REALITY COMPOSER and REALITY CONVERTER Merely Descriptive of Augmented Reality Software, Says TTAB
Oppositions based on Section 2(e)(1) mere descriptiveness are somewhat rare. Here's a consolidated opposition in which the Board found the proposed marks REALITY COMPOSER and REALITY CONVERTER to be merely descriptive of Apple's downloadable software that converts files and assists in composing scenes in augmented reality. The Board relied on "the plain meaning of the words in connection with Applicant’s software products that have the functions and purposes of converting and composing" as sufficient to establish mere descriptiveness. ZeroDensity Yazilim Anonim Sirketi v. Apple Inc., Opposition Nos. 91266285 and 91266754 (December 22, 2023) [not precedential] (Opinion by Judge Karen S. Kuhlke).
Apple acknowledged the descriptive significance of the word REALITY in connection with its goods, and in fact disclaimed the word REALITY in the REALITY COMPOSER mark. Apple’s evidence and testimony "clearly shows that REALITY CONVERTER software is “an augmented reality-based content viewer tool for macOS for use by augmented reality (‘AR’) developers of all skill levels and experience and available for free via Apple’s developer website.”
Applicant argues that Opposer improperly dissected the proposed marks and the terms together are incongruous because they do not actually compose reality or convert reality. Well, that’s a relief, but not a persuasive argument. It is appropriate and often necessary to analyze each portion separately in considering the designation in its entirety.
The Board concluded that, in the context of the identified software, "the combination holds no distinct meaning of its own independent of the meaning of its constituent elements." Moreover, "[i]n the case of REALITY COMPOSER, REALITY is disclaimed, confirming it is not a unitary phrase, as Applicant essentially concedes."
And so, the Board sustained the oppositions.
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TTABlogger comment: Is this a WYHA? (Would you have applied for registration?)
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 12/28/2023
2 comments
2 Comments:
Yes. I would have filed. I have found that the “merely descriptive’ issue can be very subjective to examiners and even if they decide, you transfer to the Supp. Often the client has decided on the mark and wants to register or used the mark, so there may be no choice on whether you should file.
[Is this a WYHA? (Would you have applied for registration?)]
It got past the office, so the attorney wasn't any more wrong than the examiner. #examinerlottery
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