RF Monolithics, Inc.

Trademark Trial and Appeal Board

Jul 19, 2007

No. 78526998 (T.T.A.B. Jul. 19, 2007)

Mailed: July 19, 2007
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re RF Monolithics, Inc.
________

Serial No. 78526998
_______

William A. Munck and Cami Dawson Boyd of Munck Butrus P.C. for RF
Monolithics, Inc.

Rebeccah Gan, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
_______

Before Hohein, Holtzman and Drost, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

RF Monolithics, Inc. has filed an application to
register on the Principal Register in standard character form the
term "RFMESH" for "communication equipment, namely, hardware,
software and firmware for use in creating, using and maintaining
mesh networks, including stand-alone nodes, radio frequency
modules, and related components for reading, sharing, processing
and controlling information among such stand-alone nodes, radio
frequency modules, and related components" in International Class
9.1

1 Ser. No. 78526998, filed on December 3, 2004, which is based on an
allegation of a bona fide intention to use such term in commerce.

THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser. No. 78526998
2
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the
ground that, when used in connection with applicant's goods, the
term "RFMESH" is merely descriptive thereof.
Applicant has appealed and briefs have been filed.2 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 forthwith conveys
information concerning any significant ingredient, quality,
characteristic, feature, function, purpose, subject matter or use
of the goods or services. See, e.g., In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987); and In re Abcor

2 Applicant, in its main brief, "refers to the evidence in the record
at the USPTO and before the Board, including, but not limited to the
attached Exhibit 'A' consisting of true and correct copies of
Wikipedia definitions (or more importantly the lack thereof) for the
terms 'rfmesh,' 'rf mesh,' 'rf' and 'mesh.'" The Examining Attorney,
in her brief, states that she "formally objects to Applicant's new
alleged evidence," correctly noting that ordinarily, as provided by
Trademark Rule 2.142(d), "evidence must be made of record prior to
appeal" (italics and underlining in original). Applicant, in its
reply brief, contends that "the Examining Attorney is incorrect in his
[sic] assertion that Appellant has somehow submitted 'new' evidence in
connection with Appellant's Appeal Brief," arguing that, instead,
"[t]he evidence submitted with Appellant's Appeal Brief consists of
enhanced duplicates of evidence submitted to the USPTO ... prior to
the filing of the appeal and in connection with its ... Request for
Reconsideration" of the final refusal (underlining and emphasis in
original; footnote omitted). In particular, applicant maintains that
while "[t]here are minor variations in the 'print parameter' of the
evidence attached to Appellant's [Request for Reconsideration] ... and
that attached to the Appeal Brief," applicant "did not submit new
evidence and rely on any minor differences in the form of the
attachments." In view thereof, and inasmuch as the Wikipedia evidence
submitted with applicant's request for reconsideration plainly is
properly of record and applicant is not relying on any "minor
differences" therein as reflected in the attachments accompanying its
main brief, the Examining Attorney's objection is sustained to the
extent that we have considered only the Wikipedia evidence submitted
by applicant with its request for reconsideration.

Ser. No. 78526998
3
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 or is intended to be used on or in connection
with those goods or services and the possible significance that
the term would have to the average purchaser of the goods or
services because of the manner of such use. See In re Bright-
Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). Thus, "[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, in its main brief, asserts that at most the
term "RFMESH" is suggestive rather than merely descriptive of its
goods, arguing that (underlining in original):3
The terms "RF," "MESH" and "RFMESH,"
individually or in any combination, wholly
fail to describe the goods associated with

3 Although applicant, citing In re Pennzoil Products Co., 20 USPQ2d
1753, 1758 (TTAB 1991), repeatedly maintains that "the Examining
Attorney has not met the burden of showing by clear evidence that
Appellant's mark is primarily merely descriptive," it is pointed out
that "clear evidence" is the standard for showing that a term is
generic rather than just merely descriptive. See, e.g., In re Merrill
Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141,
1143 (Fed. Cir. 1987). Where, as here, the refusal of registration is
grounded on mere descriptiveness, the Examining Attorney need only
demonstrate a prima facie case thereof by a preponderance of the
evidence. See, e.g., In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010
(Fed. Cir. 1987).

