WyldFyre Tech-nologies, Inc.

Trademark Trial and Appeal Board

May 29, 2001

No. 75659987 (T.T.A.B. May. 29, 2001)

5/29/01
Paper No. 11
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re WyldFyre Technologies, Inc.
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Serial No. 75/659,987
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Jason E. Lavender of Foley & Lardner for WyldFyre
Technologies, Inc.
Kevon L. Chisolm, Trademark Examining Attorney, Law Office
103 (Dan Vavonese, Acting Managing Attorney).
_______
Before Hairston, Walters and Drost, Administrative
Trademark Judges.
Opinion by Drost, Administrative Trademark Judge:
On March 15, 1999, WyldFyre Technologies, Inc.
(applicant) filed a trademark application to register the
mark REALTYLINK (typed drawing) for goods and services
identified as:
“Computer software used to obtain real estate products
and services electronically in connection with
managing the real estate closing process” in
International Class 9, and
“real estate services, namely services to facilitate
and monitor the real estate closing process and the
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/659,987
2
ordering and delivery of real estate products and
services for others” in International Class 36.1
The Examining Attorney refused to register the mark on
the ground that the mark, when applied to the goods and
services, is merely descriptive. 15 U.S.C. § 1052(e)(1).
After the Examining Attorney made the refusal final,
applicant filed a notice of appeal. Both applicant and the
Examining Attorney have filed briefs, but applicant did not
request an oral hearing.
We affirm the Examining Attorney’s refusal to
register.
The Examining Attorney’s position is that the mark
“is merely descriptive of applicant’s goods and services
because it identifies a feature, function and purpose of
the goods and services; they are used for connecting to the
global computer network to obtain real estate products and
services.” Brief, p. 3. The Examining Attorney relies on
dictionary definitions that define “realty” as “real
estate” and “link” in data management as “a pointer
embedded within a record that refers to data or the
1 Serial No. 75/659,987. Applicant originally claimed a date of
first use and first use in commerce of April 3, 1993. However,
on March 14, 2000, applicant amended the application to request
registration under Section 1(b) of the Trademark Act alleging a
bona fide intent to use the mark in commerce. See “Trademark Law
Treaty Implementation Act Changes,” 64 FR 48899 (September 8,
1999); Exam Guide No. 3-99 (October 30, 1999), § III.C.5.
Ser No. 75/659,987
3
location of data in another record.” In addition, the
Examining Attorney submitted evidence from LEXIS/NEXIS
articles showing numerous uses of the term “real estate
links”; from third-party registrations in which the terms
“realty” and “link” have been disclaimed; and from
applicant’s website showing how applicant describes its
goods and services. The Examining Attorney, therefore,
concluded that the term REALTYLINK was merely descriptive
for applicant’s goods and services.
In response to this refusal, applicant argues that its
mark “fails to convey an immediate idea of the qualities or
characteristics of the goods and services provided by
Applicant and at the same time requires imagination,
thought and perception to identify the nature of the goods
and services conveyed by the Applicant’s Mark.” Brief, p.
3. While applicant admits that “consumers can reasonably
conclude that the Applicant is involved in real estate” and
that it is “involved in assisting buyers in finding a home
and assisting homeowners in listing their homes for sale,”
they “would fail to capture the true essence and purpose of
Applicant’s business.” Brief, pp. 4-5. Furthermore, the
main purpose of its services, applicant asserts, is not the
ordering of real estate services, but rather the management
of the entire real estate transaction process. Therefore,
Ser No. 75/659,987
4
applicant contends that its mark does not immediately
convey the nature of the goods and services, and it is not
merely descriptive.
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics 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). A term may be held descriptive
even if it only describes one of the qualities or
properties of the goods or services. In re Gyulay, 820
F.2d 1216, 1217, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987). 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, 588 F.2d at 814, 200 USPQ at 218.
The Examining Attorney’s evidence demonstrates that
the term REALTYLINK is descriptive of a significant feature
of applicant’s goods and services. “Realty” is another
term for real estate.2 Applicant admits that consumers can
reasonably conclude that applicant is involved in real
estate. Applicant’s Appeal Brief, p. 4. A “link” in
computer science is “an identifying term attached to an
2 The American Heritage Dictionary of the English Language, Third
Edition (1992).
Ser No. 75/659,987
5
element in a system to facilitate connection to other
identified elements.”3 Applicant admits that the term
“establishes a connection between the real estate industry
and an inter-data reference point.” Applicant’s Appeal
Brief, p. 4. Applicant further admits that its REALTYLINK
goods and services can be used to order real estate
services (e.g., termite inspections) and goods (e.g., title
and loan documents). In effect, applicant is linking
professionals in the real estate industry to other
professionals in the real estate industry who provide
related goods and services. Applicant’s literature is even
more specific:
With direct access to affiliates, you can order the
following products and services: Property Profiles,
Title & Escrow Documents, Buyer Pre-Qualification,
Loan Documents, Property Valuations and Appraisals,
