Automated Systems of Tacoma, LLC

Trademark Trial and Appeal Board

Sep 18, 2018

No. 87373829 (T.T.A.B. Sep. 18, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 18, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Automated Systems of Tacoma, LLC
_____

Serial No. 87373829
_____

Michael J. Folise of Lowe Graham Jones PLLC for Automated Systems of Tacoma,
LLC.
Jason Malashevich, Trademark Examining Attorney, Law Office 114, Laurie
Kaufman, Managing Attorney.
_____

Before Ritchie, Shaw, and Lynch
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Automated Systems of Tacoma, LLC (“Applicant”) seeks registration on the
Principal Register of the mark VIEW (in standard characters) for goods identified as
“human machine interface systems comprised of computer hardware, electronic
display interfaces, and computer software for data collection and visualization of
Serial No. 87373829
- 2 -
electronic industrial product batch records and manufacturing recipes for industrial
equipment,” in International Class 9.1
The Trademark Examining Attorney has 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 is merely descriptive of the identified goods. The Examining
Attorney also refused registration under Sections 1 and 45 of the Trademark Act, 15
U.S.C. §§ 1051 and 1127, because the specimen of record fails to show use of the
applied-for mark on the goods. When the refusals were made final, Applicant
appealed and requested reconsideration. The Examining Attorney denied the request
for reconsideration and the appeal resumed. The case is fully briefed. We affirm in
part and reverse in part.
I. Mere Descriptiveness under Section 2(e)(1)
“A term is merely descriptive if it immediately conveys knowledge of a quality,
feature, function, or characteristic of the goods or services with which it is used.” In
re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012) (quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007)); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009-10 (Fed.
Cir. 1987). Whether a particular term is merely descriptive is determined in relation
to the goods for which registration is sought and the context in which the term is
used, not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588

1 Application Serial No. 87373829 was filed on March 16, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming January 11, 2017 as both the date of first use
and the date of first use in commerce.
Serial No. 87373829
- 3 -
F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224
(TTAB 2002).
The Examining Attorney argues that the term VIEW “merely describes a function
or purpose of Applicant’s human machine interface systems, namely, the
visualization of data.”2 In support of his position that the mark is merely descriptive
of the applied-for goods, the Examining Attorney submitted a dictionary definition
defining “view” as “to look at, examine, or inspect.”3 The Examining Attorney also
made of record excerpts from Internet web sites for various computer software
products showing that the term “view” is “frequently used in connection with software
and/or hardware for looking at or examining data of various kinds.”4 The following
examples are the most relevant.5
• A blog about a software program called “Minitab” that explains, “Did you
know that Minitab provides several tools you can use to view patterns in
data over time?”
• The “Help” section of the website for a software program called ArcGIS
explains, “a feature class in a geodatabase . . . will already be available for
use and listed in the Related Data menu that you can use to view related
data.”
• The “How to” section of the website for a software program called SkillsOne
instructs readers on how to use the program to “View User Log,” and also
explains, “Then click View your personalized site to see how the page will
appear to your clients,” “To view your current inventory of reports, click
View Inventory,” “to view details of a specific invoice, select the
corresponding Invoice link,” and additional sentences referencing view
functions and features.

2 Examining Attorney’s Br., p. 5, 6 TTABVUE 5.
3 American Heritage Dictionary, https://ahdictionary.com, Office Action of June 13, 2017,
pp. 2-5.
4 Examining Attorney’s Br., p. 6, 6 TTABVUE 6.
5 Office Action of September 19, 2017, pp. 2-39, emphasis added.
Serial No. 87373829
- 4 -
• The website Automated Results discusses a real-time data historian
application that “allows manufacturing sites to view data real-time as well
as easily look back at date from years ago.”
• The website Control Engineering discusses HMI software programs and
explains, “Although all HMIs provide multiple ways to view current
machine operating data, it’s often necessary to view historical machine
operation data as it provide a number of benefits…”
• The website PLEX advertises quality management software that enables
the user to “view and execute control plan instructions and checksheets
directly from the Control Panel and other interfaces” and “View data with
on-screen charts such as histogram, average and range, run chart and
individuals chart.”
• The Halliburton website which explains, in discussing an Engineers Data
Model program, that the program enables users to “use standard or custom
display unit sets to enter and view data in the preferred format.”
• Jenmar International’s website discusses a software analytics engine that
enables users to “view sales or production data over each day, week, month,
quarter, year or any combination” and to “view data by department,
product group or even analyze individual products”
• Zontec’s website touts the benefits of software programs and web
applications that enable users to “view their SPC data in real-time before
their materials are shipped.”
Applicant argues that its mark “does not describe the goods directly, but requires
people to stop and think about what in fact the view is and certainly requires analysis
of the mark, only after which are Applicant’s goods suggested.”6
This argument is unpersuasive. Descriptiveness is not considered in the abstract.
In re Bayer, 82 USPQ2d at 1831. The question is whether someone who knows what
the goods are will understand the term to convey information about them. DuoProSS
Meditech Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757