Ser. No. 78526998
4
the Proposed Mark. In fact, the terms fail
to describe any type of communication
equipment, any type of hardware, software
and/or firmware for use in creating, using
and maintaining mesh networks. When taken as
a whole, the Proposed Mark is not merely
descriptive of the Appellant's goods.
Instead, Appellant's mark requires
imagination, cognition or gathering of
further information in order for the relevant
target market to perceive ANY significance of
the term as it relates to the Appellant's
goods.

Accordingly, and because "[a]ppellant's mark fails to invoke an
immediate idea or connection with the associated goods with any
degree of particularity" (italics in original), applicant insists
that the term "RFMESH" is not merely descriptive. Applicant also
contends that such term is "more than just a sum of its parts"
(underlining in original), arguing that even if the constituent
terms "RF" and "MESH" are regarded as merely descriptive, the
combination thereof "evokes [a] new and unique commercial
impression" and thus is suggestive of its goods. Moreover, while
likewise acknowledging that, "at first blush, one may conclude
that the mark RFMESH is somehow related to a 'mesh' of radio
frequency (RF) components or devices," applicant nonetheless
urges that "the mark RFMESH is to be used in connection with all
kinds of communication equipment for use in creating, using and
maintaining mesh networks including stand-alone nodes (i.e., non-
RF components)" (underlining in original). Applicant
consequently reiterates its contention that, "[a]t best,
Appellant's mark [is suggestive because it] requires imagination,
cognition or gathering of further information in order for the
Ser. No. 78526998
5
relevant target market to perceive ANY significance of the term
as it relates to the Appellant's goods."
In support of its arguments, applicant submitted and
made of record with its request for reconsideration of the final
refusal excerpts from "Wikipedia, the free encyclopedia" with
respect its searches of the terms "RF," "Mesh" and "rfmesh."
While the search of the latter term retrieved "[n]o results
found" and the search of the term "Mesh," among other things,
indicated that "[a] mesh is similar to fabric or a web in that it
has many connected or weaved pieces," the search of the term "RF"
yielded 15 meanings for which such term "may stand for" or "may
be," including: "Volumetric flow rate/"rate of flow (RF)";
"Rheumatoid factor, a blood test used to diagnose rheumatoid
arthritis"; "Right fielder, a defensive position in baseball";
and "IATA code for Florida West International Airways." We note,
however, that in relevant part, that is, when viewed in the
context of "communication equipment," the pertinent meanings that
"Rf or RF may stand for" are listed as: "Radio frequency, a term
in broadcasting" and "RF connectors, electrical connectors
designed to word at radio frequencies."
The Examining Attorney, in her brief, argues that "the
evidence in this case amply demonstrates that the term 'RFMESH'
references a [mesh] network technology using radio frequency"
communication equipment and, therefore, is merely descriptive of
applicant's goods. Specifically, she asserts that (footnotes
omitted; brackets in original):
In her first Office Action, Examining
Attorney attached evidence that the term "RF"
Ser. No. 78526998
6
is an acronym for "radio frequency." ....
Examining Attorney also attached evidence
that "mesh" references a topology or network
wherein "devices are connected with
[redundant] interconnections between network
nodes." .... Finally, Examining Attorney
provided evidence that demonstrates that the
term "RF Mesh" is used in the technology
field to reference a type of networking
architecture encompassing mesh networks and
RF-based communication media. Specifically,
an RF mesh network is a network comprised of
different nodes that communicate with each
other via radio frequency instead of, e.g.,
cable lines.

In light of such evidence, the Examining Attorney concludes that
"'RFMESH' or 'RF mesh' immediately describes Applicant's
communication equipment ... because ... Applicant's equipment
facilitates communication across, e.g., an RF-based mesh network
architecture," insisting that:
Nothing in Applicant's juxtaposition of
"RF mesh" is unique or non-descriptive as to
Applicant's hardware, software, and firmware
for use in maintaining mesh networks
incorporating RF-base communication media.
Indeed, allowing registration of the proposed
mark would enable Applicant to strip the
terminology "RF mesh" from the public domain
as it applies to hardware, software, and
firmware for use in maintaining RF-based mesh
networks, fettering Applicant's competitors
from accurately describing their products and
services.

