Wednesday, September 21, 2011

WYHA? TTAB Affirms Genericness Refusal of DIGITAL RF for Communication Devices

The Board affirmed this genericness refusal to register, on the Supplemental Register, the designation DIGITAL RF for various communication devices, finding that "digital RF" is broadly used to identify radio transmitting and receiving equipment that can convert digital signals to analog and vice versa. Examining Attorney Lief Martin submitted dictionary definitions, excerpts from U.S. patents, magazine articles, and web pages to establish a prima facie case that Applicant was unable to overcome. In light of the PTO's evidence, would you have appealed? In re Hypres, Inc., Serial No. 77455602 (August 31, 2011) [not precedential].

The Board noted that one of the web pages cited by the Examining Attorney came from a German source, but under In re Remacle, 66 USPQ2d 1222, 1224 n.5 (TTAB 2002), material from foreign websites on technical or scientific topics may be relevant. [For further explanation, see this article].

Applicant contended that DIGITAL RF is not generic because "[t]here is ... a significant incongruity between 'digital', signifying something that can be expressed discretely in amplitude and time and can be processed and abstracted according to established rules (programs), on one hand, and 'RF', implying something clearly not discrete or independent on [of?] its environment, often defying attempts to mask its complexity."

The Board found the genus of goods at issue to be "communications equipment for sending
and/or receiving radio frequencies and converting them to digital form." And the evidence established that, to the relevant public:

"digital RF" is an abbreviation for "digital radio frequency," and ... certain radio apparatus have as a feature the ability to convert radio waves into digital signals. Digital RF apparatus can convert digital signals to analog (and vice versa) for transmission over radio frequencies. *** These references reflect that “digital RF” is broadly used to identify radio transmitting and receiving equipment which can convert digital signals to analog and vice versa.

Applicant did not offer any evidence in response, but merely disputed the relevance and probity of the examining attorney’s evidence. The Board was not only not persuaded by Applicant's arguments, but noted that it would have come to the same conclusion based on the evidence that Applicant did not dispute.

Text Copyright John L. Welch 2011.


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