Wednesday, November 02, 2011

WYHA? TTAB Finds SMARTRASTER Merely Descriptive of Oil and Gas Data Logging Services

This applicant hit a dry well in its attempt to register the mark SMARTRASTER for various oil and gas well data services. The Board found the mark to be not just merely descriptive, but "highly descriptive," of the services, and so it affirmed the Section 2(e)(1) refusal. Applicant claimed acquired distinctiveness under Section 2(f), but its evidence fell "far short." In light of the record, Would You Have Appealed? In re A2D Technologies, Inc., Serial No. 77806767 (October 7, 2011) [not precedential].

Examining Attorney John S. Yard relied on dictionary definitions of "smart" and "raster" and evidence that the terms "smart raster" and "smart raster technology" are used in the field of geology and oil and gas exploration. "The evidence submitted by the examining attorney shows that 'smart raster' is the term used for the display of 'calibrated' or enhanced well log data or well log images, or the technology to produce such images." Not surprisingly, the Board found that the deletion of the space between the two words has no effect on the meaning of term.

The Board concluded that SMARTRASTER is "highly descriptive" of Applicant's services because it "immediately tells consumers that a major characteristic of its imaging of the date in its [services] uses smart raster technology. That is, the mark describes the fact that applicant's SMARTRASTER services add more information and functionality to conventional well log raster images."

As to acquired distinctiveness, Applicant had a "heavy burden" in light of the highly descriptive nature of the mark. It claimed use of the mark since 1995 and provided statistics and other information regarding the mark, but the Board was not impressed. Applicant did not submit its advertising figures or information as to the number of customers. There were "gaps" in its evidence regarding website hits and distribution of flyers. The Board concluded that the evidence fell "far short" of satisfying Section 2(f).

And so the Board affirmed the refusal.

TTABlog note: Applicant tried to argue that its mark was inherently distinctive (now there's a stretch!), but the Board refused to hear the argument because Applicant, by claiming acquired distinctiveness, had waived that argument.

Text Copyright John L. Welch 2011.


At 7:51 PM, Anonymous Bill Finkelstein said...

The TTAB found the mark “highly descriptive.” Does that mean that it is foreclosing a 2(f) claim (i) now, or (ii) forever? Does that mean that it is foreclosing a Supplemental Registration? At one time, being “highly descriptive” (in addition to being generic) precluded a Supplemental Registration but I believe that it might not any longer. IMHO, it should.


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