Ivani, LLC

Trademark Trial and Appeal BoardJan 15, 2021

88354318 (T.T.A.B. Jan. 15, 2021)

This Opinion is not a Precedent of the TTAB Mailed: January 15, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Ivani, LLC _____ Serial No. 88354318 _____ Kirk A. Damman of Lewis Rice LLC for Ivani, LLC. Michael Ebaugh, Trademark Examining Attorney, Law Office 108, Kathryn E. Coward, Managing Attorney. _____ Before Cataldo, Wolfson, and Heasley, Administrative Trademark Judges. Opinion by Heasley, Administrative Trademark Judge: Ivani, LLC (“Applicant”) seeks registration on the Principal Register of NETWORK PRESENCE SENSING (in standard characters) for “computer hardware and downloadable computer firmware to analyze data to detect human presence within an area,” in International Class 9.1 1 Application Serial No. 88354318 was filed on March 25, 2019, based on Applicant’s allegation of its bona fide intention to use the applied-for mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs and other entries on appeal are to the Board’s TTABVUE docket system. Serial No. 88354318 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s proposed mark under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that it is merely descriptive of Applicant’s identified goods. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal proceeded. We affirm the refusal to register. I. Analysis and Discussion Applicant identifies its goods as “computer hardware and downloadable computer firmware to analyze data to detect human presence within an area.” It explains that its product collects data in a given area (such as a hotel room, office, apartment, or residence) from the waves of energy emitted from existing IoT (Internet of Things) devices in the room—such as cell phones, tablets, wall sockets or light fixtures. When a human enters the area, disrupting the ordinary pathway of those signals, the product detects the human’s presence. This detection enables the product’s purchasers—those who own or manage the areas—to trigger adjustments in lights or temperature, or alert security, as appropriate.2 The issue is whether Applicant’s proposed mark, NETWORK PRESENCE SENSING, merely describes its identified goods. A. Applicant’s Arguments Applicant “does not dispute that a feature of its good involves detecting the presence of objects and people.”3 It contends, however, that the words “NETWORK” 2 See Applicant’s Dec. 6, 2019 Response to Office Action. 3 June 6, 2020 Response to Office Action at TSDR 7. Serial No. 88354318 - 3 - and “SENSING” “can have numerous meanings, [so] it is impossible to state with any assurance what significance will be attached to Applicant’s Mark when it is seen by the relevant customer….”4 The relevant issue, Applicant states, is “whether or not, upon a consumer being presented with the mark, said consumer can essentially guess the related goods and services.”5 “The word element ‘NETWORK’ is somewhat ambiguous in that it can be a very broad or a very narrow word, depending on the interpreter,”6 Applicant argues, analogizing to In re Hutchinson Technology, Inc., 852 F.2d 552, 7 USPQ2d 1490 (Fed. Cir. 1988) (“TECHNOLOGY” is a very broad term which includes many categories of goods, and does not convey an immediate idea of the ingredients, qualities, or characteristics of the goods). Moreover, Applicant argues, there is no “NETWORK” such as components or circuitry, associated with its goods; rather, its goods collect data emitted by existing IoT devices that are already in the area, and are not part of Applicant’s goods.7 (Applicant states, however, that it is willing to disclaim “NETWORK” upon reversal of the Examining Attorney’s refusal.)8 In addition, Applicant maintains, “SENSING” does not describe its product, as it does not have a sensor; rather, it detects disruptions in the flow of energy waves emitted by the preexisting IoT devices in the area.9 4 Applicant’s brief, 6 TTABVUE 14-15. 5 June 6, 2020 Response to Office Action at 5. 6 Id. at 10. 7 Applicant’s Dec. 6, 2019 Response to Office Action at 9. 8 Applicant’s brief, 6 TTABVUE 16. 9 Applicant’s brief, 6 TTABVUE 11, 13. Serial No. 88354318 - 4 - Applicant concludes that its proposed mark, taken as a whole, is greater than its parts.10 It is suggestive of Applicant’s product, not descriptive. B. Applicable Law Section 2(e)(1) provides that a mark is unregistrable on the Principal Register if, “when used on or in connection with the goods of the applicant [it] is merely descriptive or deceptively misdescriptive of them ....” 