ZeroNines Technology, Inc.Download PDFTrademark Trial and Appeal BoardJun 22, 2010No. 77404271 (T.T.A.B. Jun. 22, 2010) Copy Citation Mailed: June 22, 2010 Bucher UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re ZeroNines Technology, Inc. ________ Serial No. 77404271 _______ Christopher M. Parent of Brownstein Hyatt Farber Schreck, LLP for ZeroNines Technology, Inc. Kathleen M. Vanston, Trademark Examining Attorney, Law Office 107 (J. Leslie Bishop, Managing Attorney). _______ Before Quinn, Bucher and Taylor, Administrative Trademark Judges. Opinion by Bucher, Administrative Trademark Judge: ZeroNines Technology, Inc. seeks registration on the Principal Register of the mark Always Available (in standard character format) for services recited in the application as “computer services, namely, creating indexes of information, sites and other resources available on computer networks” in International Class 42.1 1 Application Serial No. 77404271 was filed on February 22, 2008 based upon applicant’s allegation of a bona fide intention to use the mark in commerce. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77404271 - 2 - The Trademark Examining Attorney refused registration on the ground that the term is merely descriptive under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). After the Trademark Examining Attorney made the refusal final, applicant appealed to this Board. We affirm the refusal to register. In support of registrability, applicant argues that the term “Always Available” is not merely descriptive of the services recited in the application. Applicant claims that the Trademark Examining Attorney’s arguments and evidence are based alternatively on impermissibly broadened or unjustifiably narrowed interpretations of the recited services, while the Office’s arguments and evidence fail to focus on the particular services involved in this application. Applicant argues that the applied-for designation is, at worst, suggestive, and therefore deserving of registration. By contrast, the Trademark Examining Attorney contends that this term conveys an immediate idea of a significant feature of computer services in general, of applicant’s services as recited, and of “cloud computing” services, which the Trademark Examining Attorney contends is an integral part of applicant’s computer services as detailed herein. Serial No. 77404271 - 3 - Merely Descriptive under Section 2(e)(1) A mark is merely descriptive, and therefore unregistrable on the Principal Register pursuant to the provisions of Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), if it immediately conveys “knowledge of a quality, feature, function, or characteristic of the goods or services.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) [ASPIRINA is merely descriptive of analgesic product]. See also In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003) [MONTANA SERIES and PHILADELPHIA CARD are merely descriptive of applicant’s “affinity” credit card services; a “mark is merely descriptive if the ultimate consumers immediately associate it with a quality or characteristic of the product or service”]; In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [THE ULTIMATE BIKE RACK is merely descriptive of bicycle racks]; In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987) [APPLE PIE is merely descriptive of a potpourri mixture]; and In re Quik-Print Copy Shops, Inc., 616 F.2d 523, 205 USPQ 505, 507 (CCPA 1980). To be “merely descriptive,” a term need only describe a single significant quality or property of the goods [or services]. Gyulay, Serial No. 77404271 - 4 - 3 USPQ2d at 1009. Descriptiveness of a mark is not considered in the abstract, but in relation to the particular goods or services for which registration is sought. That is, when we analyze the evidence of record, we must keep in mind that the test is not whether prospective purchasers can guess what applicant’s goods [or services] are after seeing only applicant’s mark. In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978) [GASBADGE merely descriptive of a “gas monitoring badge”; “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.”]. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them. In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); and In re Patent & Trademark Services Inc., 49 USPQ2d 1537, 1539 (TTAB 1998). In addition to considering the applied-for mark in relation to the goods or services for which registration is sought, the proper test for descriptiveness also considers the context in which the mark is used and the significance that the mark is likely to have on the average purchaser Serial No. 77404271 - 5 - encountering the goods or services in the marketplace. In re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991); and In re Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986). A mark is suggestive, and therefore registrable on the Principal Register without a showing of acquired distinctiveness, if rather than immediately conveying information about the goods or services, multiple steps of reasoning are required to reach a conclusion as to the nature of the goods or services. “Whether a given mark is suggestive or merely descriptive depends on whether the mark ‘immediately conveys … knowledge of the ingredients, qualities, or characteristics of the goods … with which it is used,’ or whether ‘imagination, thought, or perception is required to reach a conclusion on the nature of the goods.’” (citation omitted) In re Gyulay, 