Bio-Rad QL, Inc.

Trademark Trial and Appeal Board

May 17, 2013

No. 77944233 (T.T.A.B. May. 17, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: May 17, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Bio-Rad QL, Inc.
_____

Serial Nos. 77944233 and 85154873
_____

James R. Abney and David P. Cooper of Kolisch Hartwell PC for Bio-Rad QL, Inc.

Patty Evanko, Trademark Examining Attorney, Law Office 117 (J. Brett Golden,
Managing Attorney) for Serial No. 77944233.

Ellen Awrich, Trademark Examining Attorney, Law Office 116 (Michael W. Baird,
Managing Attorney) for Serial No. 85154873.

_____

Before Zervas, Shaw and Kuczma, Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Applicant Bio-Rad QL, Inc. (applicant) has applied to register the following
marks, in standard character form, on the Principal Register:
DROPLET DIGITAL1 and

DROPLET DIGITAL PCR2

1 Application Serial No. 85154873, filed October 18, 2010, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b); the word “DIGITAL” has been disclaimed.

Serial Nos. 77944233 and 85154873

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for the following goods and services, as amended:
reagents, and kits consisting primarily of reagents or of
reagents and sample preparation cartridges, for use in
scientific and medical research, and reagents for
preparation, handling, amplification, and analysis of
samples containing nucleic acids for non-medical use in
the industries of agriculture, biodefense, food science,
forensics, and horticulture, all in connection with the
preparation, handling, amplification, and analysis of
samples containing nucleic acids in Class 1;
reagents, and kits consisting primarily of reagents or of
reagents and sample preparation cartridges, for medical
use, specifically used in medicine, pharmaceuticals, and
toxicology, in connection with the preparation, handling,
amplification, and analysis of samples, such as blood or
other bodily fluids, containing nucleic acids in Class 5;
apparatus, namely, laboratory instruments, portable
laboratory instruments, and handheld laboratory
instruments for use in scientific and medical research and
used in the industries of agriculture, biodefense, food
science, forensics, horticulture, medicine,
pharmaceuticals, and toxicology, all in connection with
the preparation, handling, amplification, and analysis of
samples containing nucleic acids; software for preparing,
handling, amplification, and analysis of samples
containing nucleic acids, for use in scientific and medical
research and used in the industries of agriculture,
biodefense, food science, forensics, horticulture, medicine,
pharmaceuticals, and toxicology; electronic databases
recorded on computer media in the fields of the
preparation, handling, amplification, and analysis of
samples containing nucleic acids and used in the
industries of agriculture, biodefense, food science,
forensics, horticulture, medicine, pharmaceuticals, and
toxicology; accessories in the nature of laboratory
apparatus, namely, sample preparation cartridges and
kits consisting primarily of sample preparation cartridges

2 Application Serial No. 77944233 filed February 24, 2010, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b); the wording “DIGITAL PCR” has been disclaimed.

Serial Nos. 77944233 and 85154873

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and reagents, and instruction manuals sold as a unit
therewith, used to prepare laboratory samples for use in
scientific and medical research, and in the industries of
agriculture, biodefense, food science, forensics,
horticulture, medicine, pharmaceuticals, and toxicology,
all in connection with the preparation, handling,
amplification, and analysis of samples containing nucleic
acids Class in 9;
apparatus, namely, medical measurement instruments
that identify, characterize, and measure concentration of
nucleic-acid-containing materials, medical diagnostic
instruments that diagnose characteristics and conditions
associated with patients, and medical monitoring
instruments that monitor patients' blood and other bodily
fluids, all involving the preparation, handling,
amplification, and analysis of samples, such as blood or
other bodily fluids, containing nucleic acids Class 10;
sample analysis, namely, conducting analysis of samples
containing nucleic acids Class in 42.
The examining attorneys have refused registration pursuant to Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1) on the ground that the applied-
for marks merely describe the purpose or function of applicant’s goods and services.
After the refusals were made final, applicant timely appealed the refusals and filed
requests for reconsideration which have been denied. The appeals are fully briefed.
For the reasons set forth below, the refusals to register are affirmed.
Consolidation of Appeals
We have considered the arguments and evidence filed in both cases. The
applied-for marks, refusals to register, as well as the records and the briefs, are
nearly identical. Thus, the appeals involve common factual and legal issues, and
are therefore consolidated and addressed in a single opinion.
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Applicant and the examining attorneys have embraced applicant’s general
description of its goods and services as “nucleic-acid-related reagents, kits,
instruments, and analyzing services,” and refer to such as “nucleic-acid-related
goods/services.” We likewise adopt this shorthand terminology to refer to the goods
and services identified in the applications.
Descriptiveness
A term is merely descriptive within the meaning of § 2(e)(1) if it immediately
conveys knowledge of a quality, characteristic, function, feature, purpose or use of
the goods 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) and In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987).
The examining attorneys contend the components of the applied-for
DROPLET DIGITAL and DROPLET DIGITAL PCR marks are descriptive and
retain their descriptive meanings when combined. In support of their position, the
examining attorneys provided definitions for the words “droplet” and “digital”:
droplet:
a very small drop of liquid.
www.macmillandictionary.com3
digital:
representing data as numbers: processing, storing,
transmitting, representing, or displaying data in the form

