Friday, December 10, 2010

Precedential No. 45: TTAB Finds "NANDRIVE" Generic for Electronic Integrated Circuits

In yet another genericness case, the Board affirmed a refusal to register the term NANDRIVE, finding it generic for "electronic integrated circuits." Alternatively, it found the term to be merely descriptive and lacking in acquired distinctiveness. In re Greenliant Systems, Ltd., 97 USPQ2d 1078 (TTAB 2010) [precedential].

Examining Attorney Kelley L. Wells relied on a number of Internet web pages and dictionary definitions in contending that "applicant’s electronic integrated circuits are memory storage devices which utilize NAND flash memory technology or are flash memory drives. The applicant’s goods are NAND drives."

The Board found the genus of the goods to be "electronic integrated circuits," and further that this genus encompasses solid state flash memory drives. "In other words, while the broad category of goods in the present case may be electronic integrated circuits, there is a narrower category of solid state flash drives within that broad category." Relevant precedent holds that "registration is properly refused if the subject matter for registration is generic of any one of the goods for which registration is sought."

The Board then found "clear evidence to support a finding that the relevant public, when it considers NANDRIVE in conjunction with electronic integrated circuits, readily understands that term as identifying a type of electronic integrated circuit, namely, a solid-state flash drive."

The Board found the combination, or "telescoping," of the terms "NAND" and "drive" to be immaterial because any purchaser would recognize the combination as meaning NAND drive.

Applicant Greenliant pointed out that 48 of 52 hits for NANDRIVE in an Internet search referred to its devices, as did all 132 Lexis/Nexis hits. The Board was not impressed.

First, as indicated above, because applicant may be the only user of the compound term NANDRIVE, its internet and Lexis/Nexis hits are going to be heavily skewed to articles referencing applicant. Second, it is not clear to us how consumers will perceive the term NANDRIVE as used in the articles. *** There is simply no evidence to support applicant’s claim that consumers will perceive NANDRIVE or NANDrive as a trademark or anything other than a generic term.

Turning to the Section 2(e)(1) refusal, and assuming arguendo that NANDRIVE is not generic, Applicant relied on the fact that it is the only user of the term (beginning its use in 2007). But the Board was again not impressed: "This evidence merely demonstrates that applicant is the only company that misspells the term NAND drive, not that the relevant consumers of such products have come to view the designation NANDRIVE as applicant’s source identifying trademark."

The Board found that, given the highly descriptive nature of NANDRIVE, Applicant's 2(f) evidence fell "far short" of establishing distinctiveness. "Notably, the record contains little direct or circumstantial evidence that the relevant classes of purchasers of applicant’s goods view NANDRIVE as a distinctive source indicator for applicant’s goods." Moreover, Greenliant did not submit any evidence regarding its sales, advertising, market share, or renown in the field.

And so the Board affirmed the alternative Section 2(e)(1) refusal.

TTABlog note: Compare and contrast this decision with the recent, precedential THUMBDRIVE decision, which should be stored in your portable memory. Please limit yourself to only one bluebook.

Text Copyright John L. Welch 2010.


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