15 U.S.C. § 1052(e)(1). A term is merely descriptive of goods or services within the meaning of Section 2(e)(1) if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Well Living Lab Inc., 122 USPQ2d 1777, 1779 (TTAB 2017). In particular, we note, a term is merely descriptive if it conveys information regarding a function or purpose of the goods. DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012). Contrary to Applicant’s contention, “[t]he question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods and services are will understand the mark to convey information about them.” Earnhardt v. Earnhardt, Inc., 864 F.3d 1374, 123 USPQ2d 1411, 1413 (Fed. Cir. 2017) (citing DuoProSS, 103 10 Applicant’s brief, 6 TTABVUE 16. Serial No. 88354318 - 5 - USPQ2d at 1757). “Whether a mark 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 the mark is used, and the possible significance the term would have to the average consumer because of the manner of its use or intended use.” In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1102 (TTAB 2018) (citing In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219). Whether a term is merely descriptive is determined from the viewpoint of the relevant purchasing public—in this case, property owners or managers seeking to monitor the presence of people within the space. See In re Stereotaxis, Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1090 (Fed. Cir. 2005) quoted in In re Omniome, Inc., 2020 USPQ2d 3222, *5 (TTAB 2019). Viewing the matter from this perspective, we consider the commercial impression that the term, taken as a whole, would have on its purchasing public: In considering the mark as a whole, the TTAB “may not ‘dissect’ the mark into isolated elements,” without ever “consider[ing] . . . the entire mark,” DuoProSS, 695 F.3d at 1252, 1253, but it “may weigh the individual components of the mark to determine the overall impression or the descriptiveness of the mark and its various components,” In re Oppedahl & Larson LLP, 373 F.3d 1171, 1174 (Fed. Cir. 2004) (citation omitted). Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018). Evidence of the purchasing public’s understanding of the term may be obtained from any competent source, including websites, publications, and labels, packages, or in advertising material directed to the goods. In re North Carolina Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709-10 (Fed. Cir. 2017). This includes in particular the Serial No. 88354318 - 6 - applicant’s website, on which it describes and promotes its goods. In re Hikari Sales USA, Inc., 2019 USPQ2d 111514, *9 (TTAB 2019). C. Application to This Case Applying these principles to the evidence in the present case, we agree with the Examining Attorney that NETWORK PRESENCE SENSING merely describes the function or purpose of Applicant’s goods.11 As Applicant’s website explains: 12 In other words, Applicant’s product uses the network of wavelengths emitted by wireless devices in a room to sense human presence in that area. Its website continues: 13 It monitors a spider web-like network: 11 June 6, 2019 Office Action at 2, Jan 6, 2020 Office Action at 4. 12 Ivani.com, June 24, 2020 Office Action at 10. 13 Ivani.com, June 24, 2020 Office Action at 5. Serial No. 88354318 - 7 - 14 As Applicant’s own website indicates, its device taps into and uses this “NETWORK” of waves of energy. As the Examining Attorney correctly notes, quoting a technical dictionary: 15 Using this existing network, Applicant’s product detects the “PRESENCE” of humans in an area. Its website touts this purpose, and its identification of goods describes that function: “to detect human presence within an area.” “To detect 14 Ivani.com, Jan. 6, 2020 Office Action at 31. 15 TechTerms.com, Jan. 6, 2020 Office Action at 11. Serial No. 88354318 - 8 - automatically” is the very definition of “SENSING.”16 Even if Applicant does not use traditional sensors, such as photoelectric cells, its product still detects, and therefore senses, human presence. Thus, even if the constituent words of Applicant’s proposed mark, NETWORK PRESENCE SENSING, might have broader applications, taken separately, their commercial impression, taken together, immediately describes the purpose or function of Applicant’s product. See DuoProSS, 103 USPQ2d at 1757 (“The Board, however, ultimately must consider the mark as a whole and do so in the context of the goods or services at issue.”). Unlike Hutchinson Technology, prospective purchasers of Applicant’s goods would immediately understand the descriptive significance of the proposed mark in relation to those goods. See In re Omniome, 2020 USPQ2d 3222, at *10. II. Conclusion For the foregoing reasons, we find that Applicant’s proposed mark, NETWORK PRESENCE SENSING, is merely descriptive of its goods under Section 2(e)(1). Decision: The refusal to register Applicant’s proposed mark, NETWORK PRESENCE SENSING, is affirmed. 16 “Sensing” – “To detect automatically.” The American Heritage Dictionary of the English Language, AHDictionary.com, June 6, 2019 Office Action at 2, 8.