3 See March 28, 2012 Office Action for Serial No. 77944233 and attachment to August 10,
2011 Office Action for Serial No. 85154873.
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of numerical digits, as in a digital computer.
www.encarta.msn.com.4
The following definition and Wikipedia entries were also submitted in
connection with Serial No. 77944233 to support the meaning of the term “PCR”:
PCR:
Polymerase Chain Reaction. A method for amplifying a
particular region of DNA by a sequence of denaturation,
annealing of specific primers, and synthesis. Use of a
thermostable DNA polymerase (such as Taq polymerase)
allows the reactions to be performed in a thermocycler
that automatically adjusts the temperature to the optimal
for each reaction through many cycles. The concentration
of the amplified DNA fragment increases exponentially
with each cycle.
www.sci.sdsu.edu/~smaloy/Glossary/P/5
Digital polymerase chain reaction:
Digital polymerase chain reaction (digital PCR,
DigitalPCR, dPCR or dePCR) is a refinement of
conventional polymerase chain reaction methods that can
be used to directly quantify and clonally amplify nucleic
acids including DNA, cDNA or RNA . . .
http://en.wikipedia.org/wiki/Digital_PCR.6
Variants of PCR:
The Digital polymerase chain reaction simultaneously
amplifies thousands of samples, each in a separate
droplet within an emulsion.
http://en.wikipedia.org/wiki/Variants_of_PCR7

4 See March 28, 2012 Office Action for 77944233 and attachment to January 27, 2011 Office
Action for Serial No. 85154873.
5 See attachment to March 28, 2012 Office Action for Serial No. 77944233.
6 See attachments to October 10, 2012 Request for Reconsideration Denied for Serial No.
77944233.
7 See attachments to October 10, 2012 Request for Reconsideration Denied for Serial No.
77944233.
Serial Nos. 77944233 and 85154873

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While applicant disclaimed the terms “Digital” and “Digital PCR,” it is
inappropriate to give the presence of the disclaimers any legal significance. In re
National Data Corp., 753 F. 2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
However, we note that applicant is not asserting “trademark rights in the DIGITAL
PCR component.”8
Considering the foregoing definitions in light of the identified goods and
services, the examining attorneys assert that DROPLET DIGITAL and DROPLET
DIGITAL PCR describe a use or purpose of the identified goods and services,
namely that they are utilized with digital technology to measure the nucleic acids
contained in droplet samples.9 As explained in the Company Background section of
applicant’s website, applicant “has developed the third generation of PCR
technology that quantifies DNA molecules by Droplet Digital™ PCR.”10
Applicant contends that its applied-for marks are not descriptive, presenting
three arguments why its applied-for marks are “at least” suggestive: (1) consumers
will have to think before they will understand the relationship between the applied-
for marks and nucleic-acid related goods and services; (2) the applied-for marks are
capable of connoting various meanings in addition to the suggestion of applicant’s

8 Applicant’s Reply Brief for Serial No. 77944233 p. 1.
9 See Examining Attorneys’ Appeal Briefs at unnumbered p. 8 for Serial No. 77944233 and
unnumbered p. 6 for for Serial No. 85154873. As noted in the Wikipedia entry for Digital
polymerase chain reaction, nucleic acids include DNA and RNA. (See attachment to
October 10, 2012 Request for Reconsideration Denied for Serial No. 77944233 from
http://en.wikipedia.org/wiki/Digital_PCR.) Therefore, for purposes of this decision, the
terms DNA and RNA shall be deemed interchangeable with the term “nucleic acid” as that
term is utilized in referring to applicant’s nucleic-acid-related goods and services.
10 See attachment to August 10, 2011 Office Action for Serial No. 85154873 from
www.quantalife.com/about/company-background.
Serial Nos. 77944233 and 85154873