In addition, she maintains that "[t]he fact that Applicant's
hardware, software, and firmware may also be used in connection
with mesh networks that do not incorporate RF-based media is
irrelevant."
As to the evidence relied upon by the Examining
Attorney, the record reveals that an excerpt from "Webopedia,"
which touts itself as "[t]he #1 online encyclopedia dedicated to
Ser. No. 78526998
7
computer technology," sets forth the following discussion with
respect to the term "RF" (italics in original):
Short for radio frequency, any frequency
within the electromagnetic spectrum
associated with radio wave propagation. When
an RF current is supplied to an antenna, an
electromagnetic field is created that then is
able to propagate through space. Many
wireless technologies are based on RF field
propagation.

....

Radio frequency is also abbreviated as
rf or r.f..

Another excerpt of record from the same online encyclopedia
contains the following discussion of the term "mesh" (italics in
original):
Also called mesh topology or a mesh
network, mesh is a network topology in which
devices are connected with many redundant
interconnections between network nodes. In a
true mesh topology every node has a
connection to every other node in the
network.

There are two types of mesh topologies:
full mesh and partial mesh.

Full mesh topology occurs when every
node has a circuit connecting it to every
other node in a network. Full mesh is very
expensive to implement but yields the
greatest amount of redundancy, so in the
event that one of those nodes fails, network
traffic can be directed to any of the other
nodes. Full mesh is usually reserved for
backbone networks.

Partial mesh topology is less expensive
to implement and yields less redundancy than
full mesh topology. With partial mesh, some
Ser. No. 78526998
8
nodes are organized in a full mesh scheme but
others are only connected to one or two in
the network. Partial mesh topology is
commonly found in peripheral networks
connected to a full meshed backbone.

Also of record and relied upon by the Examining
Attorney are the following three website excerpts, which state in
relevant part as follows (emphasis added; italics in original):
"INNCOM Expands Wireless Communication
Offering to Include Reliable RF Mesh Net
Technology

As mesh net architecture has minimized
interference issues with Radio Frequency
technology and made it more dependable and
suitable for guestroom energy management and
backbone communications systems

... INNCOM International Inc. has
expanded its industry-leading line-up of
wireless communication solutions by adding
Radio Frequency systems based on a cutting-
edge mesh net routing architecture that
minimizes traditional RF signal interference
issues and makes the technology suitable for
many guestroom applications and backbone
communication needs.

'INNCOM has been ... integrating the
latest, most stable and reliable RF mesh net
wireless communication technology ...,' said
Rick Quirino, Chief Operating Officer. 'With
the advent of mesh net architecture, RF is a
feasible option for both guestrooms and
communication backbones. Realizing the
advantages of RF mesh net, we have embraced
this technology as a viable wireless
communications option.'

Signal integrity

RF technology has been around for years,
but it's fought an uphill battle as a
successful communications option in
guestrooms because of inherent signal
interference issues--that is, until RF mesh
net technology came into the picture
recently, Quirino said.

Ser. No. 78526998
9
....

'The bottom line is that INNCOM offers
hotels all the guestroom communications
vehicles possible to meet their application
and architecture needs--whether its wired,
infrared or RF mesh net,' Quirino said." --
www.inncom.com/cfm/press.cfm/pr/64 as of July
19, 2005;

"ACCESS/ONE® NETWORK OWS IS A COHERENT
MULTI-RADIO, MULTI-CHANNEL, AND MULTI-RF
WIRELESS MESH NETWORK SYSTEM THAT BRINGS
EXTENDED RANGE, COMPREHENSIVE MANAGEMENT AND
ENHANCED SECURITY TO LARGE SCALE METROPOLITAN
AND REGIONAL NETWORKS.

