Tuesday, August 03, 2010

TTAB Reverses Mere Descriptiveness Refusal of "LUA" for Computer Programs

Finding the Examining Attorney's evidence insufficient, the Board reversed a Section 2(e)(1) refusal to register the mark LUA for computer programs. The Examining Attorney contended that LUA is a programming language and therefore that the mark describes a feature of the goods. The Board, however, was not persuaded, having doubts about "the quantity and character of the evidence submitted by the examining attorney." In re Faculdades Catolicas, Serial No. 77423725 (July 21, 2010) [not precedential].

Relying on a dictionary definition of LUA ("an interpreted structured language designed for embedding into other applications") and on Internet excerpts (referring to LUA as a programming language), the Examining Attorney maintained that LUA "describes a feature or purpose of the identified computer programs, namely,that the computer programs are written in or run on the LUA programming language, are for the development of software written in the LUA programming language and are for implementation of the LUA programming language."

Applicant argued that the cited websites refer to its own software and "others are not using their own 'LUA' computer operating programs – they are using Applicant’s LUA computing operating programs. …In fact, the mark, when it appears in searches, already refers to Applicant’s goods." [Emphasis in original].

The Board reversed, concluding that the uses cited by the Examining Attorney "predominantly refer to a single discrete computer programming language developed by Roberto Ierusalimschy, Luiz Henrique de Figueiredo, and Waldemar Celes, members of the Computer Graphics Technology Group at PUC-Rio, the Pontifical University of Rio de Janeiro, and currently made available to the public via the MIT License."

The Board distinguished this case from Loglan Inst., Inc. v. Logical Language Group, Inc., 22 USPQ2d 1531, 1533 (Fed. Cir. 1992), which held the term "Loglan" to be generic for a language. No such finding may be made on the evidence here.

Finally, the Board observed that "on a different record, such as might be adduced in an opposition proceeding, we might reach a different conclusion."

Text Copyright John L. Welch 2010.


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