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nucleic-acid-related goods and services; and (3) the applied-for marks are at least
suggestive of its goods and services because they include alliterative imagery from
the repeating “d” sound and look associated with the composite applied-for marks,
and they have an incongruous feature due to the unusual combination of the
concepts of “droplet” and “digital.”
Applicant’s own website contradicts its first argument, that only after a
certain amount of thought will pertinent consumers understand the relationship
between the applied-for marks and applicant’s nucleic-acid-related goods and
services. The website, located at www.quantalife.com, shows that applicant’s goods
and services are part of a nucleic acid quantification process that utilizes digital
technology to provide a digital readout of molecular quantities in a droplet
comprised of reagents and a DNA sample. The site also conveys that droplets are a
major focus of the process for which applicant’s goods and services are utilized.
Applicant’s website states “This elegantly simple system precisely measures DNA
variations and or messenger RNA and provides absolute quantification . . . as a
digital readout.” (emphasis added). The “Steps” for nucleic acid quantification
outlined on applicant’s website, namely (1) Make Droplets, (2) Cycle Droplets and
(3) Read Droplets, demonstrate the important role of “droplets”:

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The descriptions following each “Step” detail the process wherein samples are
loaded into a droplet generator cartridge to create an emulsion of droplets. The
droplets are then loaded into a droplet reader where software “reads” the content of
the droplets and plots the results.11
The images of a computer laptop with graphs and charts that accompany the
description of applicant’s system reinforce that applicant’s goods and services
involve the use of “digital” technology to analyze and quantify the nucleic acid
content in the droplets:

11 See attachment to August 10, 2011 Office Action for Serial No. 85154873.
Serial Nos. 77944233 and 85154873

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12
The test for descriptiveness is not, as applicant contends, limited to whether
the proposed mark “immediately remind[s] consumers of the goods and services.”13
Rather, the test for determining descriptiveness articulated in the cases cited by
applicant is whether a mark immediately conveys knowledge or information
concerning a quality, characteristic, function, ingredient, attribute or feature of the
product or service in connection with which it is used or intended to be used.
Gyulay, 3 USPQ2d at 1009-1010 and In re Remacle, 66 USPQ2d 1222, 1224 (TTAB
2002). Applying the correct descriptiveness test finds applicant’s marks to be
descriptive because they merely describe key features of applicant’s goods and

12 See attachment to August 10, 2011 Office Action for Serial No. 85154873.
13 Applicant’s Appeal Briefs for Serial No. 77944233 p. 3; Serial No. 85154873 p. 3.
Serial Nos. 77944233 and 85154873

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services, i.e., they involve the use of “digital PCR” technology to analyze and
quantify the nucleic acid content in the prepared droplets. Thus, little, if any,
thought is required in order to make the connection between applicant’s applied-for
marks and its goods and services.
Although applicant acknowledges the sophistication of the users of its
products and services, it argues that the proper meaning of the applied-for marks to
the “pertinent consumer, namely buyers” of its products is the pertinent
consideration and that “[T]hose making buying decisions for Applicant’s products
are not always or necessarily scientists, therefore there is also doubt concerning
whether the pertinent consumers are as sophisticated as is argued” by the
examining attorneys.14 However, “[t]he question is not whether someone presented
with only the mark could guess what the goods or services are. Rather, the question
is whether someone who knows what the goods or services are will understand the
mark to convey information about them.” In re Tower Tech Inc., 64 USPQ2d 1314,
1316-17 (TTAB 2002).
Whether a particular term is merely descriptive must be determined not in
the abstract, but in relation to the goods or services for which registration is sought,
the context in which the term is used, and the possible significance that the term is
likely to have to the average prospective purchaser encountering the goods or
services in the marketplace. In re Abcor Development. Corp., 588 F.2d 811, 200
USPQ 215, 218 (CCPA 1978); In re Phoseon Technology Inc., 103 USPQ2d 1822,

