thereof include the following (emphasis
added):
"The increasing use of air-power tools,
cordless and portable-electric tools ... are
major trends in industrial tools .... ....
Higher-powered pneumatic tools
The major benefit of air-power tools is
that they eliminate sparking, which can
ignite a variety of fumes common in
industrial environments." -- Industrial
Maintenance & Plant Operations, December 31,
1999;

"On most new construction work the
hammers are air-powered ....
....
With hammers, air power is nice but
impractical for most do-it-yourselfers.
.... Most of the carpenters I've worked
with building custom homes with complicated
framing use both air power and arm power.
They use heavy, pneumatic air hammers for
production jobs ..., but do most of the
stick-building the old fashioned way ...."
-- Des Moines Register, October 15, 1999;

"Pneumatic lifts are becoming more
popular in some industries because of the
greater availability of air throughout the
plant.

Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983).

Ser. No. 75/404,247
7
Some Pneumatic lifts use air power to
lift while other designs use air strictly as
a counterbalance." -- Material Handling
Engineering, July 1993 (article headlined:
"Lift tables: positioning power to the
worker; materials handling equipment"); and

"All our equipment is either explosion-
proof or pneumatic so it runs on air power,
not electricity." -- New York Times, June
30, 1991.

In view of such evidence, the Examining Attorney
maintains that "pneumatic (also known as 'air power') equipment
has distinct advantages ... when compared with electrically
powered equipment," including safety. She concludes therefrom
that, in particular, "the power source of lifts and tilt tables
is a significant characteristic of the applicant's goods" and
that the term "AIRPOWER" merely describes its pneumatic lift and
tilt tables "because the term AIRPOWER means 'pneumatic.'"
Upon careful consideration of the arguments and
evidence presented, we agree with the Examining Attorney that,
in light of the dictionary definitions and "NEXIS" story
excerpts, the term "AIRPOWER," which is simply a telescoped form
of the words "air power," immediately describes, without
speculation or conjecture, a significant characteristic or
feature of applicant's pneumatic lift tables and pneumatic tilt
tables, namely, that such goods are air-powered or air power
material handling equipment. Clearly, as the Examining Attorney
points out in her brief, "when used on pneumatic equipment,
Ser. No. 75/404,247
8
consumers will readily understand the term to indicate that the
goods are pneumatic since the term AIRPOWER is commonly used to
describe the pneumatic operation of tools and equipment." There
plainly is nothing in such term which is incongruous, ambiguous
or otherwise subject to different connotations. No imagination,
cogitation or mental gymnastics, therefore, is required in order
for purchasers and/or users of pneumatic lift and tilt tables to
immediately recognize that the term "AIRPOWER" designates the
pneumatic means of operation of such products, a characteristic
or feature of the goods which is integral to the utility, safety
and commercial appeal thereof.
Moreover, as noted previously, applicant has admitted
that "the word 'air-power' (and related terms, such as air power
and air-powered) refer to items powered by air and, therefore,
are used to describe goods characterized by that feature" and
the "NEXIS" excerpt from the article in Material Handling
Engineering in particular makes it plain that, not only do some
pneumatic lift tables use air power to lift materials, but such
tables are becoming more popular in certain industries. When
viewed in this context, it is readily apparent that the term
"AIRPOWER," rather than suggesting, as argued by applicant, that
its pneumatic "lift tables provide a powerful tool to lift heavy
loads 'in the air,'" instead immediately conveys, with the
requisite particularity, a significant characteristic or feature
Ser. No. 75/404,247
9
of such goods. The term "AIRPOWER" is therefore merely
descriptive of applicant's goods within the meaning of the
statute.
Decision: The refusal under Section 2(e)(1) is
affirmed.