3 USPQ2d at 1009; In re Home Builders Association of Greenville, 18 USPQ2d 1313 (TTAB 1990); and In re American Greetings Corp., 226 USPQ 365 (TTAB 1985). Hence, the ultimate question before us is whether the term Always Available conveys information about a significant feature of applicant’s services with the immediacy and particularity required by the Trademark Act. Serial No. 77404271 - 6 - Analysis The Trademark Examining Attorney has made of record dictionary definitions as well as information drawn from the Internet – reference drawn from periodicals, blogs and proprietary websites of third parties and of applicant. Merely descriptive as to computer services generally The evidence the Trademark Examining Attorney placed into the record as to the meaning of Always Available in the context of computer services generally is criticized by applicant as being impermissibly broad. The Trademark Examining Attorney starts with dictionary definitions of the individual words, “always” and “available.” She contends that the word “always” means “at all times,” that the word “available” means “accessible,” so that “Always Available” clearly means “accessible at all times.” We find that these terms separately have a descriptive significance in relation to applicant’s services. As noted by the Trademark Examining Attorney, a term that merely combines two descriptive words is not registrable if the individual components retain their descriptive meaning in relation to the services and the combination results in a composite mark that is itself descriptive. See In re Serial No. 77404271 - 7 - King Koil Licensing Co. Inc., 79 USPQ2d 1048 (TTAB 2006) [THE BREATHABLE MATTRESS merely descriptive of “beds, mattresses, box springs and pillows”]; and In re Associated Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988) [GROUP SALES BOX OFFICE merely descriptive of theater ticket sales services]. Applicant argues that the applied-for term “is not intended to imply that Applicant’s computer services are ‘always available’ to customers” but rather “that Applicant’s technology safeguards key customer data.” This is a curious argument, and one that we find most unpersuasive. Rather, based upon the dictionary definitions alone, we conclude that when these two descriptive terms – “always” and “available” – are combined into Always Available, as presented in the standard character drawing, the separate meanings of the individual components are not lost. Furthermore, we have no doubt but that the combined term, Always Available, is merely descriptive when applied to applicant’s recited services. That is to say, we find that the term “Always Available” immediately describes a significant characteristic of the named services. See In re Abcor Development Corporation, 200 USPQ at 219 [J. Rich concurring that “the present name of the [gas monitoring badge] is GASBADGE”]. Serial No. 77404271 - 8 - Yet throughout the prosecution of this application, applicant has argued that its mark should be found non- descriptive as were marks such as SUGAR & SPICE. Hence, the question remains whether the newly coined combination of descriptive components creates a unitary mark having a unique, incongruous, or otherwise non-descriptive meaning in relation to the services such that it renders the combination registrable as a mark. For example, if a combination of descriptive components has a readily understood, alternative meaning, the mark would be considered to have a double entendre and will not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the services. See The Institut National des Appellations D'Origine v. Vintners International Co. Inc., 958 F.2d 1574, 22 USPQ2d 1190 (Fed. Cir. 1992) [CHABLIS WITH A TWIST may well project a double meaning, e.g., the unusual approach of adding a citrus flavoring to wine]; In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382, 384 (CCPA 1968) [the term SUGAR & SPICE held not to be merely descriptive of bakery products]2 and 2 In this oft-cited decision of the predecessor to our principal reviewing court, the Court found this matter clearly functioned as a trademark because “sugar and spice” is a well-known phrase taken from a nursery rhyme. The composite mark is inherently distinctive as applied to bakery products – even ones containing these two ingredients – precisely Serial No. 77404271 - 9 - In re National Tea Co., 144 USPQ 286 (TTAB 1965) [NO BONES ABOUT IT for fresh pre-cooked ham]. In addition to the straightforward and merely descriptive meaning, the combined term in each of these cases creates a second meaning or interpretation that members of the public would make quite readily, thereby rendering the combination registrable as a mark. Applicant has not explained exactly what the readily understood but non-descriptive interpretation of consumers would be, and hence this term stands in sharp contrast to the very clear secondary interpretations that were present in double entendre marks such as CHABLIS WITH A TWIST, SUGAR & SPICE or NO BONES ABOUT IT referred to above. In addition to dictionary definitions, the Trademark Examining Attorney has shown that in the computer field generally, the combined term means that the software solutions or online computer services are available through computer networks that are accessible at all times, allowing the customer uninterrupted access to its applications and data: Online Library Services allows you to access and manage your own geo-spatial data online through Spot Online