Tablus, Inc.

Trademark Trial and Appeal Board

Sep 29, 2005

No. 78279935 (T.T.A.B. Sep. 29, 2005)

Mailed:
29 September 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Tablus, Inc.
________

Serial No. 78279935
_______

John Alumit of Patel & Alumit, P.C. for Tablus, Inc.

John T. Lincoski, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______

Before Hairston, Walters, and Drost, Administrative
Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

On July 28, 2003, Tablus, Inc. (applicant) applied to
register the mark CONTENT ALARM, in standard character
form, on the Principal Register for “computer software that
uses linguistic analysis to monitor the transmission of
sensitive digital content and provides instant visibility
into sensitive information in outgoing network traffic” in
Class 9. The application (Serial No. 78279935) includes a
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser. No. 78279935
2
date of first use of the mark anywhere (May 15, 2003) and a
date of first use in commerce (July 24, 2003).
The examining attorney refused to register applicant’s
mark on the ground that the mark is merely descriptive
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1) when used on applicant’s goods. The examining
attorney’s position (Brief at 5) is that the term “content
alarm” is a term that describes goods that “serve to alert
the user that sensitive content is leaving the network.”
Final Office Action at 2. Applicant, on the other hand,
argues that “content” falls “short of describing
applicant’s services in any one degree of particularity”
and that there “is no electrical, electronic, or mechanical
device within the software that warns of danger by means of
a sound or signal.” Brief at unnumbered p. 3.
Our principal reviewing court in In re MBNA America
Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir.
2003) recently discussed the issue of when a mark is
merely descriptive.
A mark is merely descriptive if it immediately
conveys information concerning a quality or
characteristic of the product or service. [In re
Nett Designs, 236 F.3d 1297, 1341, 57 USPQ2d 1564
(Fed. Cir. 1999)]. The perception of the relevant
purchasing public sets the standard for determining
descriptiveness. Id. Thus, a mark is merely
descriptive if the ultimate consumers immediately
associate it with a quality or characteristic of the
Ser. No. 78279935
3
product or service. On the other hand, “if a mark
requires imagination, thought, and perception to
arrive at the qualities or characteristics of the
goods [or services], then the mark is suggestive.”
Id.

When we consider a mark, the test is not whether
prospective purchasers, presented with the words alone, can
guess what the goods or services are. Instead, we must
view the mark in the context of its use in association with
the goods or services. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 218 (CCPA 1978) (“Appellant’s
abstract test is deficient – not only in denying
consideration of evidence of the advertising materials
directed to its goods, but in failing to require
consideration of its mark ‘when applied to the goods’ as
required by statute”).
We begin our analysis by looking at the evidence of
record. We start by observing that applicant’s own
identification of goods indicates that its goods “monitor
the transmission of sensitive digital content.” The
examining attorney has submitted the following support for
his position that the term “content” is descriptive.
Applicant’s website literature claims that its Content
Alarm software “monitors all traffic leaving the network
perimeter and accurately identifies sensitive content
leaving the network in email and email attachments.” It
Ser. No. 78279935
4
identifies “sensitive content to protect. Content Alarm
provides a number of mechanisms to maintain content
classification as the protected content is modified or
updated.” The software “notifies a content auditor quickly
when violations occur.” The website goes on to ask: “What
is Content Security?… Content security is the proactive
protection of critical information.” Applicant argues
(brief at unnumbered p.2) that “content” “does not
sufficiently identify the applicant’s goods with any degree
of particularity, even though the identification of goods
states that the software manages digital content.” We
disagree. Any purchaser viewing the goods would conclude
that that the term “content” describes software that
monitors the content of email traffic or similar electronic
transmissions. Nothing is left to the imagination.
Next, we look at the term “alarm.” Applicant (brief
at unnumbered p. 3) cites a dictionary definition of the
term as an “electrical, electronic, or mechanical device
that serves to warn of danger by means of a sound or
signal.” Based on this definition, applicant points out
that there “is no electrical, electronic, or mechanical
device within the software that warns of danger by means of
a sound or signal.” Id. In response, the examining
attorney notes (Brief at 5) that “alarm” is also defined as
Ser. No. 78279935
5
“a warning of existing or approaching danger.”1 The
examining attorney then argues (Brief at 5) that “[b]y
definition, an ‘alarm’ need not comprise a buzzer, claxon
or other audible signal. All that the definition requires
is a warning of existing or approaching danger.” We agree
that applicant’s software does provide a “warning of
existing or approaching danger,” i.e., that sensitive data
or content is leaving the defined protected area of the
network.
Content Alarm notifies a content auditor quickly when
violations occur. The auditor is then able to see the
transmission in detail and determine if it truly
reflects a violation of content policies.

