Caldera Pharmaceuticals, Inc.

Trademark Trial and Appeal Board

May 3, 2013

No. 85291101 (T.T.A.B. May. 3, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
May 3, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Caldera Pharmaceuticals, Inc.
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Serial Nos. 85291101 & 85333926
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Benjamin Warner for Caldera Pharmaceuticals, Inc. pro se.

Renee McCray, Trademark Examining Attorney, Law Office 111 (Robert L. Lorenzo,
Managing Attorney).
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Before Kuhlke, Kuczma, and Hightower, Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Applicant Caldera Pharmaceuticals, Inc. has applied to register
MOLECULAR X-RAY FLUORESCENCE, in standard character form, for the
following goods in International Class 9:
Downloadable scientific and medical data via the internet;
Glassware for scientific experiments in laboratories;
Imaging apparatus and instruments for the study of
proteins for agricultural purposes; Imaging apparatus
and instruments for use in the study of proteins and
peptides in drug development; Laboratory apparatus and
chromatography systems for use in protein purification;
Laboratory apparatus and computer systems for use in
protein purification; Plates, glass slides or chips having
multi-well arrays that can be used in chemical analysis,
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biological analysis or patterning for scientific, laboratory
or medical research use; Scientific apparatus and
instruments for measuring relative DNA/RNA and
protein and parts and fittings therefor; Scientific
apparatus and instruments, namely, chromatography
columns for use in purification in the laboratory and parts
and fittings therefor; Scientific apparatus for use with
membrane filtration, namely, water filter controllers and
computer software for detecting and measuring water
quality; Scientific apparatus, namely, spectrometers and
parts and fittings therefor; Scientific apparatus, namely,
spectrophotometer for measuring relative DNA/RNA and
protein; Scientific instrument, namely, fluorescence
detector for crime scene investigations; Scientific
instruments, namely, electronic analyzers for measuring,
testing and detecting contaminants and environmental
pollutants; Sensor chips for scientific use.1
Applicant also has applied to register MXRF, in standard character form, for goods
in International Class 009 ultimately identified as:2
Downloadable scientific and medical data via the internet;
Glassware for scientific experiments in laboratories;
Plates, glass slides or chips having multi-well arrays that
can be used in chemical analysis, biological analysis or
patterning for scientific, laboratory or medical research
use; Scientific apparatus and instruments for measuring
relative DNA/RNA and protein and parts and fittings
therefor; Scientific apparatus and instruments, namely,
chromatography columns for use in purification in the
laboratory and parts and fittings therefor; Scientific
apparatus for use with membrane filtration, namely,
water filter controllers and computer software for
detecting and measuring water quality; Scientific
apparatus, namely, spectrometers and parts and fittings
therefor; Scientific apparatus, namely, spectrophotometer

1 Application Serial No. 85333926, filed May 31, 2011, based on allegations of first use and
first use in commerce at least as early as October 12, 2006, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a).
2 Application Serial No. 85291101, filed April 9, 2011, based on allegations of first use and
first use in commerce at least as early as October 12, 2006, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a).
Serial No. 85291101 and 85333926
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for measuring relative DNA/RNA and protein; Sensor
chips for scientific use.
The examining attorney has refused registration on the ground that the
applied-for marks merely describe the purpose or function of applicant’s goods
pursuant to Trademark Action Section 2(e)(1), 15 U.S.C. § 1052(e)(1).
Applicant timely appealed the refusals, and the appeal is fully briefed.
Appeals Consolidated
We have considered all arguments and evidence filed in each case. Because
the refusals to register are based on common issues of law and fact, as well as
nearly identical records and similar briefs, they are hereby consolidated and we will
address them in a single opinion.
Analysis
A term is merely descriptive within the meaning of Section 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); In re Gyulay, 820
F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987).
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 purchaser encountering the goods or services in the
marketplace. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978); In re Engineering Sys. Corp., 2 USPQ2d 1075, 1076 (TTAB 1986). That a
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term may have other meanings in different contexts is not controlling. In re Bright-
Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979); In re Champion Int’l Corp., 183 USPQ
318, 320 (TTAB 1974). It is settled that “[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).
While 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), the mere combination
of descriptive words does not necessarily create a nondescriptive word or phrase. In
re Associated Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). If each
component retains its descriptive significance in relation to the goods or services,
the combination results in a composite that is itself descriptive. See, e.g., In re
Petroglyph Games Inc., 91 USPQ2d 1332, 1341 (TTAB 2009) (BATTLECAM merely
descriptive for computer game software); In re Putman Publ’g Co., 39 USPQ2d
2021, 2022 (TTAB 1996) (FOOD & BEVERAGE ON-LINE merely descriptive of a
news and information service for the food processing industry).
A. MOLECULAR X-RAY FLUORESCENCE3
The examining attorney contends that MOLECULAR X-RAY
FLUORESCENCE comprises the terms “MOLECULAR” and “X-RAY