Access. We are hosting because this combination from the nursery rhyme is familiar to anyone seeing or hearing this mark. Serial No. 77404271 - 10 - and managing the data on our end. Available 24/7, your data are always available for you to access.3 -o0o- Access 2007 & SharePoint: The control room operators keep the log database on the C:\drive of the control-room computer. They have resisted migrating to a SQL Server solution because they feel the Access database is “always available,” even in case of any kind of network issue or larger emergency. Network interruptions are infrequent, but they certainly happen more than hard-drive crashes. The C:\drive is not backed up, however, so I’m not comfortable with the solution ….4 -o0o- Skoot is always available. Access your files online, anytime, anywhere with Web Skoot.5 -o0o- AlertSite is a leading provider of Web performance management solutions that ensure a customer’s Web-based services and applications are always available and running at peak performance. More than 2,300 customers worldwide rely on AlertSite to understand and enhance the end-user ….6 -o0o- 3 http://access.spot.com/FAQ.html 4 http://www.tech-archive.net/Archive/SharePoint/microsoft. public.sharepoint.windowsservices/2007-02/msg00232.html 5 http://www.skootit.com/page.aspx?nid=22 6 INTERNET WEEKLY NEWS, January 5, 2009. Serial No. 77404271 - 11 - To ensure its online collaboration services are always available and performing without compromise, Box.net selected A10’s AX Series for the exceptional price/performance leadership.7 (emphasis in office copies submitted by the Trademark Examining Attorney) Based on this type of evidence, we agree with the contention of the Trademark Examining Attorney that the term “always available” is used routinely to describe computer services always accessible to the user, and hence, immediately conveys information about a significant and valued feature of many types of computer services. Merely descriptive as to applicant’s recited services In the context of applicant’s recited computer services, we are persuaded by the evidence of record that the term Always Available will immediately convey information to potential consumers about a significant feature of applicant’s services. Specifically, we find that applicant itself touts the uninterrupted access its customers will enjoy at all times. We see no reason the average computer user would perceive any novel, incongruous or non- descriptive meaning for the combination of these two words. 7 LAB BUSINESS WEEK, February 22, 2009. Serial No. 77404271 - 12 - The Trademark Examining Attorney focuses on applicant’s recited services: “computer services, namely, creating indexes of information, sites and other resources available on computer networks.” She then refers to specific information in the record drawn from applicant’s own website: Always Available technology and services protect against catastrophic downtime, providing continuous access to company data, applications and transactions …. Applicant’s services also provide consumers with secure Always Available access to their personal email, remote storage data vault and remote medical storage data vault.8 If one application server, data center, or cloud suffers from a disaster, all activities continue uninterrupted on the others.9 Companies large and small value uninterrupted access to critical data in spite of the reality of server crashes or network problems, whether small emergencies or catastrophic events. The Trademark Examining Attorney argues that it is clear from applicant’s own recitation of services, as described further on its website, that a major selling point of applicant’s services is that its customers are provided seamless functionality despite any 8 See http://www.zeronines.com attached to the Office action of October 15, 2009. 9 See Exhibit A attached to Applicant’s Response of September 17, 2009 Serial No. 77404271 - 13 - kind of disaster. That is, applicant’s cloud computing, physical hosting at great distances, and multisychronization guarantees that the user has continuous access to its applications and data. Applicant’s website refers to Always Available as its “motto,” and a motto ostensibly understandable to its customers without reliance on “imagination, thought or perception.” Merely descriptive as to fail-safe network services Finally, the Trademark Examining Attorney makes the case that the term “always available” is already being used descriptively by a variety of third parties offering competing versions of business continuity technology, and especially service providers offering fail-safe network architectures that involves multi-casting, cloud computing, an SaaSGrid, etc. However, in its reply brief, applicant summarily dismissed this extensive third-party usage as follows: The Examining Attorney’s arguments concerning the use of the term “Always Available” in connection with cloud computing services likewise are unhelpful because cloud computing services are not identified in Applicant’s services description. While it is true that applicant’s recitation of services [“computer services, namely, creating indexes of information, sites and other resources available on computer Serial No. 77404271 - 14 - networks”] does not specifically make reference to “cloud computing,” we find the Trademark Examining Attorney’s evidence in this regard to be most helpful. While “cloud computing” is a relatively new and rapidly evolving technology, the Trademark Examining