4-Tell, Inc.

Trademark Trial and Appeal Board

Feb 28, 2020

87707505 (T.T.A.B. Feb. 28, 2020)

Mailed: February 28, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re 4-Tell, Inc.
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Serial No. 87707505
_____

Joseph S. Makuch of Intersect IP,
for 4-Tell, Inc.
Sarah E. Kunkleman, Trademark Examining Attorney, Law Office 105,
Jennifer L. Williston, Managing Attorney.
_____

Before Wellington, Greenbaum, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
4-Tell, Inc. (“Applicant”) seeks registration on the Principal Register of the
standard character mark SMART COMMERCE for “Software as a service (SAAS)
services featuring software for collecting data, processing data, analyzing data,
generating data, and displaying data” in International Class 42.1

1 Application Serial No. 87707505, filed on December 4, 2017, based on an allegation of a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 87707505
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that
Applicant’s mark, in its entirety, is merely descriptive of the services identified in its
application.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. The appeal is fully briefed. We affirm the
refusal to register.2
I. Mere Descriptiveness – Applicable Law
A mark is merely descriptive of goods or services within the meaning of Section
2(e)(1) of the Trademark Act if it conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the goods or services. In re
Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir.
2012); see also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether
a mark is merely descriptive is determined in relation to the goods or services for
which registration is sought and the context in which the mark is used, not in the
abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200
USPQ2d 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002).
In other words, we evaluate whether someone who knows what the goods or services
are will understand the mark to convey information about them. DuoProSS Meditech

2 All TTABVUE and Trademark Status & Document Retrieval (“TSDR”) citations reference
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
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Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir.
2012). A mark need not immediately convey an idea of each and every specific feature
of the goods or services in order to be considered merely descriptive; it is enough if it
describes one significant attribute, function or property of the goods or services. See
In re Gyulay, 3 USPQ2d at 1010; In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB
1982); In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973).
When two or more merely descriptive terms are combined, the determination of
whether the combined mark is also merely descriptive turns on whether the
combination of terms evokes a non-descriptive commercial impression. If each
component retains its merely descriptive significance in relation to the goods or
services, the combination results in a composite that is itself merely descriptive. In
re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004)
(quoting Estate of P.D. Beckwith, Inc. v. Commr., 252 U.S. 538, 543 (1920)); see also
In re Tower Tech, Inc., 64 USPQ2d 1314, 1318 (TTAB 2002) (SMARTTOWER merely
descriptive of commercial and industrial cooling towers); In re Sun Microsystems Inc.,
59 USPQ2d 1084, 1087 (TTAB 2001) (AGENTBEANS merely descriptive of computer
programs for use in developing and deploying application programs).
On the other hand, a mark comprising a combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
non-descriptive meaning, or if the composite has an incongruous meaning as applied
to the goods or services. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382
(CCPA 1968) (SUGAR & SPICE for “bakery products”); In re Shutts, 217 USPQ 363,
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365 (TTAB 1983) (SNO-RAKE for “a snow removal hand tool having a handle with a
snow-removing head at one end, the head being of solid uninterrupted construction
without prongs”). In this regard, “incongruity is one of the accepted guideposts in the
evolved set of legal principles for discriminating the suggestive from the descriptive
mark.” Shutts, 217 USPQ at 365; see also In re Tennis in the Round, Inc., 199 USPQ
496, 498 (TTAB 1978) (the association of applicant's mark TENNIS IN THE ROUND
with the phrase “theater-in-the-round” creates an incongruity because applicant’s
services do not involve a tennis court in the middle of an auditorium). Thus, we must
consider the issue of descriptiveness by looking at Applicant’s mark in its entirety.
In determining how the relevant consuming public perceives Applicant’s mark in
connection with its identified services, we may consider any competent source,
including websites and webpages, newspaper articles and publications, and
Applicant’s own advertising material and explanatory text. See In re N.C. Lottery,
866 F.3d 1363, 123 USPQ2d 1707, 1709-10 (Fed. Cir. 2017); In re Nett Designs, Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (citing In re Bed & Breakfast
Registry, 791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir. 1986)); Trademark Manual of
Examining Procedure (TMEP) §1209.01(b) (October 2018).
II. Examining Attorney’s Arguments and Evidence
In support of her Section 2(e)(1) refusal, the Examining Attorney relies upon the
dictionary definitions of record of the constituent elements of Applicant’s mark, i.e.,
“smart” and “commerce.” “Smart” is defined as “operating my automation” and “using
a built-in microprocessor for automatic operation, for the processing of date, or for
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achieving greater versatility.”3 “Commerce” is defined as “the activity of buying and
selling goods and services.”4
Additionally, the Examining Attorney relies on Applicant’s responses to an
information request under Trademark Rule 2.61(b), 37 C.F.R. §2.61(b). The questions
posed by the Examining Attorney and Applicant’s corresponding answers are
reproduced below:5
• Question 1: Will applicant's services feature software for use with
smart technology? If so, please explain.
o Answer: To the extent that "smart technology" is defined as
"operating by automation", yes, the software uses automation
throughout much of its operation.