3 Application Serial No. 85333926.
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FLUORESCENCE,” which retain their descriptive meanings in combination:
That is, the evidence demonstrates that “MOLECULAR
XRAY FLUORESCENCE” is a screening technique that
involves x-ray fluorescence for use in connection with the
detection of complex molecules. Further, the evidence
shows that this wording is merely descriptive of a
function, purpose or use of applicant’s laboratory
instruments because they are designed for use in
connection with molecular x-ray fluorescence.4
Thus, the examining attorney contends that the proposed mark names or describes
a key feature of applicant’s goods, that is, their function, purpose, or use. The
examining attorney points to applicant’s description of the goods in its specimens as
“apparatus and consumables for molecular x-ray fluorescence,” as well as
applicant’s use of the phrase “Molecular X-Ray Fluorescence” to describe its goods,
as follows:
5

4 Examining Attorney’s Brief, at unnumbered page 4.
5 Excerpt from advertising presentation, January 15, 2012 response to Office action, at 4.
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6
Applicant contends that “molecular x-ray fluorescence” is not descriptive or
widely known, but a meaningless, arbitrary, and fanciful coined phrase requiring
imagination.7 This is so because x-ray fluorescence is intrinsically not a molecular
process, applicant argues, and applicant’s mark “differentiate[s] its products from
other ‘x-ray fluorescence’ products that describe an atomic and not molecular
process.”8 Applicant also criticizes the examining attorney’s evidence as either
irrelevant to the proposed mark or from highly scientific papers dating to the
1980s.9

6 Excerpt from brochure, id. at 3.
7 Applicant’s Brief, at 8-10.
8 Id. at 9.
9 Id. at 4-7.
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The examining attorney has made of record dictionary definitions of the
constituent terms in the proposed mark: molecular, x-ray, and fluorescence.10 We
note that one of the definitions of “fluorescence” specifically recognizes that
molecules, as well as atoms, can fluoresce:
the emission of light or other radiation from atoms or
molecules that are bombarded by particles, such as
electrons, or by radiation from a separate source. The
bombarding radiation produces excited atoms, molecules,
or ions and these emit photons as they fall back to the
ground state11
Also of record are a Wikipedia article on “X-ray fluorescence (XRF),”12 and
references to the following journal articles:
• “Polarization of molecular x-ray fluorescence” (1988);13
• “High Resolution Molecular X-Ray Fluorescence Study of Soft X-Ray
Radiation Damage to Solid KC1 and KC103,” with an abstract
beginning: “In the newly emerging field of molecular X-ray emission
spectroscopy there is a persistent concern about radiation damage to
samples caused by soft x-rays.” (1980);14 and
• “A 5-m grating spectrograph for studying molecular x-ray fluorescence
spectra” (1980), which has one of the same authors as the immediately
preceding article.15

