A2D Technologies, Inc.

Trademark Trial and Appeal Board

Oct 7, 2011

No. 77806767 (T.T.A.B. Oct. 7, 2011)

Mailed:
October 7, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re A2D Technologies, Inc.
________

Serial No. 77806767
_______

William P. Jensen of Crain, Caton & James, P.C. for A2D
Technologies, Inc.

John S. Yard, Trademark Examining Attorney, Law Office 115
(John Lincoski, Managing Attorney).
_______

Before Seeherman, Zervas and Shaw, Administrative Trademark
Judges.

Opinion by Seeherman, Administrative Trademark Judge:

A2D Technologies, Inc. has applied to register
SMARTRASTER, in standard characters, as a trademark for
“scientific research in the fields of oil and gas well log
data; compiling data for research purposes in the fields of
oil and gas well log data, geophysical exploration and well
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77806767
2
logging; providing on-line well log data in the field of
oil and gas well logging via a global computer network.”1
Applicant claimed, in its initial application papers, that
its mark is registrable pursuant to the provisions of
Section 2(f) of the Trademark Act. Applicant has also
claimed ownership of a Supplemental Registration, No.
2327393, for SMARTRASTER for “computer readable storage
media containing geological information relating to oil,
gas, minerals and the environment.”
The examining attorney issued a final refusal of
registration pursuant to Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1), on the ground that applicant’s
mark is merely descriptive of the identified services, and
that applicant has not demonstrated that its mark has
acquired distinctiveness, and therefore is not registrable
pursuant to Section 2(f).
Applicant has appealed this refusal.
Section 2(e)(1) prohibits the registration of a mark
which, when used in connection with the identified
services, is merely descriptive of them. Section 2(f)

1 Application Serial No. 77806767, filed August 18, 2009,
asserting first use and first use in commerce as early as
November 23, 1995. The application originally included goods in
Classes 9 and 16 as well; during the course of prosecution
applicant amended its application to delete these goods, and also
amended the identification of services in order to avoid the
refusal under Section 2(e)(1).
Ser No. 77806767
3
provides that a mark that would otherwise be prohibited
from registration by Section 2(e)(1) may be registered if
it has become distinctive of the applicant’s goods or
services in commerce.2
As a preliminary matter, we note that in its brief
applicant argued that its mark is not descriptive and “the
Examining Attorney failed to meet his burden to establish
descriptiveness,” brief, p. 5. However, because applicant
has sought registration under Section 2(f), and has not
made this claim in the alternative, it has admitted that
its mark is not inherently distinctive. In re Thomas
Nelson Inc., 97 USPQ2d 1712, 1713 (TTAB 2011) (If an
applicant initially seeks registration based on acquired
distinctiveness or amends its application to seek
registration based on acquired distinctiveness without
expressly reserving its right to argue that its mark is
inherently distinctive, [seeking] registration under
Section 2(f) is an admission that the mark is not
inherently distinctive). Accordingly, the question of

2 Specifically, Section 2(f) provides, inter alia, that “Except
as expressly excluded in subsections (a),(b), (c), (d), (e)(3),
and (e)(5) of this section, nothing herein shall prevent the
registration of a mark used by the applicant which has become
distinctive of the applicant’s goods in commerce.” Section 3 of
the Trademark Act provides that “Subject to the provisions
relating to the registration of trademarks, so far as they are
applicable, service marks shall be registrable, in the same
manner and with the same effect as are trademarks….”
Ser No. 77806767
4
whether the mark is inherently distinctive is not before
us, and it is applicant’s burden to demonstrate that its
mark has acquired distinctiveness, not the examining
attorney’s burden to show that the mark is merely
descriptive.
Further, the greater the degree of descriptiveness,
the greater the evidentiary burden on applicant to
establish acquired distinctiveness. See In re Bongrain
International Corp., 894 F.2d 1316, 1317 n.4, 13 USPQ2d
1727, 1728 n.4 (Fed. Cir. 1990); Yamaha Int’l Corp. v.
Hoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed.
Cir. 1988). Therefore, in order to assess the sufficiency
of applicant’s evidence of acquired distinctiveness, we
must first consider the evidence of the descriptiveness of
SMARTRASTER for the identified services.
The examining attorney has made of record dictionary
definitions for “smart” and “raster” which read, in
relevant part, as follows:
Smart: Informal. Equipped with, using, or
containing electronic control devices, as
computer systems, microprocessors, or missiles: a
smart phone; a smart copier.3
Raster: pattern of horizontal scanning lines:
the pattern of horizontal scanning lines made by
an electron beam on the surface of a cathode-ray