Attorney has placed into the record definitions and blogs offering a basic primer on this emerging combination of software, infrastructure and services: DEFINITION: Cloud computing is a general term for anything that involves delivering hosted services over the Internet. … The name cloud computing was inspired by the cloud symbol that's often used to represent the Internet in flowcharts and diagrams. A cloud service has three distinct characteristics that differentiate it from traditional hosting. It is sold on demand, typically by the minute or the hour; it is elastic -- a user can have as much or as little of a service as they want at any given time; and the service is fully managed by the provider (the consumer needs nothing but a personal computer and Internet access). Significant innovations in virtualization and distributed computing, as well as improved access to high-speed Internet and a weak economy, have accelerated interest in cloud computing… 10 CLOUD COMPUTING: Heads in the cloud Having your content in the cloud means it’s always available through a variety of access methods… 11 10 http://searchcloudcomputing.techtarget.com/sDefinition/0,,sid201 _gci1287881,00.html 11 NEW MEDIA AGE, June 18, 2009, at 26. Serial No. 77404271 - 15 - Some Notes on Defining Cloud Computing There seems to be some key attributes that describe cloud computing. … Some key attributes that apply to cloud computing based on the industry’s use Circa 2007: *Certainly Internet-based and very network centric … *A Level of Infrastructure (or device) abstraction, which in itself is can be part of the service provided … *A Level of management automation … *Some level of data abstraction in which the data you need is always available but its available everywhere … In terms of general usage of the term "cloud computing" it seems that only one thing is common -- its network centric with some level of automation that can provision resources or services automatically… So it would seem that cloud computing is defined uniquely as the combination of management abstraction/automation + network-centric data-centric applications. In fact, the focus is squarely on the data (and its control [Application Programming Interfaces]) and very little else. 12 Cloud Computing for Larger Companies – The Hybrid Approach September 10, 2009 … 2. Large Departmental Applications – Again, put them in the Cloud. Deal with them as if they were Enterprise Applications and your users will love you. Always available from anywhere, always up, delivered in a thin client method so that they can run when as where needed. Cost effective and rock solid. Perfect! 13 2009 HORIZON REPORT: THE K12 EDITION Two to Three Years: Cloud Computing There are cloud-based counterparts to many common software tools from email to word processing and spreadsheets. … To the end user the cloud is invisible, and the technology that supports the application does not matter – the fact that the applications are always available is key.” 14 12 http://blogs.sun.com/jasoncatsun/entry/some_notes_on_defining_cloud 13 http://ivdesk.wordpress.com/2009/09/10/cloud-computing-for- companies-over-200million-the-hybrid-approach/ 14 http://wp.nmc.org/horizon-k12-2009/chapters/two-to-three-years- cloud-computing/ Serial No. 77404271 - 16 - The Cloud With A Silver Lining… … My point, all the necessary precautions have been taken by those that supply Cloud based services – to ensure there systems are properly protected, and always available. 15 Cloud network-attached storage (NAS) emerges to address secondary file storage needs What are the benefits of cloud NAS? Well, with a typical NAS device, you are stuck with that location. So if something goes wrong with that location, your services are going to be down. So, if you have a critical file serving requirement, and if you are out somewhere traveling and need to access it, but the router in your office went down, you are out of luck. But, if you move it into the cloud it is virtually available and always available. The key benefit is that you can access your information at any time without the restrictions of the physical location of the data. 16 On the other hand, there are several important attributes that make various forms of cloud computing potentially attractive. Things like the dynamic nature of most cloud computing architectures -- there's no need to pre-provision maximum-case capacity (server, storage and network) on a per- application. Applications use exactly what they need -- when they need it -- and no ore -- out of a giant pool of resources. As a result, this behavior was one of the things that made cloud architectures extremely efficient at what they did -- in addition to doing them at great scale. Resources in a cloud are always available on-demand -- whether to provision a new application, or to bump up performance if needed. And when the application doesn't need quite so much, the resources are returned to the pool for others to use. 17 15 http://enterprisesolutionsblog.shavlik.com/2009/10/07/the-cloud- with-a-silver-lining%E2%80%A6/ 16 http://searchsmbstorage.techtarget.com/generic/0,295582,sid188 _gci1364787,00.html#q2 17 http://chucksblog.emc.com/chucks_blog/2009/03/emc-2009-strategic- forum-private-cloud.html Serial No. 77404271 - 17 - However, applicant’s own blog demonstrates the use of “always available” in the ordinary sense of these words as meaning “virtually 100% availability” – not as a source indicator. Rather, we are convinced by applicant’s