Flood reports, Home Warranty Insurance, Homeowner’s
Insurance, Property Inspections [and] Property
Repairs.
Clearly, applicant prominently promotes how its
software links the real estate professional to providers of
related real estate goods or services and its services
utilize these links established by the software.
Furthermore, the Examining Attorney established that
the highly similar term “real estate link” is widely used
in the real estate industry.
3 Id.
Ser No. 75/659,987
6
Mr. Browning said CB plans to transform its web site
by January into a web portal, which will provide
access to a variety of real estate links and
information that users can organize as they wish.
Crain’s Cleveland Business, November 15, 1999, p. M-2.
Among the thousands of real estate links provided at
Virtualrelocation.com are state tax departments.
Kiplinger’s Personal Finance Magazine, April 1999, p.
56.
Web Site Offers One-Stop Realty Shopping:
We altered our approach to the top sites to feature
geographic areas rather than a single list of the ‘10’
best Web sites. With so many sites and such rapid
growth and change, we no longer try to list every real
estate link, only those which provide enough useful
content. Pittsburgh Post-Gazette, August 30, 1998, p.
H-9.
HOUSING Check out Third Age’s real-estate links
(www.thirdage.com/realestate). Business Week, July
20, 1998, p. 94.
ULI is a nationwide organization of developers that
provides highly respected educational conferences, and
now conveys information through over 1,000 real estate
links that have been tagged with search words. Real
Estate Weekly, June 24, 1998, p. 1.
A better route, however, is to begin your search
directly with a catalog of real estate links, the best
of which is the International Real Estate Directory.
Chicago Tribune, January 30, 1997, p. C7.
You might want to advertise your site’s address, or
URL (Uniform Resource Locator) with any number of real
estate link directories. Journal of Property
Management, May 1996, p. 40.
Area Realtors find a home on the Net:
Http://www.pwcweb.com/comm/realest/radke/ - Dan Radke,
RE/MAX Olympic Realty – commercial and residential
real estate link to Manassas and Prince William
County. Washington Times, April 12, 1996, p. F1.
Ser No. 75/659,987
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Check the real estate links if you’re ready to sell.
Sunset, July 1, 1999, p. 129.
A review of all of the Examining Attorney’s evidence
clearly shows that the terms “realty,” “real estate,” and
“link” are individually descriptive of applicant’s goods
and services. However, we must determine if the mark in
its entirety is descriptive of the goods or services
because when combined, the terms may not be merely
descriptive. In this case, the evidence demonstrates that
when the words are combined, they remain descriptive. The
widespread use of the term “real estate links” supports the
conclusion that when prospective purchasers encounter the
term “REALTYLINK,” which has the identical meaning as “real
estate link,” they would likewise believe that it is
descriptive of applicant’s goods and services.
While applicant argues that it would require
“imagination, thought and perception to reach a conclusion
as to the nature of the services” (Applicant’s Appeal
Brief, p. 3), the test of whether a mark is descriptive is
not conducted in the abstract. We must consider
descriptiveness in relation to the particular goods or
services for which registration is sought. Abcor, 588 F.2d
at 814, 200 USPQ at 218. Therefore, the question is
whether the term REALTYLINK is descriptive for computer
Ser No. 75/659,987
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software used to obtain real estate products and services
electronically in connection with managing the real estate
closing process and real estate services, namely services
to facilitate and monitor the real estate closing process
and the ordering and delivery of real estate products and
services for others. Courts have long held that to be
“merely descriptive,” a term need only describe a single
significant quality or property of the goods. Meehanite
Metal Corp. v. International Nickel Co., 262 F.2d 806, 807,
120 USPQ 293, 294 (CCPA 1959); Gyulay, 820 F.2d at 1217, 3
USPQ2d at 1009. While applicant argues that ordering real
estate services and products is not the main purpose of
applicant’s software and services, it is clear that it is a
significant feature of them. Indeed, applicant’s
identification of goods and services highlights the
importance of this feature (“software used to obtain real
estate products and services electronically” and services
to facilitate “the ordering and delivery of real estate
products and services”). Furthermore, applicant’s
literature identifies six features or functions of its
software: “Open and Monitor Transactions,” “Order Products
and Services,” “Order and Receive Documents,” “Schedule
Tasks and Meetings,” “View and Update Project Calendars,”
and “Send and Receive Intelligent E-Mail.” Applicant’s
Ser No. 75/659,987
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prominent discussion of the “Order Products and Services”
and “Order and Receive Documents” features of its software
demonstrates that the real estate or realty links of its
goods and services are a significant feature. As such, the
words, REALTY and LINK, are merely descriptive of
applicant’s services. The fact that applicant joins the
words without a space does not change the commercial
impression and does not change the descriptiveness of the
terms. See Abcor, 200 USPQ at 218. Therefore, we conclude
that when the terms are combined, they create a mark that
is merely descriptive of the goods and services set forth
in the application.
Decision: The Examining Attorney’s refusal to
register the mark REALTYLINK on the ground that it is
merely descriptive of the involved goods and services is
affirmed.