TXI Operations, LP

Trademark Trial and Appeal Board

Aug 13, 1999

No. 75151118 (T.T.A.B. Aug. 13, 1999)

Paper No. 15
ejs
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB AUG. 13,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re TXI Operations, LP
________
Serial No. 75/151,118
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William D. Jackson of Locke Purnell Rain Harrell for TXI
Operations, LP
Caroline E. Wood, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney)
_______
Before Cissel, Seeherman and Hohein, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
TXI Operations, LP has appealed from the final refusal
of the Trademark Examining Attorney to register PRESSURE
SEAL as a trademark for "well fluid additive granular
materials, namely, expanded clay and shale aggregates as
additives for well drilling, lost circulation, workover and
Ser. No. 75/151,118
2
completion fluids."1 Registration has been refused pursuant
to Section 2(e)(1) of the Trademark Act, 15 U.S.C.
1052(e)(1), on the ground that applicant’s mark is merely
descriptive of its goods.
Applicant and the Examining Attorney filed briefs on
the case, and applicant filed a reply brief.2
A mark is merely descriptive, within the meaning of
Section 2(e)(1), if, as applied to the goods or services in
question, it describes an ingredient, quality,
characteristic, function, feature, composition, purpose,
attribute, use, etc. of such goods or services. In re
Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986).
Obviously, the determination of whether PRESSURE SEAL
is merely descriptive of the identified well fluid additive
granular materials depends on a consideration of the goods.
However, because the goods in question are technical items
which are used, inter alia, in oil well production, we must
first understand what the goods are and what they do.
Applicant has explained that its goods are well fluid
additives which are "in the form of granular materials

1 Application Serial No. 75/151,118, filed August 16, 1996,
based on an asserted bona fide intention to use the mark in
commerce.
2 Applicant’s motion that the Board accept its late-filed reply
brief is granted, applicant having explained that its brief was
filed three days late due to a docketing error.
Ser. No. 75/151,118
3
which function in the nature of bridging agents or plugging
agents in drilling and workover operations and the like."
(Response filed August 25, 1997.) Specifically, they are
indicated to be clay and shale aggregate additives for
fluids which are injected into wells to prevent the fluids
from migrating into the strata as the wells are being
worked over or completed. (Reply brief, p. 2.) These
granular materials act as a bridging agent to combat lost
circulation and the like. (Response filed May 4, 1998.)
Applicant has further explained that a bridging agent
prevents the loss of fluid into high-pressure subterranean
formations. However, applicant asserts that when the
drilling or workover operation is completed and the well is
placed on production, the bridging agent does not function
to provide a seal against the flow of fluid from the high
pressure formation into the well. Applicant further states
that "it is a necessity for such lost circulation materials
that they not form a seal against fluid flow under these
circumstances of use," although applicant admits that "they
may function to prevent the loss of fluid from the well
into the formation during the drilling or workover
operation." (Id.)
The Examining Attorney’s understanding is that
applicant’s goods are used to create a seal to prevent the
Ser. No. 75/151,118
4
seepage of well fluids into rock surrounding a well, and
that the goods include bridging agents that function under
pressure to seal porous rock to prevent leakage and to
maintain pressure in a drilling hole.
It is clear from applicant’s own explanation of its
product that it acts as a pressure seal. Specifically,
during the drilling of a well the granular materials
prevent the loss of fluid into subterranean formations,
i.e., they act as a seal. Moreover, it is because of the
action of the subterranean pressures on the granular
materials that they form this seal, i.e., the pressure
causes the granular materials to form a seal within the
well, or in other words, the material acts as a pressure
seal.
We have no doubt that the purchasers of this product,
who are obviously sophisticated and knowledgeable about
such goods, would immediately, upon seeing the mark
PRESSURE SEAL used in association with applicant’s goods,
understand that PRESSURE SEAL describes the fact that the
granular materials form a pressure seal.
Applicant states that once the well is actually in
use, the material does not provide a seal. This fact is
irrelevant to our determination of registrability under
Section 2(e)(1) of the Trademark Act. Applicant’s goods
Ser. No. 75/151,118
5
are used in connection with "well drilling, lost
circulation, workover and completion fluids," i.e., in
processes in connection with the drilling of a well, not
for when a well is in use. During the drilling period, the
goods identified in applicant’s application are used to
form a pressure seal. The term sought to be registered
immediately conveys this fact.
Applicant has pointed out that the descriptiveness of
a mark must be determined in its entirety, and not by its
individual components. Thus, applicant argues that
although the individual words "pressure" and "seal" "may
have some descriptive characteristics" (brief, p. 5), the
Examining Attorney has not made of record a dictionary
definition for the composite term PRESSURE SEAL. However,
as applicant itself admits, the fact that a composite term
is not defined in the dictionary is not controlling on the
question of registrability. In this case, the combination
of the two words "pressure" and "seal" does not result in a
new, arbitrary expression. On the contrary, the resulting
combination "pressure seal" clearly refers to a seal
created by pressure, and the relevant consumers would
certainly understand this to be the meaning, since the term
"pressure seal" is used within the industry. See, for
example, "ASAP," Oct. 5, 1990 ("Filtration leaves a
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6
residue, known as ’mudcake,’ on the borehole wall which
eventually forms a pressure seal."); "Oil & Gas Journal,"
Dec. 3, 1984 ("This pack-off assembly provides the required
pressure seal between the inside and outside of the
drillpipe, while still allowing the logging cable to move
freely."); and "Oil & Gas Journal," Oct. 12, 1981 ("The
wellhead assembly provides the pressure seal between the
tubing string and all outer casing.")
Although these excerpts are not references to the
specific goods identified in applicant’s application, it is
clear that the relevant class of consumers for applicant’s
goods recognize the meaning of the term "pressure seal"
and, upon seeing the designation PRESSURE SEAL used in
connection with applicant’s identified goods, would
immediately understand that applicant’s goods are used to
form a seal as a result of pressure, i.e., that they make a
pressure seal.
Accordingly, because PRESSURE SEAL would immediately
and directly convey information about this significant
characteristic of applicant’s identified goods, we find it
to be merely descriptive of them.
Ser. No. 75/151,118
7
Decision: The refusal of registration is affirmed.
R. F. Cissel
E. J. Seeherman
G. D. Hohein
Administrative Trademark Judges
Trademark Trial and Appeal Board