Monday, January 03, 2005


The TTAB may have gone off the track in affirming a Section 2(e)(1) mere descriptiveness refusal of the mark RAILDRIVER for "electronic train controllers." In re P.I. Engineering, Serial No. 76404455 (November 18, 2004) [not citable].
P.I. Engineering described its RAILDRIVER product as a joystick-type control unit for use with computer software like Microsoft Train Simulator: "it provides levers, switches and buttons that make the enthusiast feel like they [sic] are driving the simulated train on the screen of the computer, using a throttle and reverser, and brake lever specialized for such purposes."

The Examining Attorney submitted NEXIS evidence showing that train operators are also called rail drivers, but only in reference to public employees who operate trains as part of a public transportation system. But the Board saw "no reason [the term] would not also be understood to describe or name drivers of any other type of train as well."

The Board concluded that RAILDRIVER is merely descriptive of P.I. Engineering's product "because it directly informs purchasers of a key feature and purpose of the product, i.e., that the product allows users to simulate the experience of being a rail driver."

It is noteworthy that the Board seemed to shift the burden of proof onto Applicant to show that the term "rail driver" would not apply to any type of train operator. Moreover, isn't the Applicant supposed to enjoy the "benefit of the doubt" when it comes to a Section 2(e)(1) refusal?


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