3 http://dictionary.infoplease.com, using definition taken from
Random House Unabridged Dictionary, © 1997.
Ser No. 77806767
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tube that create the image on a television or
computer screen.4

The examining attorney has also submitted evidence
that the terms “smart raster” and “smart raster technology”
are used in the field of geology and oil and gas
exploration. This evidence shows that smart rasters are
being used as a replacement for paper well logs:5
First proposed by Interpretive Imaging LLC, smart
rasters are raster images of well logs enhanced
with depth calibration information.
“Oil & Gas Journal,” December 16, 1996

*

‘Smart” raster logs can boost productivity of
geologists (headline)
…
Today, four years after its introduction [in
1995], smart raster technology is coming of age.
Large and small oil companies have
enthusiastically embraced the software and

4 http://encarta.msn.com, using definition from Encarta World
English Dictionary © 2009.
5 Some of the evidence submitted by the examining attorney use
the terms “raster” or “smart raster” in connection with bar code
scanners and other items/services that are either unrelated to
the identified services or for which we cannot ascertain the
goods or services. This includes the Google search summary
results that the examining attorney included with his denial of
applicant’s request for reconsideration. See TBMP § 1208.03 and
cases cited therein at Note 5 (“A search result summary from a
search engine, such as Yahoo! or Google, which shows use of a
phrase as key words by the search engine, is of limited probative
value” because “there may be insufficient text to show the
context within which a term is used”). We also have given no
weight to the excerpts from the website
http://thestatueofliberationthroughchrist.org. Although the
webpages include what appears to be a relevant statement, “Smart
raster well logs are used today in a wide variety of basins,”
there are so many apparently irrelevant and strange statements
included in the webpages that it raises questions about what has
been reported on the website.
Ser No. 77806767
6
converted tens of thousands of paper well logs
into smart raster format. …
In this article, E&P professionals from five
companies give their views to help readers better
understand the uses and benefits of smart raster
technology.
…
Smart raster benefits [subtitle]
…
Relative to paper, smart raster software is
faster. Relative to digital, raster well logs
are more cost-effective.

“Raster is faster, and cheaper,” says Wayne
Gibson, a geologist with Cross Timbers Oil Co. in
Fort Worth. “Rasterizing is a normal step toward
digitizing these days. Then depth calibration
turns a ‘dumb’ raster into a ‘smart’ raster.
That allows you to do almost everything you can
with a digital well log, but it costs a whole lot
less.
…
“Whether you’re interested in regional
exploration or field characterization, smart
raster technology is an inexpensive way to get
your logs computerized,”….
…
Smart raster well logs are used today in a wide
variety of basins, plays, and projects.
“Oil & Gas Journal,” April 10, 2000

*

Rasters Are Getting Smarter (headline)
…
Today, four years after its introduction, smart
raster technology is coming of age, as large and
small companies are embracing the software and
converting tens of thousands of paper well logs
into smart raster format.
“With ‘smart’ raster technology,” says one
geologist, “I correlated approximately 1,200
wells in two days. If I’d had to use hard-copy
logs, this would have been impossible.”
…
In 1995, things began to change. Denver-based
start-up company interpretive imaging released
Ser No. 77806767
7
the industry’s first “smart” raster well log
technology, combining a whole new data format,
along with log interpretation software.
…
Software developers such as GeoGraphix have
recently added rasters to their existing array of
digital formats. The latest smart raster
software also can handle digital LAS logs as
effectively as raster data.
Interpretive Imaging recently merged with A2D
Technologies [applicant], providing oil companies
with access to both smart raster and digital well
log information.
The industry’s raster data infrastructure is
maturing. Smart raster technology is rapidly
moving from the early adopters to the mainstream.
…
Smart raster well logs are used today in a wide
variety of basins, plays and projects….
Explorer, June 2000, www.aapg.org

*

‘Smart’ raster logs can boost productivity of
geologists [title]
The Oil and Gas Journal, April 10, 2000
AccessMyLibrary, www.accessmylibrary.com

*

Ontario Oil, Gas & Salt Resources Library
Service/User Fees
…
Digital Products and Services
…
Geophysical Logs
$15.00/smart raster (depth calibrated TIFF)
www.ogsrlibrary.com6

6 We recognize that this website is from a Canadian organization
and not an organization from the United States. However, given
the nature of the customers/users of applicant’s services, we
consider this material to have probative value. See TBMP
§ 1208.03 and cases cited therein at Note 4.