• Question 2: Will applicant's services feature software that has
smart technology capabilities? If so, please explain.
o Answer: To the extent that "smart technology" is defined as
"operating by automation", yes, the software has smart
technology capabilities.

• Question 3: Will applicant's services feature software that has
automated or machine learning technology capabilities? If so, please
explain.
o Answer: Yes, Applicant's software uses automation generally,
and uses machine learning in the block labeled
Recommendations in Attachment 13.

• Question 4: Do applicant’s competitors use SMART to advertise
similar goods and/or services?
o Answer: No, Applicant is not aware of any competitors who
use SMART to advertise similar services.

• Question 5: Do applicant’s competitors use COMMERCE to
advertise similar goods and/or services?

3 April 11, 2019 Request for Reconsideration, TSDR p. 36 (www.merriam-webster.com).
4 October 11, 2018 Office Action, TSDR p. 11 (www.macmillandictionary.com).
5 March 16, 2018 Office Action, TSDR pp. 3-4; September 16, 2018 Response to Office Action,
TSDR p. 8.
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o Answer: Applicant is not aware of any competitors who use
COMMERCE as a trademark or service mark to advertise
similar services.

• Question 6: Who is the typical consumer of applicant’s services?
o Answer: The typical consumer of Applicant’s services is
online and omnichannel (online and physical store)
merchants.

• Question 7: Will applicant’s services feature software for use in
connection with commerce or commercial transactions? If so, please
explain.
o Answer: Applicant’s software services are used “in connection
with” commerce or commercial transactions to the extent that
they provide assistance to merchants who sell goods, but
Applicant’s services do no [sic] process any commercial
transactions.

• Question 8: Does the wording “SMART COMMERCE” have any
meaning or is it a term-of-art in applicant’s industry? If so, please
explain.
o Answer: No, Applicant is not aware of any known meaning of
“SMART COMMERCE” and it is not aware of “SMART
COMMERCE” being a term-of-art in Applicant’s industry.

The Examining Attorney also cites to several Board decisions wherein the Board
held the term “smart” merely descriptive of products and services that employ
automated technology.6 See In re Cannon Safe, Inc., 116 USPQ2d 1348, 1350 (TTAB
2015) (holding SMART SERIES merely descriptive of metal safes specifically
designed to store firearms); In re Cryomedical Scis. Inc., 32 USPQ2d 1377, 1378
(TTAB 1994) (holding SMARTPROBE merely descriptive of disposable cryosurgical
probes); In re Tower Tech, Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002) (holding

6 March 16, 2018 Office Action, TSDR p. 3.
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SMARTTOWER merely descriptive of commercial and industrial cooling towers and
accessories therefor, sold as a unit).
The Examining Attorney also submitted Internet evidence comprised of
screenshots from various third-party websites where the individual terms “smart”
and “commerce” are used in connection with software that feature automated
technology.7 A representative sample is provided below:
• www.zenrobotics.com

• www.atlassian.com

7 Id., TSDR pp. 6-28.
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• www.silabs.com

• www.sap.com

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• www.truecommerce.com

• www.pitneybowes.com

Additionally, the Examining Attorney submitted Internet evidence comprised of
screenshots from various third-party websites that employ the phrase “smart
commerce,” in its entirety, for services that, inter alia, utilize data mining, collection,
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analytics and display for commercial activities similar to those identified in
Applicant’s involved application.8 The evidence is summarized below:
• www.cybage.com: using “SMART COMMERCE” in connection with
business intelligence and smart personalization and notification
solutions for customer loyalty and retention.

• www.geniusto.com: using “SMART COMMERCE” in connection with
software for marketing and customer experience and integration
with e-commerce software.

• www.siliconvalley.center: using “SMART COMMERCE” in
connection with personalized shopping pages for “customer’s
demands considering historic data and brand preferences” and
functionality that gathers data that allows retailers to “analyze and
predict customer behavior.”

• www.webspherecommerceguru.com: showing “SMART
COMMERCE” analytics suite software.

