Monday, November 14, 2005

TTAB Reverses Mere Descriptiveness Refusal of "CRITICALWIRELESS" for Transceivers

The Board easily dismantled a poorly constructed Section 2(e)(1) refusal to register the mark CRITICALWIRELESS, finding the mark not merely descriptive of a "transceiver unit for remote monitoring systems." In re CriticalWireless Corp., Serial No. 78164647 (November 1, 2005) [not citable].

Uncritically relying on the appearance of the word combination "critical wireless" in various NEXIS excerpts (consisting primarily of newswire releases), the Examining Attorney contended that there is "widespread industry use of the wording 'critical wireless' to identify and define a particular class ... of wireless goods specifically designed to meet business and industrial government critical wireless standards and needs, as well as meet government critical wireless standards." (The Board noted that newswire stories are generally given little probative value, but here Applicant did not object, and indeed relied on these items in its brief).

The Board disagreed. Although some of the NEXIS excerpts use the term "mission critical wireless," when viewed in context the word "critical" modifies the word "mission," not the word "wireless." In fact, in many of the excerpts, the phrase "mission critical" is hyphenated, and in two excerpts, "critical" and "wireless" are separated by a comma: e.g., "a recognized leader in mission critical, wireless networking solutions."

Finally, in three other excerpts in which the word combination "critical wireless" appears, the word "critical" is actually modifying a multi-word phrase: e.g., "Its switching frequency of 3 MHz keeps switching noise out of critical wireless frequency bands."

Therefore the Board reversed the refusal to register because the PTO had failed to carry its burden of proof.

TTABlog comment: Not often are mere descriptiveness refusals reversed, but this one was a glaringly bad one.

Text Copyright John L. Welch 2005.


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