TTAB Deems "iPOSTAGE" Merely Descriptive of Internet Postage
Affirming a Section 2(e)(1) refusal to register, the Board found the mark iPOSTAGE to be merely descriptive of software and services that allow users to print digital data on tangible media (i.e., postage). In re PSI Systems, Inc., Serial No. 78648563 (August 21, 2007) [not precedential].
Examining Attorney Jennifer H. Dixon submitted an Acronym Finder definition of "i" as shorthand for "Internet," and an Encarta definition of "postage" as "marks showing payment: the stamps, labels, or other marks on an item of mail showing that the charge has been paid." Various Nexis articles and Internet web pages sowed use of the term "Internet postage."
Applicant 's own website pages refer to itself as an "Internet Postage" service the "lets you print postage for all your mail."
The Board was not persuaded by Applicant's argument that "i" and "postage" have multiple meanings, making the combination ambiguous. Descriptiveness, of course, must be determined in relation to the goods and services at issue, not in the abstract.
The Board then found that iPOSTAGE describes a significant characteristic or function of Applicant's goods and services, which are used to create Internet postage.
Finally, Applicant unsuccessfully argued that, because other parties have registered "I" formative marks, the refusal to register its mark violated applicant's constitutional rights under the equal protection component of the Fifth Amendment. The Board cited the CAFC's decision in In re Boulevard Entertainment, Inc., 67 USPQ2d 1475 (Fed. Cir. 2003:
"Even if the PTO had previously allowed a mark similar to Boulevard's marks to be registered, that would not give Boulevard an equal protection right to have its mark registered unless the agency acted pursuant to some impermissible or arbitrary standard. *** The fact that, whether because of administrative error or otherwise, some marks have been registered even though they may be in violation of the governing statutory standard does not mean that the agency must forgo applying that standard in all other cases."
And so, the Board constitutionally affirmed the Section 2(e)(1) refusal to register.
Text Copyright John L. Welch 2007.