• www.aconf.org: reviewing a “Smart Commerce” workshop with
discussions on Big Data and Big Data analytics.

• www.kogifi.com: stating “Smart commerce combines digital and e-
commerce marketing platforms with AI, VR/AR and IoT to deliver a
seamless commerce experience for customers across all platforms
while collecting important data, insights, and facts about customer
behavior along the way.”

• www.natwebsolutions.com: stating “In Smart commerce, artificial
intelligence algorithms are used, which are able to quickly capture
connections and present the most important conclusions from the
behavior of visitors.”

• www.ok.commercetools.com: book with information on “how smart
commerce works” related to APIs for commerce and digital
commerce.

• www.devpost.com: discussing “smart commerce” in connection with
autonomous functions of software.

8 October 11, 2018 Office Action, TSDR pp. 13-37; May 1, 2019 Denial of Request for
Reconsideration, 5 TTABVUE 10-24
Serial No. 87707505
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• www.idemia.com: discussing “a click & collect tool (a smart
commerce system that also enables staff to provide a better level of
customer experience), enabling users to order from a mobile app and
pick up goods in the store.”

• www.ness.com: solutions for “Smart Commerce” that include data
analytics for increased sales and personalized shopping experiences.

• www.silvertouchinc.com: offering solutions featuring “Smart
Commerce: Personalized offers and options which are sourced by
data mining and analytics capabilities.”

• www.tridonic.com: using “Smart commerce” in connection with
applications that “provide retailers with invaluable data on customer
behaviour and preferences.”

• www.verifone.com: describing “SMART COMMERCE” retail
solution software that provides “Reporting & Analytics.”

Finally, the Examining Attorney references Applicant’s own website that
demonstrates that Applicant provides software with a commerce or e-commerce
application. Applicant’s website describes its software as “Commerce CRM.”9 The
Examining Attorney further maintains that Applicant’s website shows that
Applicant’s software is used in a business’s commercial activities such as making

9 In her denial of Applicant’s Request for Reconsideration, the Examining Attorney objected
to a Wikipedia article submitted by Applicant that purportedly defines the phrase “Commerce
CRM” as “customer relationship management” because it does not include the date upon
which this article was downloaded or accessed. 5 TTABVUE 4.
To properly introduce Internet evidence into the record, an applicant must provide (1) an
image file or printout of the downloaded webpage, (2) the date the evidence was downloaded
or accessed, and (3) the complete URL address of the webpage. See In re I-Coat Co., LLC, 126
USPQ2d 1730, 1733 (TTAB 2018); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) §1208.03 (2019); see also TMEP §710.01(b). A review of the Wikipedia
submission demonstrates that this evidence neither includes the URL address of the webpage
nor the date the article was accessed or downloaded. Accordingly, the Examining Attorney’s
objection is sustained and we have given no consideration to this evidence in our
determination herein, particularly because Applicant neither cured the defect under
applicable Board rules nor did Applicant address this evidence in its appeal brief.
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product recommendations and providing shopper data to make personalized customer
experiences to customers engaged in e-commerce and shopping. A representative
sample of screenshots of Applicant’s website are reproduced below:10

10 September 16, 2018 Response to Office Action, TSDR pp. 12-98.
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The Examining Attorney argues that all of the foregoing evidence demonstrates
that the plain meaning of the wording “smart commerce,” in the context of Applicant’s
identified services, references exactly what the relevant consumer would understand
it to mean, i.e., computer software services that employ “smart” or automated
technology to assist the relevant consumer with its business commerce needs. As
such, the Examining Attorney concludes that Applicant’s mark, in its entirety, is
merely descriptive of the identified services.
III. Applicant’s Arguments and Evidence
In traversing the refusal, Applicant maintains that its software collects data from
a merchant’s ecommerce platform and processes the collected data to generate and
display reports, recommendations, and other outputs that enable the merchant to
make better decisions and provide personalized information to shoppers.11 Applicant
further contends that its software does not process sales transactions made by its
merchant clientele.12
Applicant argues that the term “smart” has multiple dictionary meanings
including some meanings such as “mentally alert,” “bright,” and “knowledgeable,”
which would impart a laudatory meaning to its purported unitary mark and,
therefore, would render the mark non-descriptive of its identified services.13This fact,
however, is not determinative of whether Applicant’s composite mark is merely
descriptive of Applicant’s identified services. In re Franklin Cnty. Historical Soc’y,