Ser No. 77806767
8
A term is merely descriptive if it forthwith conveys
an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the
goods or services. In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 217-18 (CCPA 1978). A term need not
immediately convey an idea of each and every specific
feature of the applicant’s goods or services in order to be
considered to be merely descriptive; rather, it is
sufficient that the term describes one significant
attribute, function or property of the goods or services.
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is
merely descriptive is determined not in the abstract, but
in relation to the goods or services for which registration
is sought, the context in which it is being used on or in
connection with the goods or services, and the possible
significance that the term would have to the average
purchaser of the goods or services because of the manner of
its use; that a term may have other meanings in different
contexts is not controlling. In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979).
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,
Ser No. 77806767
9
or the technology to produce such images. Further,
deleting the space between “smart” and “raster” to make the
compound term SMARTRASTER does not change the commercial
impression of the term; consumers will understand
SMARTRASTER to be the equivalent of “smart raster.” In
fact, as displayed in applicant’s specimen and other
literature, with “smart” shown in lower case and “raster”
in upper case, the composition of the mark as consisting of
the two words is emphasized. Thus, applicant’s mark is
highly descriptive of its services, as it immediately tells
consumers that a major characteristic of the imaging of the
data in its service of “compiling data for research
purposes in the fields of oil and gas well log data,
geophysical exploration and well logging” and its services
of “providing on-line well log data in the field of oil and
gas well logging via a global computer network” 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.
See In re Cryomedical Sciences Inc., 32 USPQ2d 1377, 1378
(TTAB 1994), in which the Board recognized, more than 15
years ago, that “[t]he ‘computer’ meaning of the term
‘smart,’ as is the case with many ‘computer’ words, is
making its way into the general language.” The fact that
Ser No. 77806767
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applicant has chosen to omit the specific words “smart” and
“raster” from its identification of services does not avoid
the fact that “smart rasters” are an integral element of
its services.
Because SMARTRASTER is highly descriptive of
applicant’s services, applicant has a concomitantly heavy
burden to show that the term has acquired distinctiveness
as applicant’s trademark. To show that its mark has
acquired distinctiveness, applicant stated, in its initial
application papers, that “the mark has become distinctive
of the goods/services through the applicant’s substantially
exclusive and continuous use in commerce for at least the
five years immediately before the date of this statement,”
i.e., for the five years prior to August 18, 2009.
Applicant has also asserted that use of its mark commenced
in November 1995. In addition, in its request for
reconsideration, applicant stated that it has attached
“statistics and soft copies of information regarding
SMARTRASTER.” We examine this evidence in turn.
Applicant states that Exhibit A contains “several
marketing flyers.” There is no information as to the
number of these flyers that were distributed to potential
customers, or how they were distributed.
Ser No. 77806767
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Applicant states that “the spreadsheet attached as
Exhibit B lists the web pages that contain Applicant’s
SMARTRASTER mark, the number of visitor by period to those
websites, and the two press releases that contained
Applicant’s SMARTRASTER mark.” Request for
reconsideration. What applicant has submitted are two
pieces of paper which list the urls of three different
websites, and under each url the number of “pageviews” by
month, showing pageviews for the year from February through
November 2010 for two of the websites, and pageviews from
December 2008 through November 2010 for a third website.
Pages from the websites themselves were not submitted, so
we cannot determine whether or how SMARTRASTER may have
appeared on the webpages that were viewed in order to
ascertain whether viewers actually saw the mark, or if they
did, what impact it might have had. Moreover, we consider
the number of pageviews to be rather limited. For one
website, the views were in single digits, except for 13
views in December 2008 and no views in June 2009, so that
for the entire period December 2008 through November 2010,
there were a total of 103 pageviews. The other websites
received more views—in the general range of 500-600 per
month for one, and in the range of 1000-1200 for another.
However, there is no information as to whether each
Ser No. 77806767
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pageview represents a different individual accessing the
page, such that there were thousands of individuals who
were exposed to applicant’s mark, or whether the number of
pageviews represents many of the same individuals accessing
the websites at different times, such that the number of
