TTAB Test: Is CARS Merely Descriptive of Automobile Data Collection Software?
The USPTO refused to register the mark CARS for computer software and hardware for capturing road data and determining safe curve speeds for automobiles, on the ground of mere descriptiveness under Section 2(e)(1). Applicant contended that the term is at worst suggestive of a feature of its goods and services but does not merely describe them, pointing out that CARS is an acronym for "Curve Advisory Reporting System." How do you think this came out? In re Rieker Instrument Company, Inc., Serial No. 86197455 (October 21, 2016) [not precedential].
Examining Attorney April E. Reeves submitted evidence that "cars" is a synonym for "automobiles." [duh! - ed.] Applicant's identification of goods indicates that its products are used with automobiles. She also submitted evidence showing that “cars” is used descriptively "in the context of curve speed determination, both to refer to the type of vehicles for which safe curve advisory speed may be determined and to the automobiles used to gather data used in calculations to determine safe curve speed." The evidence also showed that "cars" is used to describe automobile-related software generally.
Applicant contended that the refusal represents an oversimplification of its goods, which comprise "a complete, indivisible hardware and software unit" "used by sophisticated state and local governments to capture speed data, with the resulting data ultimately used to achieve speed advisory signage uniformity from state to state." The Board pointed out that the goods as identified in the application control its analysis, and in any event the USPTO's evidence showed use of the word "cars" in a descriptive manner in the field of applicant's data-capturing software and hardware.
Finally, applicant asserted that CARS is a double entendre whereby the "primary significance of the CARS mark is thus derived from the meaning and overall commercial impression engendered by the CARS mark as an acronym for 'Curve Advisory Reporting System.'" However, there was no evidence that consumers recognize that acronym, or that consumers would understand CARS to refer to anything other than automobiles.
In sum, "consumers would immediately understand CARS, when used in connection with Applicant’s identified goods and services, to describe key features of the software and hardware – that their purpose involves cars and that they are used in cars."
And so the Board affirmed the refusal to register.
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TTABlog note: Would the mark THE CARS be merely descriptive of a musical band if the band's recorded music is played in automobiles? Why not? WYHA?
Text Copyright John L. Welch 2016.