10 July 16, 2011 Office action, at 34-47.
11 Id. at 37; see also, e.g., February 19, 2012 Office action, at 1 (Nexis article referencing
“Molecular Fluorescence” chapter in Encyclopedia of Applied Spectroscopy), 14-15 (listing
articles from the Journal of Applied Physics including “Molecular-orbital studies via
satellite-free x-ray fluorescence . . . ” (reference 6)), 16-17 (“Tryptophan rotamers as
evidenced by X-ray, fluorescence lifetimes, and molecular dynamics modeling”).
12 February 19, 2012 Office action, at 2-11.
13 Id. at 12-13, 18-19, 27-28.
14 Id. at 20-22, 29.
15 Id. at 23-24. The record also references a published letter that appears to relate to
preliminary evaluation of this spectrograph. Id. at 15 (reference 31).
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The cited articles demonstrate that the phrase “molecular X-ray fluorescence”
has descriptive meaning. Although the articles of record using the exact phrase are
old and few in number, the fact that an applicant may be the first (or first recent)
and only current user of a merely descriptive designation does not justify
registration if the only significance conveyed by the term is merely descriptive. See
In re Nat’l Shooting Sports Found., Inc., 219 USPQ 1018, 1020 (TTAB 1983).
Applicant does not dispute that “X-ray fluorescence” is a descriptive term. Its
own marketing materials demonstrate that this term and “molecular” retain their
descriptive significance when combined in relation to applicant’s goods or services.
Applicant’s brochure states that “Molecular X-Ray FluorescenceTM” is used to
quantify “the elements intrinsic to molecular features.”16 These materials
demonstrate that consumers who know what applicant’s goods are will understand
the proposed mark to convey information about them; that is, that the goods are
apparatus and consumables for use in X-ray fluorescence quantifying the elements
intrinsic to molecular features. Thus, applicant’s proposed mark “Molecular X-Ray
Fluorescence” is merely descriptive in association with the identified goods.
B. MXRF17
We next consider the refusal to register MXRF, an initialism representing the
first letters of “Molecular X-Ray Fluorescence,” on the ground that it is merely
descriptive.

16 Excerpt from brochure, January 15, 2012 response to Office action, at 3.
17 Application Serial No. 85291101.
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An abbreviation, initialism, or acronym of a merely descriptive term is also
merely descriptive if it is readily understood by the relevant purchasers to be
“substantially synonymous” with the merely descriptive wording it represents or
stands for. Modern Optics, Inc. v. Univis Lens Co., 234 F.2d 504, 110 USPQ 293,
295 (CCPA 1956); see also, e.g., In re Thomas Nelson, Inc., 97 USPQ2d 1712 (TTAB
2011) (holding NKJV, an abbreviation of “New King James Version,” merely
descriptive of bibles); In re BetaBatt Inc., 89 USPQ2d 1152 (TTAB 2008) (holding
DEC merely descriptive of batteries deriving power from nuclear decay processes
because “DEC” is routinely used as an abbreviation for “direct energy conversion”).
[I]t is possible for initial letters to become so associated
with descriptive words as to become descriptive
themselves. It does not follow, however, that all initials of
combinations of descriptive words are ipso facto
unregistrable. While each case must be decided on the
basis of the particular facts involved, it would seem that,
as a general rule, initials cannot be considered descriptive
unless they have become so generally understood as
representing descriptive words as to be accepted as
substantially synonymous therewith.
Modern Optics, Inc., 110 USPQ at 295 (citations omitted).
Thus, for MXRF to be merely descriptive of applicant’s goods, we must find
the following:
1. MXRF is an abbreviation for “molecular X-ray fluorescence,” which
applicant admitted during prosecution;18
2. “Molecular X-ray fluorescence” is merely descriptive of the goods listed
in the application, as we found with respect to applicant’s co-pending
application for that term supra; and

18 Response to Office action, January 15, 2012 (stating that “MXRF is an acronym for
Molecular X-Ray Fluorescence”).
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3. A relevant consumer viewing MXRF in connection with applicant’s
products would recognize it as an abbreviation of the term “molecular
X-ray fluorescence.”
See In re Thomas Nelson Inc., 97 USPQ2d at 1715-16. With the first two prongs of
the test satisfied, we turn our attention to the third.
Applicant argues that MXRF is not a widely used or recognized acronym for
“molecular x-ray fluorescence”:
Applicant therefore submits that the trademark MXRF is
an arbitrary mark, as applied to applicant’s class 9 goods,
because no customer would understand, or infer, or
believe that x-ray fluorescence relates to a molecule and
no customer would understand MXRF, the mark at issue
in this appeal, as a widely known acronym for “molecular
x-ray fluorescence”.19
As previously noted, the examining attorney submitted a Wikipedia article on
“X-ray fluorescence (XRF),”20 as well as results from www.acronymfinder.com,21
demonstrating that XRF is a recognized abbreviation for this term. The examining
attorney also submitted evidence of descriptive use of the acronym MXRF to signify
“micro X-ray fluorescence,” which may be used to detect fingerprints and determine
chemical composition of inorganic material.22
The examining attorney also made of record a presentation by applicant’s
president, among others, on “MXRF-Based Molecular Recognition Technology.”23
The presentation appears to describe the application of X-ray fluorescence to