11 September 16, 2018 Response to Office Action, TSDR p. 7.
12 Id.
13 Applicant’s Appeal Brief, pp. 3-4, 8 TTABVUE 4-5.
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104 USPQ2d 1085, 1087 (TTAB 2012) (citing In re Bright-Crest, Ltd., 204 USPQ 591,
593 (TTAB 1979)); TMEP § 1209.03(e). “It is well settled that so long as any one of
the meanings of a term is descriptive, the term may be considered to be merely
descriptive.” In re Mueller Sports Med., Inc., 126 USPQ2d 1584, 1590 (TTAB 2018)
(quoting In re Chopper Indus., 222 USPQ 258, 259 (TTAB 1984)). Here, Applicant has
conceded that its software has “smart” or automated technology.14 Accordingly, it is
this definition of the term “smart” upon which we base our analysis.
Applicant’s argument that the purported laudatory nature of Applicant’s mark
obviates a descriptiveness refusal is also unpersuasive. Laudatory terms, those that
attribute quality or excellence to goods or services, generally are deemed to be merely
descriptive under Trademark Act Section 2(e)(1). See In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564 (Fed. Cir. 2001) (THE ULTIMATE BIKE RACK is “a
laudatory descriptive phrase that touts the superiority of Nett Designs' bike racks”);
In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999) (THE
BEST BEER IN AMERICA for “beer and ale” found to be laudatory and incapable of
distinguishing source); see also In re Place, Inc., 76 USPQ2d 1467, 1468-69 (TTAB
2005) (“the courts of appeal and this Board have held that other marks which
arguably denote ‘high quality,’ ‘excellence’ and ‘superior quality’ are laudatory and
thus merely descriptive”). Thus, the laudatory meaning put forth by Applicant does
not transform the descriptive nature of the wording into something more than the
descriptive parts or into a mark with a unique, incongruous, or otherwise

14 September 16, 2018 Response to Office Action, TSDR p. 8.
Serial No. 87707505
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nondescriptive meaning in relation to the identified services.
Applicant also maintains that the wording “smart commerce” has no recognized
meaning.15 The fact that a word or term is not found in the dictionary is not
controlling on the question of registrability when the word or term has a well
understood and recognized meaning. In re Orleans Wines, Ltd., 196 USPQ 516, 517
(TTAB 1977); TMEP §1209.03(b); see also In re Gould Paper Corp., 834 F.2d 1017,
1018, 5 USPQ2d 1110, 1111-12 (Fed. Cir. 1987); In re Planalytics, Inc., 70 USPQ2d
1453, 1456 (TTAB 2004); In re Tower Tech Inc., 64 USPQ2d 1314 (TTAB 2002). In
any event, the evidence of record belies Applicant’s argument. Although the third-
party evidence submitted by the Examining Attorney shows that the services
provided by these third parties may not necessarily be identical to those provided by
Applicant, the evidence nonetheless demonstrates that third parties commonly use
the phrase “smart commerce” for computer software products that employ automated
technology to provide relevant consumers, i.e., merchants, with the ability the
improve on their commerce-related activities and needs.
Applicant further argues that its applied-for SMART COMMERCE mark is “an
ephemeral concept,” and at most suggests that the services will somehow improve
commerce without providing any particularity.16 Applicant also contends that
potential purchasers are likely to have various ideas on what ‘smart’ means and how

15 Id. at p 9, 8 TTABVUE 10.
16 Id. at p. 4, 8 TTABVUE 5.
Serial No. 87707505
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it relates to ‘commerce.’17 In other words, Applicant asserts that the wording SMART
COMMERCE constitutes an aspirational goal—it conveys a desirable characteristic
of the software without describing it.18
We disagree. As previously noted, determining the descriptiveness of a mark is
done in relation to an applicant’s goods or services, the context in which the mark is
being used, and the possible significance the mark would have to the average
purchaser because of the manner of its use or intended use. See The Chamber of
Commerce 102 USPQ2d at 1219 (citing In re Bayer Aktiengesellschaft, 488 F.3d 960,
963-64, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); TMEP §1209.01(b). Descriptiveness
of a mark is not considered in the abstract. In re Bayer Aktiengesellschaft, 82 USPQ2d
at 1831. As mentioned, Applicant has conceded that its software has “smart”
technology capabilities.19 Moreover, Applicant’s own website states that this smart
technology software includes algorithms that expose “critical customer and product
insights to build predictive recommendations” for the relevant customer’s
consumers.20 Additionally, Applicant’s website states that its smart technology not
only “empowers merchants to build meaningful customer relationships and increase
revenue by providing a Smart Commerce Platform … that enables the delivery and
optimization of powerful customer shopping experiences, in-store and online” but also

