Alfa Laval Corporate AB

Trademark Trial and Appeal Board

Apr 9, 2013

No. 79092800 (T.T.A.B. Apr. 9, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
April 9, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Alfa Laval Corporate AB
_____

Serial No. 79092800
_____

Mark S. Sparschu, of Brooks Kushman, P.C. for Alfa Laval Corporate AB.
Ronald E. Aikens, Trademark Examining Attorney, Law Office 112 (Angela Wilson,
Managing Attorney).
_____

Before Zervas, Kuczma, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Alfa Laval Corporate AB (applicant) has appealed the final refusal to register
the mark LABPLATE for “chemical reactors, heat exchangers, industrial heating
and cooling apparatus with the exception of heating plates and heat exchanging
plates”1 pursuant to Section 2(e)(1) of the Trademark Act of 1946, 15 U.S.C.
§ 1052(e)(1), on the ground that applicant’s mark is merely descriptive.

1 Application Serial No. 79092800, filed December 27, 2010, pursuant to Section 66(a) of the
Trademark Act, seeking an extension of protection of International Reg. No. 1065765,
issued on December 27, 2010.

Serial No. 79092800

2

As a preliminary matter, the examining attorney has asked us to take
judicial notice of documents he has submitted with his appeal brief, which are: the
definition of “heat exchanger” from the Merriam-Webster Online Dictionary; and a
page from the DirectIndustry website (www.directindustry.com), which contains
“newly discovered usage in commerce of the terms “lab plate” and “laboratory
plate.”
The Board may take judicial notice of dictionary definitions, Univ. of Notre
Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist
in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d
1375, 1377 (TTAB 2006). Accordingly, we will take judicial notice of the definition
from the Merriam-Webster Online Dictionary.
However, we deny the request that we take judicial notice of the web page.
Although the Board will consider a request for remand in order to make of record
evidence that was not previously available, see TBMP § 1207.01, the Internet
evidence submitted by the examining attorney is not a proper subject for judicial
notice.2 In any event, consideration of this web page would not have affected the
outcome of this case.
Turning next to the substantive refusal, a term is deemed to be merely
descriptive of goods or services, within the meaning of Section 2(e)(1) of the

2 To support his request, the examining attorney relied on cases and rules relating to the
submission of evidence in inter partes proceedings. These cases and rules are inapposite,
as they involve making evidence of record during the course of a proceeding, not whether
the evidence is acceptable subject matter for judicial notice.
Serial No. 79092800

3

Trademark Act, 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).
On the other hand, a mark is suggestive if, when the goods or services are
encountered under the mark, a multistage reasoning process, or the utilization of
imagination, thought or perception, is required in order to determine what
attributes of the goods or services the mark indicates. See, e.g., In re Abcor
Development Corp, at 218 and In re Mayer-Beaton Corp., 223 USPQ 1347, 1349
(TTAB 1984).
The question here is whether the term LABPLATE, which is formed from the
combination of the words “lab” and “plate,” immediately conveys information as to
Serial No. 79092800

4

an ingredient, quality, characteristic, feature, function, purpose or use of applicant’s
goods.
While the refusal covers all of the goods in the application, the examining
attorney has restricted his arguments to one item of goods in the identification, heat
exchangers. The applicant’s arguments are not so restricted and apply to all of the
goods in the application. We too will not restrict our comments to any specific item
of goods. However, we note that, if a mark is descriptive of any of the goods for
which registration is sought, it is proper to refuse registration as to the entire class.
In re Analog Devices Inc., 6 USPQ2d 1808 (TTAB 1988), aff’d without pub. op., 871
F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989). As such, if we find the mark
LABPLATE to be merely descriptive of any single item of the identified goods, the
refusal will be affirmed with respect to all of the goods in this single-class
application.
The examining attorney has established that a “lab plate” is a specific type of
plate used primarily in the medical field. The following examples were submitted
with the April 5, 2011 Office action:

Biocision Thermo-conductive lab plate holder –“CoolSink
plate adaptors are thermo-conductive and provide rapid
and evenly distributed cooling or heating of a laboratory
plate
Serial No. 79092800

5

www.directindustry.com; and

Runlab - medical consumables: lab plates, plastic plates,
and weighing boats
www.ablibaba.com.

