Thursday, March 07, 2013

Test Your TTAB Judge-Ability: Is LIVEVIEW Merely Descriptive of Game Scouting Cameras?

WGI Innovations applied to register the mark LIVEVIEW for "game scouting cameras," but the PTO refused registration on the ground of mere descriptiveness under Section 2(e)(1). What is a game scouting camera, you might ask? According to applicant it is a camera that is mounted on a tree, post, etc., to take and store pictures of wildlife, the camera being activated by a sensor without the user being in the vicinity. WGI Innovations appealed. How do you think this came out? In re WGI Innovations, Ltd., Serial No. 85245646 (February 14, 2013) [not precedential].

The Examining Attorney, relying on dictionary definitions of the constituent words, contended that LIVEVIEW is merely descriptive because LIVE and VIEW are each descriptive of the goods, and their combination retains that descriptive significance. She urged that the mark describes the function of the camera, i.e., to allow "the user to capture live images or views of actual, real live animals on film in their natural environment, and the images may be viewed, examined or inspected carefully at a later time." [emphasis in original]. In other words, LIVEVIEW describes the fact that the user may VIEW the film that was shot LIVE of LIVE animals.

The record showed, however, that the term "live view" usually refers to either the preview frame of a camera's LCD or the function of real time streaming of the "live view" from a camera. WGI's camera provides neither. The preview frame idea is incongruous vis-a-vis applicant's camera because the pictures are taken when the user is absent.

The Board concluded that a multi-stage reasoning process would be required to recognize that LIVEVIEW could refer to observing animals in their natural habit by means of a recorded image that is not really "live."

And so the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlog note: Well, how did you do? Do you agree with the decision? Is the mark misdescriptive of the goods as identified in the application?

Text Copyright John L. Welch 2013.

6 Comments:

At 10:21 AM, Anonymous Ken Lynch said...

The camera does not really scout game?

 
At 10:29 AM, Blogger John L. Welch said...

Is it misdescriptive because the camera does not provide a "live view", as that term is understood?

 
At 11:59 AM, Anonymous Anonymous said...

I think the decision is reasonable, the mark is suggestive & the examiner was being a real refusenik stickler. How about a possible double-entendre with the word "live" (as in live animals)?

I don't think there is any misdescriptiveness because the mark does not convey any concrete, hard fact a consumer would rely upon to decide to purchase the goods.

 
At 12:36 PM, Anonymous Anonymous said...

...as that term is understood ... by whom?

The misdescription must be "believable". Presumably the type of consumer who purchases a "game scouting camera" knows and will not believe that it has any "live view" features.

But what about general camera consumers who know and understand what a "live view" camera feature is. The use of LIVEVIEW may be believable and material to them.

Seems like a dangerous argument to make but it worked for this Applicant. Curious how the Board would have ruled had the Examiner included misdescriptiveness/deceptiveness as an additional ground for refusal.

 
At 2:15 PM, Blogger Annette Heller said...

I believe it is suggestive since it requires some thought as to what the camera may be able to do! Isn't this the definition of suggestive while the definition of descriptive is that the mark immediately tells one what it does.

 
At 7:56 PM, Anonymous Zick Rubin said...

John,
The goods were described in the application as "game scouting cameras." Presumably such cameras might or might not provide real time ("live") streaming to a viewer. The TTAB says the record indicates that the cameras DON'T provide real-time streaming, and it therefore reverses the "descriptive" refusal. But doesn't that provide an end-run for the applicant? It could start providing real-time streaming the day the mark is registered. Could a competitor move to cancel the registration on that account?
I thought that descriptiveness was supposed to be determined on the basis of the description of goods provided with the application, not additional evidence of how the product "actually" operates.

 

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