Hypercom Corp.

Trademark Trial and Appeal Board

Sep 29, 2004

No. 76424261 (T.T.A.B. Sep. 29, 2004)

Mailed:
29 September 2004
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Hypercom Corporation
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Serial No. 76424261
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Laura J. Zemah of Snell & Wilmer, LLP for Hypercom
Corporation.
Caroline Fong Weimer, Trademark Examining Attorney, Law
Office 115 (Tom Vlcek, Managing Attorney).
_______
Before Simms, Rogers, and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
On June 24, 2002, applicant (Hypercom Corporation)
applied to register the mark SECURITY BIOMETRICS, in typed
form, on the Principal Register for “computer hardware and
software for use with identification systems and point-of-
sale transaction systems for identifying and verifying
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser. No. 76424261
2
identity of individuals using fingerprint, voice, eye and
facial feature data,” in International Class 9.1
The examining attorney refused to register applicant’s
mark on the ground that the mark was merely descriptive
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1). The examining attorney argues (Brief at 3)
that the “use of biometric data within the system …
provides a means of secure authentication” and that the
applicant “has combined the descriptive words for their
descriptive meaning.” Applicant contends (Reply Brief at
2-3) that its goods are “not a fingerprinting system but
rather a positive identification system that uses some
aspects of the fingerprint to create a natural signature to
protect consumers and eliminate fraud.” Applicant goes on
to argue (Reply Brief at 3) that its mark is not
descriptive of the identified goods because they “do not
use fingerprint images to verify identification but instead
[use] a vector.”
After the examining attorney made the refusal final,
applicant appealed to this board.
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics
1 Serial No. 76424261 was based on a allegation of a bona fide
intention to use the mark in commerce.
Ser. No. 76424261
3
of the goods or services or if it conveys information
regarding a function, purpose, or use of the goods or
services. In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215, 217 (CCPA 1978). See also In re MBNA
America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780
(Fed. Cir. 2003) (A “mark is merely descriptive if the
ultimate consumers immediately associate it with a quality
or characteristic of the product or service”); In re Nett
Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001).
To be merely descriptive, a term need only describe a
single significant quality or property of the goods. In
re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.
1987); Meehanite Metal Corp. v. International Nickel Co.,
262 F.2d 806, 120 USPQ 293, 294 (CCPA 1959). We look at
the mark in relation to the goods or services, and not in
the abstract, when we consider whether the mark is
descriptive. Abcor, 200 USPQ at 218.
First, we examine the evidence concerning the meaning
of the terms “biometrics” and “security,” when they would
be used with applicant’s goods.
Biometrics is the science and technology of measuring
and statistically analyzing biological data. In
information technology, biometrics usually refers to
technologies for measuring and analyzing human body
characteristics such as fingerprints, eye retinas and
Ser. No. 76424261
4
irises, voice patterns, facial patterns and hand
measurements, especially for authentication purposes.
***
Fingerprint and other biometric devices consist of a
reader or scanning device, software that converts the
scanned image into digital form, and wherever the
data is to be analyzed, a database that stores
biometric data for comparison with previous records.
***
Fingerprint, facial, or other biometric data can be
placed on a smartcard and users can present both the
smartcard and their fingerprints or faces to
merchants, banks, or telephones for an extra degree
of authentication.
SearchSecurity.com Definitions.
Recently the term “Biometrics” has been used to refer
to the emerging field of technology devoted to
identification of individuals using biological
traits, such as those based on retinal or iris
scanning, fingerprints, or face recognition.
Biometrics Journal, “Definition of Biometrics.”
Biometrics are automated methods of recognizing a
person based on a physiological or behavioral
characteristic. Among the features measured are:
face, hand geometry, handwriting, iris, retinal,
vein, and voice. Biometric technologies are becoming
the foundation of an extensive array of highly secure
identification and personal verification solutions.
As the level of security breaches and transaction
fraud increases, the need for highly secure
identification and personal verification technologies
is becoming apparent… Enterprise-wide network
security infrastructures, government IDs, secure
electronic banking, investing and other financial
transactions, retail sales, law enforcement, and
health and social services are already benefiting
from these technologies.
Biometric Consortium, “An Introduction to Biometrics.”
Ser. No. 76424261
5
Applicant’s goods will be used with identification
systems for identifying and verifying the identity of
individuals using fingerprint, voice, eye, and facial
feature data. Similar to the excerpts on biometrics
above, applicant admits that its product would be designed
“to protect consumers and eliminate fraud.” Reply Brief
at 3. As the evidence above indicates, fingerprint, eye,
voice, and facial data are the subject matter of
biometrics. The use of this data is needed for “highly
secure identification.” Applicant also admits that its
“hardware and software scan the fingerprint, extract a
vector, and discard the fingerprint image.” Reply Brief
at 2. While applicant’s identification of goods is not
limited to this use, even applicant’s argument indicates
that biometric data (fingerprint information) is used to
provide positive identification and verification. The
record certainly supports the conclusion that hardware and
software that use fingerprint, voice, eye, and facial
feature data for identifying and verifying the identity of
individuals are using biometric information. Therefore,
the term “Biometrics” would describe applicant’s goods.
The other term in applicant’s mark is the word
“Security.” This term also would have descriptive
significance when used with applicant’s goods. Biometric
Ser. No. 76424261
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information provides solutions to “security breaches and
transaction fraud.” According to the record, network
security infrastructures and secure electronic banking are
already benefiting from this technology. Applicant has
submitted a definition of “security” that, inter alia,
includes the following: “Measures taken to guard against
espionage or sabotage, crime, attack or escape.” Response
dated May 5, 2003. The use of biometric information would
qualify as a measure to guard against sabotage, crime, or
attack upon information in a database. Therefore, the
term “security” describes hardware and software used to
verify the identity of individuals to prevent unauthorized
access to data and thereby keep the information secure.
However, despite the descriptiveness of the
individual terms, it is the mark as a whole that we must
ultimately consider in our determination of whether
applicant’s mark is merely descriptive. We emphasize that
the issue of whether the mark is descriptive is viewed
from the perspective of the potential purchasers of
applicant’s software and not necessarily from those who
input their personal information for verification. We
find that, to the potential purchasers of applicant’s
software, there is nothing incongruous or vague about the
term SECURITY BIOMETRICS for applicant’s identified
Ser. No. 76424261
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computer hardware and software. The mark would simply
describe the fact that applicant’s goods use biometric
data to improve or enhance security. For example, the
information of record contains a reference to another
article entitled “Biometric Management and Security for
the Financial Services.” See Biometric Consortium.
Finally, we note that applicant’s goods are
identified as hardware and software used with point-of
sale transaction systems that are used for identifying and
verifying the identity of individuals using fingerprint,
voice, eye and facial features. Therefore, while
applicant argues that “no fingerprint images are
transmitted or stored,” this is not significant because
nothing in applicant’s identification of goods requires
the transmission of the actual fingerprints themselves as
opposed to information culled from the fingerprints. In
addition, applicant’s goods are not limited to
transmitting information on fingerprints. They obviously
include using voice, eye, and facial features along with
fingerprints for identifying and verifying individuals.
As discussed previously, this data would be biometric
information.
We have no doubts that when prospective purchasers of
applicant’s software encounter the term SECURITY
Ser. No. 76424261
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BIOMETRICS, the term would immediately describe
applicant’s software that uses biometric information to
verify the identity of individuals. Therefore, we affirm
the refusal to register.
Decision: The refusal to register under Section
2(e)(1) of the Trademark Act is affirmed.