14 See Applicant’s Reply Brief for Serial No. 77944233 p. 2.
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1823 (TTAB 2012). Applicant’s website, as well as the evidence from scientific trade
publications discussed below, is directed to scientists and researchers.15 Based on
the content of these materials, scientists and researchers would understand the
applied-for marks convey information describing the purpose of the goods and
services. Therefore, regardless whether the purchasing decisions are made by
nonscientists as applicant contends, the persons who will encounter the goods and
services in the marketplace are sophisticated and would understand the descriptive
significance of the terms DROPLET DIGITAL and DROPLET DIGITAL PCR.
Applicant next argues that its marks are capable of connoting various
meanings providing the sole example that a consumer may think that the marks
refer to a “dropper pipette that has a manual feature.”16 Because droplets are an
essential aspect of applicant’s system, and there is no evidence establishing that
“dropper pipettes” are either known or referred to as “droplets,” there is no basis for
us to find that the word “droplet” as used in the applied-for marks would be
understood to refer to a “dropper pipette.” Moreover, that a term may have other
meanings in different contexts is not controlling. In re Franklin County Historical
Society, 104 USPQ2d 1085, 1087 (TTAB 2012) and In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979).
Lastly, applicant argues that the applied-for DROPLET DIGITAL and
DROPLET DIGITAL PCR marks are suggestive because they contain alliterative

15 See attachments to August 10, 2011 Office Action for Serial No. 85154873 from
www.quantalife.com/technology/ddpcr and www.quantalife.com/about/company-
background.
16 See Applicant’s Appeal Briefs for Serial No. 85154873 p. 6; Serial No. 77944233 p. 7.
Serial Nos. 77944233 and 85154873

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imagery from the repeating “d” sound and look, and have an incongruous feature
due to the unusual combination of the concepts of “droplet” and “digital.” Nothing
in the record suggests that the mere fact that the words “droplet” and “digital” both
begin with the letter “d” would overcome the merely descriptive significance of these
terms. The descriptive meanings of the terms “droplet,” “digital” and “digital PCR”
and their relatedness to applicant’s goods and services are well established by the
following passages from scientific publications:
• Speaking at the UBS Global Life Sciences Conference in
New York, Banerjee told investors that RainDance
expects to launch a digital PCR instrument platform
driven by its picoliter-volume droplet technology in
“early 2012,” . . . (emphasis added)17
• Meantime, Janaway [product manager for real-time PCR
reagents at Life Tech] described the Stokes platform as ‘a
flow system where individual droplets pass through
thermal cycling and detector regions in a continuous flow.
It is very flexible and allows us to adjust the volumes of
droplets we’re producing, and the frequency and flow
rate of measuring these droplets. So we think it can be
extended quite a bit in the digital space. . .
In a recent interview, RainDance Technologies president
and CEO Roopom Banerjee told PCR Insider that the
company is ‘actively looking’ at the digital PCR space,
and has demonstrated in house that its microdroplet
technology could seriously up the ante in term of dPCR
throughout.” (emphasis added).18

17 See attachments to March 22, 2012 Office Action for Serial No. 85154873 and
attachments to March 28, 2012 Office Action for 77944233 from PCR Insider article
“RainDance Eyes Early 2012 for Digital PCR Launch; Preps New Sequence Enrichment
Platform for ASHG” at www.genomeweb.com/pcrsample-prep/raindance-eyes-early-2012-
digital-pcr-launch-preps-new-sequence-enrichment-platf.
18 See attachments to March 22, 2012 Office Action for Serial No. 85154783 and
attachments to March 28, 2012 Office Action for 77944233 from PCR Insider article “Digital
PCR Space Heating Up as Life Science Tool Vendors Begin Staking Claims” at
Serial Nos. 77944233 and 85154873

13

• . . . Emulsion PCR, microdroplet, and engineered
nanoliter droplets can be also potentially applied for
digital PCR, but these systems require either
mechanical agitation or pumps to generate the small
volume droplets. (emphasis added)19
• Most of these ‘digital PCR’ applications rely on having
just one analyte per sample and thus require excessive
dilutions, but the ability to make droplets with
extremely precise volumes circumvents that requirement.
(emphasis added).20
In view of the foregoing, not only are the components of the applied-for marks
descriptive, they retain their descriptive meanings in relation to applicant’s goods
and services resulting in composite marks that are themselves descriptive and not
registrable. A combination of descriptive terms may be registrable if the composite
creates a unitary mark with a separate, nondescriptive meaning. In re Colonial
Stores, Inc., 394 F.2d 549, 157 USPQ 382, 385 (CCPA 1968). Whether a term which
is created by combining two or more unregistrable words may achieve registration
depends on whether, in combination, a new and different commercial impression is
achieved and/or the term so created imparts a bizarre or incongruous meaning as
used in connection with the goods or services. In re Associated Theatre Clubs Co., 9
USPQ2d 1660, 1662 (TTAB 1988). If each component retains its descriptive