viewers was quite limited. In light of the services, which
involve data compilation and providing data which could be
updated on a regular basis, it is certainly possible that
the same persons regularly view the webpages.
As for the press releases that applicant has
referenced in the request for reconsideration, Exhibit B
lists only the title and date of the press releases.
Applicant has not submitted the press releases themselves,
so that we can ascertain the impact that its use of
SMARTRASTER may have had on readers. And, more
importantly, we have no information as to whether these
press releases were published in any journals or otherwise
viewed by customers.
Applicant states that Exhibit C is a March 2003
marketing email that was sent to 3,712 people. It appears
to be an attachment to an email since it is in the nature
of a single page flyer. The most prominent text is the
words “TAKE ADVANTAGE of BASIN WIDE DATA,” which appears at
the top of the page near a map of the United States, and
Ser No. 77806767
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the logo A2D appears separately, in large form, at the
bottom of the page. The term “smartRASTER” appears in two
places within the paragraphs of text, i.e., “A2D’s
smartRASTER Advantage Program provides instant, basin-wide
access to the largest online collection of depth calibrated
and intelligent raster logs in your area of interest”; and
“A smartRASTER Advantage commitment through A2D’s leading
LOG-LINE PLUS! data center meets the needs of both large
and small exploration programs.” Certainly applicant has
not used a “look for” format that would indicate that the
mark will stand out to consumers. At best, the depiction
of the two words in the combination of lower case and upper
case as smartRASTER may indicate to consumers that the term
is not merely the generic name for the images, but is meant
to be a trademark.
Applicant also states that a further email “marketing
Applicant’s SMARTRASTER mark, was sent to 3,863 people.”
Request for reconsideration, December 27, 2010. However,
applicant has not provided this email, or the date it was
distributed, nor do we know the manner in which the mark
was shown in it.
As we have previously stated, it is applicant’s burden
to demonstrate that its mark has acquired distinctiveness.
First, we must comment on the examining attorney’s point
Ser No. 77806767
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that applicant did not submit a declaration supporting its
claims of acquired distinctiveness, with the exception of
the statement of five years and continuous and exclusive
use that was part of its initial application. The other
statements about its use, and the characterization of the
exhibits were made by applicant’s attorney as part of the
request for reconsideration, and the exhibits were not
supported by a declaration. Although in many situations it
is preferable for an applicant to submit evidence of
acquired distinctiveness by a declaration, in this case
there is no reason to doubt that the exhibits are genuine
or that the statements made by applicant’s attorney
regarding the exhibits are inconsistent or not credible.
Therefore, we have given the exhibits and the accompanying
statements full probative value.
However, given the highly descriptive nature of
SMARTRASTER for the identified services, the evidence
submitted by applicant falls far short of establishing that
SMARTRASTER is perceived as applicant’s trademark, rather
than as the term used for the data that it compiles and
provides, i.e., the data that is the subject matter of its
services. In addition to the gaps about the information
about the pageviews, distribution of flyers, etc., as
discussed above, we also note that applicant has not
Ser No. 77806767
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provided any evidence about its advertising expenditures or
number of consumers.
We acknowledge that the manner in which applicant has
used SMARTRASTER in its flyer and email, i.e., with “smart”
in lower case and “RASTER” in upper case, is somewhat
unusual and, because of this depiction, consumers could
understand that applicant is using the term as a trademark.
To be clear, the evidence submitted by applicant is not
sufficient to show that even in this form the mark has
acquired distinctiveness. But in any event, applicant is
not seeking to register “smartRASTER” in the way it is
depicted in its materials. Rather, it has applied for the
mark as SMARTRASTER, in standard character format. While
USPTO policy, in general, allows the registration of a term
that is used in a combination of upper and lower case
letters to be registered in standard character format, in
this particular case, a registration issuing to applicant
in such format would allow applicant to use the mark as
SMARTRASTER, and certainly applicant has not demonstrated
that SMARTRASTER has acquired distinctiveness as a mark
identifying the source of applicant’s services.
Accordingly, because SMARTRASETER is merely
descriptive of applicant’s identified services, and because
applicant has not demonstrated that it has acquired
Ser No. 77806767
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distinctiveness as a mark and that it is entitled to
registration under Section 2(f) of the Trademark Act,
SMARTRASTER is prohibited from registration by Section
2(e)(1) of the Act.
Decision: The refusal of registration is affirmed.