own web pages that applicant’s recited services provided under the designation “Always Available,” by providing synchronous identical processing on multiple cloud nodes geographically separated by thousands of miles, does indeed rely upon cloud computing technologies: September 15, 2008 Cloud Failure: The Myth of Nines Visit Reuven Cohen's blog • For about as long as there have been computer networks, administrators have attempted to keep these networks up and running. It seems to be a continuous battle between faulty hardware, poorly written software, unreliable connectivity and random acts of God. With the emergence of cloud computing we are now for the first time close to realizing a computing environment where we are able to focus less on keeping our applications up and more on making them run more efficiently and effectively…. • In a recent conversation with Alan Gin founder of a super secret stealth firm called ZeroNines, Alan described an interesting philosophy. He said the problem with most disaster recovery plans is the recovery is reactive, it is what happens after a disaster has already harmed your business. He said on its face, this is an unsound strategy… • To be competitive in today's always connected, always available world. We need to reinvent the fundamental idea of disaster recovery. One of the major benefits to using cloud computing is that you can make these types of failover assumptions well before they happen using an emerging global toolset of cloud components. It's not a matter of if, but a matter of when, when you take into consideration that application components will fail then you can build an application that features "failure as service.” One that is always available, one with Zero Nines. 18 18 http://zeronines.blogspot.com/2008/09/cloud-failure-myth-of- nines.html, attached to the Office action of October 15, 2009. Serial No. 77404271 - 18 - Benefits of the ZeroNines® Always Available™ Technology • Protects against interruptions and outages of any kind, with no need for recovery. • Ensures virtually 100% availability of mission critical information, data, applications and transactions. • Integrates seamlessly with your existing infrastructure, virtualized environments and clouds. • Cuts costs for disaster recovery systems that leave you vulnerable. • Helps you comply with strict federal compliance standards, including Sarbanes-Oxley and HIPAA. • Safeguards your business and its reputation, regardless of its size or complexity. 19 Finally, we find it somewhat disingenuous that in spite of the many third party uses of the term “always available” cited by the Trademark Examining Attorney, that applicant continues to argue that there is no showing that competitors need to use the term “Always Available” to market their products: Our Joomla Applications What does it mean to you? Running a Joomla application in the cloud provides many benefits that are not possible to achieve with traditional infrastructure and hosting, such as: High Availability. Building highly available applications has always been difficult. AppLogic provides affordable high-availability to all applications. In the AppLogic cloud, all storage is mirrored. Should a server fail, all data remains available and affected application components are restarted automatically for you. This way you can be sure your customers do not lose data and your service is always available. 20 19 Applicant’s marketing brochure attached to the applicant’s response of September 17, 2009, Exhibit A, first page. 20 http://www.cloudaccess.net/joomla-cloud-hosting- solution.html Serial No. 77404271 - 19 - Apprenda’s SaaSGrid Cloud Application Server Announced as the First Technology Available via PEER 1's High-Performance Infrastructure June 25, 2009 …PEER 1 ensures customers’ online presence is always fast, always available… 21 Egnyte Local Cloud is an always available local cache of files from the On Demand File Server… 22 VMware vows to overhaul data center with “cloud operating system” Aggregation of data center resources highlights new VMware virtualization platform By Jon Brodkin, NETWORK WORLD, April 21, 2009 VMware has unveiled VSphere, the long awaited overhaul of its core virtualization platform which is designed to aggregate the virtual resources in the data center into one centrally managed computing pool… Bogomil Balkansky, VMware's vice president of product marketing, says the goal of the cloud operating system is to turn IT into a pay-as-you-go service that is always available through a Web portal. VSphere aggregates all the virtualized x86 components of the data center and gives the IT administrator greater control over service levels, he says. "Our role is to enable customers to build their own internal clouds," he says. 23 Computer Technology Journal SOONR: New Soonr 3.0 Integrates the iPhone, Netbook, PC and Mac with Break-through Productivity in the Cloud May 14th, 2009 … Whenever your computer is online, Soonr automatically and instantly backs up your files in your personal cloud with full version control, making them always available from anywhere….24 21 http://apprenda.com/news-and-updates/press-releases/apprenda-s- saasgrid-cloud-application-server-announced-as-the-first-technology- available-via-peer-1-s-high-performance-infrastructure/ 22 www.egnyte.com/corp/local_drive.html 23 http://www.networkworld.com/news/2009/042109-vmware-vsphere.html 24 COMPUTER TECHNOLOGY JOURNAL, May 14, 2009, at 271. Serial No. 77404271 - 20 - ENTERPRISE CLOUD ARCHITECTURE BUILT TO PERFORM … ALWAYS AVAILABLE The grid architecture of The Enterprise Cloud provides complete physical redundancy to eliminate downtime due to hardware failure. In fact, the system can even move applications across physical devices live and with no service interruption… 25 Soonr Brings Mobile Cloud Computing to the iPhone Just as today's mobile phones let you send and receive emails while on the go, Soonr now makes the documents on your Mac or PC completely mobile. Whenever your computer is online, Soonr automatically and instantly backs up your files in your "personal cloud," making them always available to you…. 