Opinion
Patent Appeal No. 8721.
May 18, 1972.
Albert L. Ely, Jr., Cleveland, Ohio (Ely, Golrick Flynn), Cleveland, Ohio, attorneys of record, for appellant.
S. Wm. Cochran, Washington, D.C., for the Commissioner of Patents. Jere W. Sears, Washington, D.C., A.D. Hooks, of counsel.
Appeal from the Trademark Trial and Appeal Board.
Before RICH, ALMOND, BALDWIN, LANE, Judges, and CLARK, Justice (Ret.), United States Supreme Court, sitting by designation.
This is an appeal from the Trademark Trial and Appeal Board's decision sustaining the refusal of the examiner to register the mark SCANNER for antennas on the ground that the mark is merely descriptive of appellant's goods.
Abstracted at 163 USPQ 293 (1969).
The goods to which the mark is applied are described in appellant's application as "antennas." It is clear from the record that there are antennas which are known as "scanning antennas." The mark SCANNER, if applied to such antennas, would in our view be merely descriptive. While appellant contends that the specimen submitted with its application shows that the mark is not in fact applied to "scanning antennas," trademark cases must be decided on the basis of the identification of the goods as set forth in the application. In re Dirzius, 311 F.2d 825, 50 CCPA 836 (1963); Bristol-Myers Co. v. Pharmaco, Inc., 291 F.2d 756, 48 CCPA 1107 (1961); General Shoe Corp. v. Lerner Bros. Mfg. Co., 254 F.2d 154, 45 CCPA 872 (1958). Since the goods are described merely as "antennas" and that term is broad enough to encompass "scanning antennas," the mark SCANNER as applied to the goods is merely descriptive within the meaning of 15 U.S.C. § 1052(e) (1).
Both the examiner and the board pointed out that "SCANNING ANTENNA" is defined in J. Markus, Electronics and Nucleonics Dictionary 575 (3d ed. 1966) as "A directional antenna used in radar for scanning a region."
The board's decision is therefore affirmed.
Affirmed.