Speeds reaction to content policy violations.

Supports administrator’s preferred notification.

Another Content Alarm installed at the perimeter of
the provider’s network alerts the security officer
immediately if any proprietary data leaves the
partner’s network.

Applicant’s own information explains that its software
alerts appropriate company officials that content is
leaving the defined protected area. This is a warning of
an existing or approaching danger. Applicant argues (brief
at unnumbered p. 5) that its software is not “capable of

1 Both the examining attorney and applicant refer to The American
Heritage Dictionary of the English language. Applicant refers to
the fourth edition and the examining attorney to the third
edition.
Ser. No. 78279935
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alerting the security officer immediately if any
proprietary data is leaving the network, or before the data
leaves.” Even if that is true, an alarm does not have to
prevent unlawful entry. For example, burglar alarms often
do not prevent burglaries and bank alarms do not
necessarily prevent holdups but they do permit authorities
to take appropriate actions to apprehend intruders and
minimize losses. Similarly, applicant’s software permits
appropriate officials to act on the warning to minimize the
consequences of the loss of data and identify and take
action against individuals who were responsible for a
security breach.
Indeed, that is how the term is used in the
NetworkWorldFusion website (emphasis added) in describing
applicant’s product. “The company’s Content Alarm
appliances scan data as it moves across corporate networks
and can trigger alarms if unauthorized files and other
digital resources are being moved out of the network.” At
the Compliance Pipeline website an article about a
company’s experience with applicant’s software has a
paragraph entitled “Alarm In Action.” Another article
referring to Data Network Solutions security software
describes (emphasis added) its “Intrusion Detection”
feature as follows: “Intrusion detection works with your
Ser. No. 78279935
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firewall and network to act like a burglar alarm if
sensitive areas of your network are compromised, the
intrusion detection system can send an alert to technical
personnel and temporarily shut down the affected resources
until they can be secured.” Therefore, the term alarm,
considered in the context of applicant’s goods, describes
the “alert” or “alarm” function of its goods.
However, the final question is whether the term
“content alarm” considered in its entirety is merely
descriptive. When the terms “content” and “alarm” are
combined, the resulting term CONTENT ALARM describes
computer software that sends an alert or alarm when
sensitive content has left the protected area of the
network. The evidence shows that applicant’s software
identifies what content the network owner considers to be
sensitive information. The software monitors network
traffic to determine if the identified content leaves the
network. When it does leave the network, applicant’s
software sends an alert to the content administrator. As
applicant’s literature explains:
Content Alarm monitors all traffic at the network
perimeter and accurately identifies sensitive content
leaving the network in email or email attachments,
HTTP posts, FTP transmissions and other traffic. It
audits these transmissions according to explicitly
defined policies, supporting rapid action to close
Ser. No. 78279935
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security gaps and protect corporate and customer
interests…

Content Alarm notifies a content auditor quickly when
violations occur. The auditor is then able to see the
transmission in detail and determine if it truly
reflects a violation of content policy.

In effect, applicant’s software sets off an alarm when
protected content leaves the network. We agree that an
email or similar signal alerting the content auditor that
protected information is leaving the network would be
understood as an alarm. Certainly, a burglar alarm that
sends an email to a monitoring center advising the security
officer that an intrusion has occurred is just as much of a
burglar alarm as one that sounds a bell.
We also note that there is some Internet evidence
(emphasis added) that shows how prospective purchasers
would understand the term “Content Alarm.” See, e.g.,
Network Performance Services web page (“Please contact
Network Performance Services for additional monitors and to
learn about advanced web site monitoring options, such as
response time alarms and valid page content alarms”);
www.webmasterworld.com (“You can’t copy the content out and
into another domain either without triggering googles [sic]
duplicate content alarm”); www.rpg.net (“While I know
Tangency or even Open would trip my company’s web content
alarm, I generally don’t expect this in a review”).
Ser. No. 78279935
9
The record in this case convinces us that the term
CONTENT ALARM, used in association with software that
monitors the transmission of sensitive digital content and
alerts appropriate officials of possible violations of
sensitive content restrictions, is merely descriptive.
Decision: The refusal to register under Section
2(e)(1) of the Trademark Act is affirmed. In addition, we
note that applicant requests that “the Board permit
registration on the Supplemental Register” if the mark is
held to be merely descriptive. Applicant’s brief at
unnumbered p. 5. The examining attorney “believes that
amendment to the Supplemental Register is appropriate.”
Examining attorney’s brief at 8. Therefore, the
application is forwarded to the examining attorney for
appropriate action.