www.genomeweb.com/pcrsample-prep/digital-pcr-space-heating-life-science-tool-vendors-
begin-staking-claims.
19 See attachments to March 22, 2012 Office Action for Serial No. 85154783 and
attachments to March 28, 2012 Office Action for 77944233 from “Digital PCR on a Slip
Chip” at www.ncbi.nlm.nih.gov/pmc/articles/PMC2948063.
20 See attachments to March 22, 2012 Office Action for Serial No. 85154873 and
attachments to March 28, 2012 Office Action for 77944233 from Nature Methods article
“Clever PCR: more genotyping, smaller volumes” at
www.nature.com/nmeth/journal/v7/n5/full/nmeth0510-351.
Serial Nos. 77944233 and 85154873

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significance in relation to the goods or services as is the case with respect to
applicant’s applied-for marks, the combination results in a composite that is itself
descriptive. DuoPross Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F.3d
1247, 103 USPQ2d 1753 (Fed. Cir. 2012) (SNAP SIMPLY SAFER merely
descriptive for medical devices); also see, In re Petroglyph Games Inc., 91 USPQ2d
1332, 1341 (TTAB 2009) (BATTLECAM merely descriptive for computer game
software); In re King Koil Licensing Co., 79 USPQ2d 1048, 1052 (TTAB 2006) (THE
BREATHABLE MATTRESS held merely descriptive of beds, mattresses, box
springs, and pillows where the term BREATHABLE retained its ordinary dictionary
meaning when combined with the term MATTRESS and the resulting combination
was used in the relevant industry in a descriptive sense); In re Associated Theatre
Clubs Co., 9 USPQ2d 1660, 1663 (TTAB 1988) (GROUP SALES BOX OFFICE is
merely descriptive of theater ticket sales services because such wording is a
combination of the two common descriptive terms most applicable to applicant’s
services which remains a common descriptive compound expression”).
As to the alleged incongruity of the applied-for marks, applicant does not
explain the incongruity and we see none. Applicant’s goods and services relate to
the analysis of nucleic acids by utilizing droplets which are analyzed and quantified
in digital form using digital PCR. Indeed, the proposed marks have been used as
descriptive terms in trade publications and are represented by the abbreviation
“ddPCR”:
• Droplet digital polymerase chain reaction (ddPCR)
is a new technology that was recently commercialized to
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enable the precise quantification of target nucleic acids in
a sample. ddPCR measures absolute quantities by
counting nucleic acid molecules encapsulated in discrete,
volumetrically defined, water-in-oil droplet partitions.
(emphasis added).21
• Bio-Rad unveils biology centre to develop droplet
digital-based products (emphasis added).22
• Going digital: a new approach to disease research:
droplet digital PCR technology has emerged as leader
in offering precision, sensitivity and accuracy for rare
target DNA detection; Life Science & Biomedical Labs
(emphasis original); “One example of how digital PCR
works is dropletdigital PCR (ddPCR), wherein the
partitions are created by water-in-oil droplets, amplified
and then read by a detector, as illustrated in Figure 1.
(emphasis added).23
• Bio-Rad Laboratories Inc. has launched its semi-
automated PX1 PCR plate sealer and heat seals for fast
and consistent microplate sealing. Designed for PCR,
real-time PCR (qPCR), and droplet digital PCR
(ddPCR) applications, the PX1 PCR plate sealer
and . . . (emphasis added).24
• Droplet digital PCR (ddPCR) is a refinement of real-
time PCR that enables researchers to directly quantify