19 Applicant’s Brief, at 12.
20 February 19, 2012 Office action, at 2-11.
21 July 16, 2011 Office action, at 42-43.
22 Id. at 2-5, 27-29.
23 July 16, 2011 Office action, at 8-26.
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molecular recognition in what is called the “MXRF Method.”24 A few of the slides
from that presentation follow:25

24 Id. at 12.
25 Id. at 8, 9, 15.
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Applicant describes its specimens as showing “MXRF equipment, and MXRF
spectrometer data provided as a commercial service by Caldera.” The latter
specimen is an “MXRF Report” referring to the results of “an MXRF analysis.”
The record shows that XRF is an acronym for “X-ray fluorescence.” The
record also demonstrates use of the acronym MXRF to signify “micro X-ray
fluorescence.” However, the record includes no use of MXRF to signify “molecular
X-ray fluorescence” other than by applicant and applicant’s president. We further
note that this example of use, where the term is used at the top of the page in large
lettering without the descriptive phrase, is not necessarily indicative of descriptive
use. Cf. In re Country Music Ass’n Inc., 100 USPQ2d 1824, 1831 (TTAB 2011)
(initial capitalization form may be indicative of use as a trade or brand name).
Simply because a trademark is derived from the first letters of descriptive or
even generic words does not mean that the trademark would be recognized as an
abbreviation for these words. Baroness Small Estates Inc. v. American Wine Trade
Inc., 104 USPQ2d 1224, 1231 (TTAB 2012) (holding CMS not substantially
synonymous with the grape varietals cabernet, merlot, and syrah and therefore not
merely descriptive for wine). Without additional evidence, applicant’s use of the
acronym MXRF is not sufficient to establish that the acronym is readily understood
to be substantially synonymous with the descriptive wording it represents. See
Modern Optics, 110 USPQ at 295 (finding record unconvincing that CV is a
generally recognized term for multifocal lenses and lens blanks); see also In re
Harco Corp., 220 USPQ 1075, 1076 (TTAB 1984) (finding record insufficient to
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establish that the letters “CPL” would be commonly understood as no more than an
abbreviation of “computerized potential log” by those who might come in contact
with applicant’s services).
This case is distinguishable from those in which third-party use of an
initialism supported a finding of mere descriptiveness. See, e.g., In re BetaBatt Inc.,
89 USPQ2d at 1153-55 (showing DEC routinely used as an abbreviation for “direct
energy conversion”); In re The Yacht Exch., Inc., 214 USPQ 406 (TTAB 1982)
(finding MLS descriptive for multiple listing services for yachts and boats). Here,
the record includes no use of the abbreviation MXRF to signify “molecular X-ray
fluorescence” other than applicant’s own use in relation to its goods. The only
examples of third-party use of MXRF are in association with a different term,
“micro X-ray fluorescence.” The record does not establish that the terms
“molecular” and “micro” are interchangeable, or that “molecular X-ray fluorescence”
is a kind of “micro X-ray fluorescence.” Thus, the examining attorney has failed to
prove that MXRF is so generally understood as representing the phrase “molecular
X-ray fluorescence” as to be accepted as substantially synonymous therewith.
Decision: The examining attorney’s refusal to register MOLECULAR X-RAY
FLUORESCENCE, Application Serial No. 85333926, under Section 2(e)(1) of the
Trademark Act is affirmed. The refusal to register MXRF, Application Serial
No. 85291101, is reversed.