Access/One Network OWS enables the
deployment of 802.11 networks across large
urban areas, rural counties and entire
regions--ideal for government agencies,
public utility and transportation providers,
and mobile users who want uninterrupted
service on a citywide basis. Unlike
traditional access points that offer limited
coverage within predefined hot spots, or
single radio/single RF mesh solutions that
won't scale, Access/One Network OWS
provisions wireless hot zones that can extend
over hundreds of square miles. ....

....

Download our System Description Brochure
to learn more about how the Access/One
Network delivers the highest performance
multi-radio, multi-channel, and multi-RF
wireless mesh networking system for outdoor
deployments." -- www.strixsystems.com/-
products/ows.asp as of July 19, 2005; and

"Mesh Network Technology

....

The SensiNet Networking Protocol is the
most robust mesh networking solution
available. Based on practical field testing,
SensiNet provides an RF mesh networking
solution that leverages frequency diversity
to ensure reliable point-to-point
connections." -- www.bb-elec.com/wireless_-
Ser. No. 78526998
10
mesh_metwork_technology.asp as of July 190,
2005.

Upon consideration of the evidence and arguments
presented, we agree with the Examining Attorney that, when
considered in its entirety, the term "RFMESH" is merely
descriptive of applicant's "communication equipment, namely,
hardware, software and firmware for use in creating, using and
maintaining mesh networks, including stand-alone nodes, radio
frequency modules, and related components for reading, sharing,
processing and controlling information among such stand-alone
nodes, radio frequency modules, and related components." The
pertinent excerpts noted above plainly demonstrate that the terms
"RF" and "MESH" respectively signify, in the context of
applicant's goods, "radio frequency" and "mesh network" and that
such terms individually are merely descriptive of characteristics
or aspects of applicant's radio frequency mesh network
communication equipment. When those terms are combined, no new
and unique commercial impression is created. Instead, the
resulting term "RFMESH" immediately and particularly conveys,
without the need for speculation or conjecture, that a
significant characteristic or aspect of applicant's communication
equipment, namely, its "hardware, software and firmware," is that
the equipment is for use in creating, using and maintaining a
radio frequency mesh network, including stand-alone nodes, radio
frequency modules, and related components for reading, sharing,
processing and controlling information among such stand-alone
nodes, radio frequency modules, and related components. To
purchasers, designers and users of radio frequency mesh networks,
Ser. No. 78526998
11
there is nothing in the term "RFMESH" which is or would be
incongruous, ambiguous or even suggestive, nor is there anything
which would require the exercise of imagination, cogitation or
mental processing, or necessitate the gathering of further
information, in order for the merely descriptive significance
thereof to be readily apparent to such persons. Rather, the term
"RFMESH" conveys forthwith that a significant aspect or
characteristic of applicant's goods is that its communication
equipment, namely, hardware, software and firmware for use in
creating, using and maintaining mesh networks, including stand-
alone nodes, radio frequency modules, and related components for
reading, sharing, processing and controlling information among
such stand-alone nodes, radio frequency modules, and related
components, is RF mesh-based.
Moreover, while the record appears to show that no one
else in the communications equipment field is using the
telescoped form of the terminology "RF MESH" and that applicant
intends to be the first in such field to use the telescoped term
"RFMESH" in connection with its goods, it is well settled that
such does not entitle applicant to the registration thereof
where, as here, the term "RFMESH" has been shown to immediately
convey only a merely descriptive significance in the context of
applicant's communication equipment. See, e.g., In re National
Shooting Sports Foundation, Inc., 219 USPQ 1018, 1020 (TTAB
1983); and In re Mark A. Gould, M.D., 173 USPQ 243, 245 (TTAB
1972). Finally, as to applicant's argument that it intends to
use the term "RFMESH" in connection with a variety of
Ser. No. 78526998
12
communication equipment for use in creating, using and
maintaining mesh networks, including "non-RF components," suffice
it to say that it is well established that registration must be
denied if a term is merely descriptive of any of the goods for
which registration is sought. See, e.g., In re Quik-Print Copy
Shop, Inc., 616 F.2d 523, 205 USPQ 505, 507 (CCPA 1980).
Decision: The refusal under Section 2(e)(1) is
affirmed.