26 Applicant has made two other types of arguments for registrability. Applicant has introduced into the record more than two dozen third party registrations, which it argues demonstrate that the U.S. Patent and Trademark Office routinely finds composite marks beginning with the word “ALWAYS _____ ” to be suggestive rather than merely descriptive. We have reproduced a representative sampling of those closest to the instant application: ALWAYS PAYS for “dissemination of advertising of the goods and services of others via a global computer network” in Int. Class 35;27 25 http://www.theenterprisecloud.com/; http://www.terremark.com/ 26 http://www.soonr.com/release15.php 27 Registration No. 2780831 issued on November 4, 2003; Section 8 affidavit (six-year) accepted and Section 15 affidavit acknowledged. Serial No. 77404271 - 21 - ALWAYS LISTENING for “microphones, microphone cables, microphone mounts and stands, microphone receivers and transmitters, microphone power supplies, headphones, phonograph cartridges and styli, audio mixers and record turntables” in International Class 9;28 ALWAYS AVAILABLE HARDWARE for “providing appliance hardware replacement services, namely, technical monitoring of computer hardware for failure” in International Class 42;29 ALWAYS UNDERSTANDING for “computer software and computer software development tools for natural language recognition …” in Int. Class 9;30 for “broadcasting programs via a global computer network; radio broadcasting” in Int. Class 38;31 Always On for “public utility services in the field of electric energy” in International Class 39;32 The totality of applicant’s evidence of third-party registrations having marks that include as the leading word, “Always,” is not persuasive of a different result herein. The fact that other, very different marks may contain the term “Always” for different goods and/or services does 28 Registration No. 3184378 issued on December 12, 2006. 29 Registration No. 3390442 issued on February 26, 2008. No claim is made to the exclusive right to the word “Hardware” apart from the mark as shown. 30 Registration No. 3424023 issued on May 6, 2008. 31 Registration No. 3447016 issued on June 10, 2008. 32 Registration No. 3527553 issued on November 4, 2008. Serial No. 77404271 - 22 - not address whether “always available” is merely descriptive within the context of applicant’s computer services. For example, we are not privy to the files in these third-party registrations, but there are certainly quick ways of distinguishing specific registrations: ALWAYS PAYS – combined term does not bear the same link to advertising as does applicant’s term in relation to computer services; ALWAYS LISTENING – no way of knowing if other merchants of audio transmission equipment used this term; ALWAYS AVAILABLE HARDWARE – appears to be advertising puffery inasmuch as there is no expectation that hardware replacement services are held to a 99.99% availability standard; ALWAYS UNDERSTANDING – no way of knowing if other merchants of language recognition software used this term; ALWAYS AGGRESSIVE, ALWAYS PROGRESSIVE – rhyming cadence and indefinite connotation as to broadcasts; and ALWAYS ON – for an electric utility, this is a word play on being “electrified/hot” and being “engaged/turned on.” The contrast with these listed mark from the instant case is even greater in light of applicant’s boast that its service “[e]nsures virtually 100% availability of mission critical information, data, applications and transactions.” Each case must be decided on its own facts, and a term that is merely descriptive, such as the one at issue herein, Serial No. 77404271 - 23 - should not be registered on the Principal Register simply because similar marks appear on the register. In re Scholastic Testing Service, Inc., 196 USPQ 517 (TTAB 1977). In any event, while the Office values consistency, we are not bound by the prior actions of individual Trademark Examining Attorneys. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [“Even if some prior registrations had some characteristics similar to [applicant’s] application, the PTO’s allowance of such prior registrations does not bind the board or this court.”]. Finally, we observe that the fact applicant disagrees with the Trademark Examining Attorney’s refusal of mere descriptiveness does not, as applicant argues, “bolster[] a conclusion that the Mark is suggestive” inasmuch as this would describe virtually every Final refusal under Section 2(e)(1) of the Lanham Act that is appealed to this Board. Decision: The Trademark Examining Attorney’s refusal to register under Section 2(e)(1) of the Act the term Always Available in connection with “computer services, namely, creating indexes of information, sites and other resources available on computer networks” is hereby affirmed. Copy with citationCopy as parenthetical citation