17 Id., 8 TTABVUE 5.
18 Id., 8 TTABVUE 5.
19 September 16, 2018 Response to Office Action, TSDR p. 8.
20 Id. p. 16.
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that such technology “is revolutionizing the future of commerce.”21 Accordingly, when
the relevant consuming public views Applicant’s SMART COMMERCE mark in
relation to the services Applicant actually provides, such consumer would not go
through mental steps or exercise some degree of imagination to understand the
relationship between Applicant’s mark and the services offered under the mark.
Instead, such consumer would clearly ascertain the meaning of SMART COMMERCE
in relation to Applicant’s identified services.
Applicant also relies on three nonprecedential Board decisions for the proposition
that marks that contain the term “smart” may not necessarily be found merely
descriptive of the identified goods or services. The nonprecedential decisions, all of
which are at least 12 years old, are identified below:
• In re Brunswick Corporation, Serial No. 78841309 (TTAB February
27, 2008) (SMART TOW suggestive rather than merely descriptive
of "watercraft speed control systems” because even though the terms
“smart” and “tow” were each descriptive of something, the combined
term SMART TOW as a whole was not merely descriptive:
“Applicant’s goods are not tows fitted with a microprocessor.”);

• In re Somnus Medical Technologies, Inc., Serial No. 75673724 (TTAB
July 19, 2001) (Even though “smart” is descriptive of automated
device and “RF” is descriptive of radio frequency, SMART RF was not
merely descriptive of RF electrosurgical generators: “applicant’s
mark is SMART RF not SMART DEVICE, and applicant’s goods are
medical devices not radio frequencies; it is unclear how a radio
frequency can be ‘smart’ or imbued with ‘smart’ capabilities.” at page
5.);

• In re PointCast Incorporated, Serial No. 75022018 (TTAB August 24,
1999) (SMARTSCREEN not merely descriptive of screen saver
programs: “Applicant’s goods are not computer screens. Rather,
applicant’s goods are computer software programs which are screen

21 Id. TSDR pp. 12 and 14.
Serial No. 87707505
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saver programs …. applicant did not apply for the mark
SMARTSCREENSAVER for its goods….”).

We initially note that that decisions designated as nonprecedential are not
binding upon the Board but may be cited and considered for whatever persuasive
value they might have. In re Soc’y of Health & Physical Educators, 127 USPQ2d 1584,
1587 n.7 (TTAB 2018); TBMP §§101.03, 1203.02(f); TMEP §705.05. Nevertheless, it
is well settled that each case must be decided on its own facts and the Board is not
bound by prior decisions involving different records. See In re Nett Designs, Inc., 57
USPQ2d at 1566; In re Datapipe, Inc., 111 USPQ2d 1330, 1336 (TTAB 2014); TMEP
§1209.03(a). The question of whether a mark is merely descriptive is determined
based on the evidence of record at the time each registration is sought. In re theDot
Commc’ns Network LLC, 101 USPQ2d 1062, 1064 (TTAB 2011); TMEP §1209.03(a);
see also In re Nett Designs, Inc., 57 USPQ2d at 1566. Accordingly, Applicant's reliance
on the three nonprecedential decisions is of no moment. None of the proceedings
involved Applicant and different marks and goods were at issue in those cases.
Moreover, unlike the nonprecedential decisions relied upon by Applicant, the
evidentiary record in this case demonstrates that third-parties commonly use the
phrase “smart commerce” in relation to goods and services that rely on automated
functionality for data and data and data analysis, collection, processing, and display
for commerce-related activities.
IV. Conclusion
We have considered all arguments and evidence of record, including any not
specifically discussed. Based on the evidence of record, we conclude that the
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designation SMART COMMERCE is merely descriptive of Applicant’s identified
services since the mark merely describes the function or purpose of Applicant’s
identified services, namely, software with automated functionality that provides
relevant consumers with the means to improve their business commerce needs by
collecting data from a merchant’s e-commerce platform and processing the collected
data to generate and display reports, recommendations, and other outputs that
enable the merchant to make better decisions and provide personalized information
to shoppers. We further find that the combination of the descriptive terms “smart”
and “commerce” does not create a non-descriptive or incongruous meaning. Instead,
we find that each component retains its merely descriptive significance in relation to
Applicant’s identified services, the combination of which results in a composite mark
that is itself merely descriptive.
Decision: The refusal to register Applicant’s SMART COMMERCE mark on the
Principal Register under Section 2(e)(1) of the Trademark Act on the ground that the
designation, in its entirety, is merely descriptive of Applicant’s identified services is
affirmed.