21 See attachments to March 22, 2012 Office Action for Serial No. 85154873 and
attachments to March 28, 2012 Office Action for 77944233 from Analytical Chemistry
article “Evaluation of a Droplet Digital Polymerase Chain Reaction Format for DNA Copy
Number Quantification from: http://pubs.acs.org/doi/abs/10.1021/ac202578x.
22 See attachments to October 10, 2012 Request for Reconsideration Denied for Serial No.
77944233 from August 31, 2012, Diagnostic Focus published by Espicom Business
Intelligence.
23 See attachments to October 10, 2012 Request for Reconsideration Denied for Serial No.
77944233 from February 1, 2012 Advantage Business Media, Laboratory Equipment.
24 See attachments to October 10, 2012 Request for Reconsideration Denied for Serial No.
77944233 from website of Drug Discovery & Development located at
www.dddmag.com/products/2012/10/plate-sealer.
Serial Nos. 77944233 and 85154873

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and clonally amplify nucleic acids, including DNA and
RNA. (emphasis original).25
In addition to these descriptive uses of the actual term “droplet digital PCR,”
“droplet” has been used in close proximity to “digital,” “digital PCR” and “dPCR”:
• Banerjee (President of RainDance Technologies) said that
the company could foresee a microdroplet-based dPCR
platform having initial applications . . . (emphasis
added).26
• UC Irvine Details 1M-Droplet Array for Digital PCR,
Claims Advantages Over Other Methods (emphasis
added).27
• Digital Biology Center director Annett Tumolo said the
launch of QX100 Droplet Digital PCR instrument
utilizing digital droplet partitioning technology has
potential far beyond the digital PCR market. (emphasis
added).28
The foregoing examples demonstrate the terms “droplet,” “digital” and
“digital PCR” are used together and/or in close association with each other such that
uses of these words in combination for applicant’s goods and services would not be
perceived as unusual or incongruous. Although some of the cited passages refer to

25 See attachments to October 10, 2012 Request for Reconsideration Denied for Serial No.
77944233 from
http://webcache.googleusercontent.com/search?q=cache:MuhroNelPqwJ:www.rdmag.com.
26 See attachments to March 22, 2012 Office Action for Serial No. 85154783 and
attachments to March 28, 2012 Office Action for 77944233 from PCR Insider article “Digital
PCR Space Heating Up as Life Science Tool Vendors Begin Staking Claims” at
www.genomeweb.com/pcrsample-prep/digital-pcr-space-heating-life-science-tool-vendors-
begin-staking-claims.
27 See attachments to March 22, 2012 Office Action for Serial No. 85154783 and
attachments to March 28, 2012 Office Action for 77944233 from PCR Insider article at
www.genomeweb.com/pcrsample-prep/uc-irvine-team-details-1m-droplet-array-digital-pcr-
claims-advantages-over-other.
28 See attachment to October 10, 2012 Request for Reconsideration Denied for Serial No.
77944233 from August 30, 2012 Progressive Media-Company News, “Bio-Rad Labs unveils
new Digital Biology Center.”
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applicant’s system, they do so in a descriptive manner and the fact that applicant
may have been the first or only user of a merely descriptive designation does not
justify registration if the only significance conveyed by the term is merely
descriptive. See In re Alpha Analytics Investment Group LLC, 62 USPQ2d 1852,
1856 (TTAB 2002); In re National Shooting Sports Foundation, Inc., 219 USPQ
1018, 1020 (TTAB 1983).
Evidence that a term is merely descriptive to the relevant purchasing public
may be obtained from any competent source, such as dictionaries, newspapers,
surveys, trade publications or other publications. In re Dial-A-Mattress Operating
Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2001) and In re Bed &
Breakfast Registry, 791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir. 1986). The record
in this case contains a variety of evidence from applicant’s website, third-party
websites, and trade publications. Applicant’s website demonstrates that the terms
DROPLET DIGITAL and DROPLET DIGITAL PCR retain their descriptive
significance when combined in relation to applicant’s goods or services. The third-
party sites and publications similarly demonstrate that consumers, such as
researches and scientists, who know what applicant’s goods and services are will
understand the applied-for marks to convey information about them; that is, that
the goods and services apply digital PCR techniques to analyze and quantify nucleic
acid contained in droplet samples. Therefore, when viewed in relation to the goods
and services, applicant’s applied-for marks are merely descriptive of its identified
goods and services.
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Decision: The refusals to register the applied-for DROPLET DIGITAL PCR
and DROPLET DIGITAL marks in Application Serial Nos. 77944233 and 85154783,
under Section 2(e)(1) of the Trademark Act, are affirmed.