Monday, December 29, 2008

Precedential No. 54: "DEC" Merely Descriptive of Nuclear Decay Batteries, Says TTAB

If your energy is waning and you need your battery re-charged, this is not the case for you. In an enervating rather than energizing decision, the Board affirmed a Section 2(e)(1) refusal to register the mark DEC, finding it to be merely descriptive of "batteries deriving power from nuclear decay processes" and for related services. Applicant BetaBatt, Inc. conceded that DEC is an acronym for "direct energy conversion," and the Board found the phrase to be merely descriptive of the products and services and that relevant consumers would recognize the abbreviation. In re BetaBatt, Inc., 89 USPQ2d 1152 (TTAB 2008) [precedential].

Examining Attorney Michael S. Levy relied on various Internet articles and websites, and on an Acronym Finder entry identifying DEC as "Direct Energy Conversion." [TTABlog note: Acronym Finder lists 70 "verified definitions" for DEC. The website includes the following statement in its "Terms of Use": "Disclaimer. We've done our best to ensure the accuracy of the Acronym Finder database, however, we do not take responsibility for the accuracy of any of the information in the acronym database. Capitalization is NOT necessarily correct. Use information from this site at your own risk."]

BetaBatt did not dispute that DEC stands for "Direct Energy Conversion," but it asserted that the PTO failed to prove that "the common everyday purchaser of a battery that is used in connection with hearing aids or similar medical devices will know that DEC stands for direct energy conversion." Applicant further argued that a multi-stage reasoning process and additional information is required before a consumer will know what DEC stands for.

The Board observed that in order to conclude that DEC is merely descriptive of Applicant's goods and services, it would have to find the following:

1. DEC is an abbreviation for “direct energy conversion;"

2. "Direct energy conversion" is merely descriptive of the products and services listed in the application; and,

3. A relevant consumer viewing DEC in connection with applicant’s products and services would recognize it as an abbreviation of the term "direct energy conversion."

The Board found all three. As to (1), the Acronym Finder entry and Applicant's concession sufficed. As to (2), the PTO's evidence established that "direct energy conversion" is descriptive of Applicant's products and services.

As to (3), the Board found that "DEC is routinely used as an abbreviation for the term 'direct energy conversion.'" It was up to Applicant to show that DEC will not be so recognized, but Applicant submitted no evidence on this point.

As to BetaBatt's argument that purchasers of hearing aid batteries or batteries for similar devices will not know the meaning of DEC, the Board noted that the identification of goods is not limited to those uses. The goods could include all kinds of batteries deriving power from nuclear decay, including batteries for powering industrial wireless sensors, spacecraft, or car, trucks, and "everything in our homes within the next ten years." Likewise, the recitation of services is not limited to hearing aids and medical devices.

As to BetaBatt's "multi-stage reasoning" contention, the Board pointed out that Applicant did not describe the process nor did it submit any evidence to support its argument.

And so, the Board affirmed the refusal to register.

TTABlog comment: For a discussion of the Acronym Finder website and its reliability, see this posting.

Text Copyright John L. Welch 2008.


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