There is no evidence that applicant’s goods are used in the medical field.
Moreover, while the examining attorney has established that there are items used
in laboratories known as “lab hot plates” or “laboratory hot plates,” no evidence was
submitted to establish that “lab plates” and “lab hot plates” are the same thing or,
as asserted by the examining attorney, that “plate may be defined as a laboratory
hot plate.” Examining Attorney’s Brief, p. 9. To the contrary, the evidence shows
that laboratory or lab hot plates are devices with heating elements while lab plates,
which are depicted above, have no heating or cooling elements.
The following examples of lab hot plates were submitted with the Office
action dated November 7, 2011:

Lab Hot Plate –
“adopts closed heating style without naked fire; silicon
controlled stepless regulating for different heating
temperatures.” “Category: chemicals/laboratory heating
equipment.”
Serial No. 79092800

6

www.ablibaba.com;

DB-II Laboratory Heater/Laboratory hot plate –
“laboratory hot plate; stainless s, large capacity, uniform
heating, durable, ISO13485/14001/9001. SGS audited
factory.” “Category: chemicals/laboratory heating
equipment.”
www.ablibaba.com

The evidence shows that “[h]eat exchangers are basically those devices that
are built for the efficient heat transfer from one fluid to another” and that a plate
heat exchanger is a type of heat exchanger. Examining Attorney’s Brief, p. 11.
However, contrary to the examining attorney’s assertions, there is no evidence that
“plate is an abbreviation for plate heat exchangers.” Examining Attorney’s Brief, p.
13. Thus, we cannot agree with the examining attorney’s conclusion that the term
LABPLATE is “an apt description of heat exchangers used in laboratories.”
However, the mark was refused registration on the ground that it is merely
descriptive, not on the ground that it is generic. Because LABPLATE is a composite
mark, we examine the meaning of each component individually, and then determine
whether the mark as a whole is merely descriptive. See DuoProSS Meditech Corp.
v. Inviro Medical Devices Ltd., 695 F3d 1247, 103 USPQ2d 1753, 1758 (Fed. Cir.
2012).
Applicant’s identified “reactors” are described in applicant’s literature as
having heat exchanging plates:
Serial No. 79092800

7

“The LabPlate reactor consists of two plates which are
similar to the plates used in production scale plate
reactors. This gives the benefits of high heat transfer,
optimum mixing and the ability to be flexible in the
performance of the reaction … The plates are stacked in a
frame to give a wide operating range.”
Alfa Laval ART LabPlate brochure - Office action dated November 7, 2011, p. 15.
Further, applicant admits the descriptive nature of the term “plate” in connection
with heat exchangers in its brief, when it acknowledges “the individual plates that
make up a plate heat exchanger are clearly described as plates.” Appeal Brief, p. 5.
Accordingly, we find the word “PLATE” to be descriptive of a feature of applicant’s
goods.3
The brochure also indicates that the goods are used in laboratories (labs):
“The LabPlate is developed to enable users to have the
same condition in the laboratory as in the production
plant.”
“In a laboratory environment a system can easily be
assembled from available items.”
Alfa Laval ART LabPlate brochure - Office action dated November 7, 2011, p. 16.
As such, “LAB” is also descriptive of a feature or the goods, namely, that the goods
are for use in a laboratory or lab.

3 We note that, during the course of prosecution, applicant added the phrase “with the
exception of heating plates and with the exception of heat exchanging plates,” so that the
amended identification reads: “chemical reactors, heat exchangers, industrial heating and
cooling apparatus with the exception of heating plates and with the exception of heat
exchanging plates.” As written, the “exception” phrase applies only to “industrial heating
and cooling apparatus”; there is no such limitation with respect to the chemical reactors
and the heat exchangers.” Further, as discussed above, applicant’s literature shows that its
reactors include plates that are used for heat transfer.

Serial No. 79092800

8

Having determined that each component of the mark is merely descriptive,
we must now determine whether the composite mark as a whole is merely
descriptive. “The line between a mark that is merely descriptive and may not be
registered absent secondary meaning, and one that is suggestive and may be
registered, is that a suggestive mark “requires imagination, thought and perception
to reach a conclusion as to the nature of the goods,” while a merely descriptive mark
“forthwith conveys an immediate idea of the ingredients, qualities or characteristics
of the goods.” DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., at 1755.
When used in connection with applicant’s chemical reactors and heat exchangers,
the mark LABPLATE immediately conveys to consumers that said goods are for use
in labs and that components thereof are plates.
Accordingly we find the term LABPLATE to be merely descriptive of
applicant’s “chemical reactors, heat exchangers, industrial heating and cooling
apparatus with the exception of heating plates and heat exchanging plates.”
Decision: The refusal to register is affirmed.