Tuesday, March 14, 2006

TTAB Citable No. 15: "FM4910" Merely Descriptive of Flame Retardant Plastic

If you thought FM4910 was some sort of pirate, off-shore radio station, think again! FM4910 is a fire testing protocol developed in response to the semiconductor industry's demand for less flammable plastics. The Board, in its 15th citable decision of 2006, found the mark FM4910 merely descriptive of Applicant Westlake Plastics' "flame retardant fluoropolymer plastic material for the semiconductor industry sold in sheets, rods, and other preformed shapes." In re Westlake Plastics Co., 79 USPQ2d 1151 (TTAB 2006).

Examining Attorney Carol Spils relied on Nexis excerpts and third-party websites in contending that "FM4910 designates a widely known standard for measuring the clean room flammability of plastic materials, and that the term merely describes a feature or characteristic of applicant's plastic materials, namely that the materials 'meet or are represented to meet the FM4910 flammability test protocol.'"

Applicant Westlake Plastics argued that FM4910 "is not even suggestive of the goods, let alone descriptive:" it is a "third-party" protocol used in the insurance industry that does not describe a characteristic or feature of the goods. According to Westlake, "speed, indeed blinding, lightning-like speed, is an integral, essential component of the descriptiveness test," and here a multi-step reasoning process would be required to make an association between FM4910 and its products.

Not so fast! said the Board. It agreed with the PTO that FM4910 immediately describes a key characteristic or feature of Westlake's plastics materials, namely that the materials meet a prescribed standard of fire safety. There was no dispute that FM4910 refers to a fire safety protocol developed by a third party insurance company, FM Global, for semiconductor fabrication plants. The evidence showed that plastics manufacturers and suppliers tout their compliance with the FM4910 standard. And Westlake explained at oral hearing that its goods are used to produce trays or carriers used by semiconductor fabricators.

Charred, but didn't ignite

The Board concluded that, although the FM4910 protocol "may have been developed by an insurance company, it is clearly a term that is recognized and used outside the insurance industry, contrary to applicant's contention."

"... prospective purchasers of applicant's plastic materials for use in manufacturing clean room equipment would, without any guesswork or the exercise of any imagination, immediately recognize FM4910 as signifying an approved class of plastic materials, and they will rely on that representation in making their purchasing decisions."

The Board therefore affirmed the Section 2(e)(1) refusal.

Text Copyright John L. Welch 2006.


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