Friday, September 14, 2012

"N3D" Not Merely Descriptive of Broadcasting Services, Says TTAB

The Board reversed six Section 2(e)(1) refusals of the mark N3D, in standard character and design form, and N3D DIRECTV, finding the marks not to be merely descriptive of broadcasting services, television programming, and the like, in classes 38 and 41. It agreed with Applicant Direct TV that "there is no threat that applicant's registrations will remove a merely descriptive term from the public domain." In re DIRECT TV, LLC, Serial Nos. 77967755; 77967758; 85082281; 85082282; 85082285; and 85082287 (September 11, 2012) [not precedential].

The Examining Attorney maintained that the letter "N" stands for "in" and "3D" means "three-dimensional." In other words, N3D is "both an abbreviation and a phonetic equivalent of "in 3-D," and thus merely descriptive of broadcasting services utilizing a three-dimensional format.

Direct TV, relying on a "detailed critique" of the PTO's evidence, argued that the letter "N" is not an obvious abbreviation of "in," nor is it a phonetic equivalent, and therefore consumers would not perceive N3D as meaning "in 3D."

The Board began with the insightful observation that "N" is the 14th letter of the English alphabet, and is pronounced "en." At [a dubious reference, at best - ed.], "in" is one of the 42 meanings of the letter "N." The Examining Attorney also feebly pointed to several uses of both the term 3D and the phrase "in 3D" at Applicant's website, but the Board found that these instances show that 3D and "in 3D" are not substantially synonymous. Similar third-party usage was equally non-probative.

Finally, the PTO relied on several registrations for marks in which the letter "N" substitutes for "in": NCOGNITO, N-TIMIDATOR, N-SIGHT, N-TACT, NFLIGHT, NFUSION, NSIDE REALTY GROUP, N'TENSE, N'GENUITY, AND N-JECT. But the Board noted that in those cases, the letter "N" takes the place of "IN" as the first portion of a commonly recognized and understood word, making it easier for a consumer to perceive the substitution of "N" for "IN." Here that is not the case.

The Board concluded that consumers are not likely to perceive the letter "N" as meaning "in," or even pronounce it as "in." It agreed with Applicant Direct TV's assessment that N3D is not a "useful abbreviation:"

Acronyms and abbreviations are created for the sake of convenience, because they condense a longer phrase into a shorter string of letters or syllables. However, there is no particular reason why anyone would abbreviate 'in 3D' as N3D. N3D has the same number of syllables as 'in 3D,' and only on additional letter. It saves on space or time.

As Direct TV stated in its brief and at oral argument, competitors are free to use the descriptive phrase "in 3D," but there is no reason why they would need to use the term N3D to describe their services.

And so, the Board reversed the refusals.

TTABlog comment: Since I had trouble understanding the Board's opinion in his recent OpenCL victory, TTABlogged last Friday, Glenn Gundersen suggested that I wear 3-D glasses while reading this opinion. I think it worked!

Text Copyright John L. Welch 2012.


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