6 Applicant’s Br., pp. 6-7, 4 TTABVUE 7-8.
Serial No. 87373829
- 5 -
(Fed. Cir. 2012). Contrary to Applicant’s arguments, as shown by the examples of the
third-party use of the term “view” in connection with software, we find that the
proposed mark immediately informs prospective purchasers of the nature of
Applicant’s goods, namely, “human machine interface systems . . . for data collection
and visualization” without any multistage reasoning process.
Applicant’s product brochures further establish that a major feature or function
of Applicant’s goods is to visualize or “view” data related to “industrial product batch
records and manufacturing recipes for industrial equipment.” For example, one page
from Applicant’s product brochures, below, explains how to “configure the view to
display records” based on user-defined event parameters:
7
Another page, below, explains how to use “one of several viewers available on
ASTView” to “view” different reports available to the user. The descriptive uses of the

7 Applicant’s response to Office Action, filed August 4, 2017, p. 12.
Serial No. 87373829
- 6 -
terms “viewer” and “viewing” establish that the purpose of the software is to view
data.
8

8 Id. at 30.
Serial No. 87373829
- 7 -
Based on the evidence of record, we find that the proposed mark VIEW is merely
descriptive of Applicant’s goods. VIEW immediately informs consumers that
Applicant’s goods may be used to view data submitted to and produced by industrial
equipment. Applicant’s identification of goods indicates that the purpose of the goods
is, in part, for “visualization” of data. The term VIEW must remain available for
competitors to use in describing similar features or functions of software. See In re
Abcor Dev., 200 USPQ at 217 (“The major reasons for not protecting [merely
descriptive] marks are . . . to maintain freedom of the public to use the language
involved, thus avoiding the possibility of harassing infringement suits by the
registrant against others who use the mark when advertising or describing their own
products.”).
For the reasons discussed, we conclude that when used on or in connection with
Applicant’s identified goods the proposed mark, VIEW, merely describes Applicant’s
human machine interface systems.
II. Specimen Refusal
We turn now to the specimen refusal. Applicant filed the specimen below,
described as a screenshot from its software. The mark appears in the lower left corner
of the screenshot. The image includes a visual representation of the industrial
equipment being utilized, in this case an “Aseptic Filling System,” a number of menus
across the top of the screen, and several windows showing the status of the industrial
process being performed.
Serial No. 87373829
- 8 -
9
The Examining Attorney concedes that the specimen “would suffice as a splash
screen showing use of the mark in commerce”10 for software, but nevertheless argues
that under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051 and 1127, the
specimen is unacceptable because it does not show use of the mark on each element
of Applicant’s system:
[I]s not sufficient to show use of that mark in commerce in
connection with a unitary system comprised of computer
hardware, electronic display interfaces, and computer
software. A majority of the primary components of
Applicant’s system, specifically two-thirds, are not
accounted for in the specimen of record. As a result, the
specimen of record fails to show use of the applied-for mark

9 Application Serial No. 87373829, application of March 16, 2017, p. 3; Response to Office
Action of August 4, 2017, p. 8.
10 Examining Attorney’s Br., p. 12, 6 TTABVUE 12.
Serial No. 87373829
- 9 -
in commerce in connection with the specific goods
identified in the Application, as amended.11
Applicant counters that “the 23 pages of product information provided to the
Examining Attorney show multiple screen shots using the mark in association with
all aspects of the system including hardware and software.”12 Applicant’s product
information brochure explains in the “Hardware and Software Specifications” section
that the hardware portion of the system uses an HMI (human machine interface)
panel:
13
In addition, the product information brochure explains that Applicant’s “human
machine interface” system works with a programmable logic controller (PLC), and
may also be used with an external data server:

11 Id.
12 Applicant’s Br., p. 10, 4 TTABVUE 10.
13 Response to Office Action of August 4, 2017, p. 16.
Serial No. 87373829
- 10 -
14
The brochures further explain that additional hardware can be added by
Applicant depending on a customer’s needs: “Optionally, an ASTView Data Server
may be added to the system to make it a fully turn-key solution. The ASTView Data
Server will come fully configured, UPS [Uninterruptible Power Supply] protected and
with RAID [Redundant Array of Independent Disks] redundancy.15
“Both precedent and examination guidance make clear that in assessing the
specimens, consideration must be given not only to the information provided by the
specimen itself, but also to any explanations offered by Applicant clarifying the
nature, content, or context of use of the specimen that are consistent with what the

14 Id. at 20.
15 Id. at 22.
Serial No. 87373829
- 11 -
specimen itself shows.” In re Pitney Bowes, Inc., 125 USPQ2d 1417, 1420 (TTAB
2018).
For a trademark application under Section 1(a) of the Trademark Act, the
Applicant must include one specimen for each class, showing use of the mark in
commerce on or in connection with the goods. 15 U.S.C. § 1051(a)(1); 37 C.F.R.
§§ 2.34(a)(1)(iv) and 2.56(a). A trademark specimen should be a label, tag, or
container for the goods, or a display associated with the goods. 37 C.F.R. § 2.56(b)(1).
Given the complexity of Applicant’s goods and the need to design different systems
for different customers and applications, it is impractical for Applicant to label each
element of its systems, particularly to the extent that they may use third-party
hardware. Cf. TMEP § 904.03(e) (Oct. 2017) (describing how acceptable specimens for
computer programs take account of the industry practice of marks being “visible only
when the goods… are displayed on a screen”). Accordingly, we find the use of the
mark on the primary element of the system, the software on the human machine
interface, suffices to show use of the mark in commerce for the identified goods.
Decision: The refusal to register Applicant’s mark VIEW under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), is affirmed. The refusal to accept
Applicant’s specimen on the basis of Sections 1 and 45 of the Trademark Act, 15
U.S.C. §§ 1051 and 1127, is reversed.