Cavium, Inc.

Trademark Trial and Appeal Board

Nov 5, 2018

No. 86678199 (T.T.A.B. Nov. 5, 2018)

This Opinion is not a
Precedent of the TTAB

Hearing: September 20, 2018 Mailed: November 5, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Cavium, Inc.
_____

Serial No. 86678199
_____

Farah P. Bhatti of Buchalter, a Professional Corporation,
for Cavium, Inc.

Michael P. Keating,1 Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Zervas, Ritchie and Gorowitz,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Cavium, Inc. (“Applicant”) seeks registration on the Principal Register of the
proposed standard character mark PACKET TRAKKER for the following
International Class 9 goods as amended by Applicant:
Ethernet switches; semiconductor chips; Ethernet
switching chips; microprocessors, namely, networking
chips; switch silicon, namely, Ethernet switches, Ethernet
switching chips and data processors; multi-core Reduced
Instruction Set Computing (RISC) system on chip
processors for data center and cloud applications, namely,

1 Chris Doninger, Managing Attorney, Law Office 111, represented the Office in the oral
hearing.
Serial No. 86678199
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web hosting, data analytics, clustering, high frequency
trading, cloud computing, enterprise resource planning,
search, financial transaction processing, social media;
integrated circuits, namely, system on chip processors for
micro-server and server computing processes; server
adapters; semiconductor chips, Ethernet switching chips,
microprocessors, multi-core Reduced Instruction Set
Computing (RISC) system on chip processors, integrated
circuits in the nature of system on chips and server
adapters which monitors and debugs networks; computer
software that enables the search of a database to find
specific computing or networking events or generic
computing or networking transaction logs and software for
visibility and instrumentation.2
The Examining Attorney refused registration of Applicant’s proposed mark,
having determined that PACKET TRAKKER is merely descriptive of a characteristic,
feature, purpose or function of Applicant’s identified goods, and, in the alternative,
deceptively misdescriptive of the identified goods, both grounds for refusal under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1).
After the Examining Attorney made the refusal final, Applicant appealed to this
Board and requested reconsideration. The Examining Attorney denied the request
for reconsideration, the appeal was resumed and Applicant and the Examining
Attorney filed briefs. At Applicant’s request, the Board conducted an oral hearing on
September 20, 2018.
I. Descriptiveness Refusal.
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of “a mark which, (1) when used on or in connection with the goods of the

2 Application Serial No. 86678199 was filed on June 29, 2015, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon an allegation of a bona fide intention to use
the proposed mark in commerce.
Serial No. 86678199
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applicant is merely descriptive . . . of them.” 15 U.S.C. § 1052(e)(1). A term is “merely
descriptive” within the meaning of Section 2(e)(1) 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 AG, 488 F.3d 960, 82
USPQ2d 1828, 1831 (Fed. Cir. 2007)). “On the other hand, if one must exercise mature
thought or follow a multi-stage reasoning process in order to determine what product
or service characteristics the term indicates, the term is suggestive rather than
merely descriptive.” In re Tennis in the Round, Inc., 199 USPQ 496, 498 (TTAB 1978);
see also In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983); In re Universal Water
Systems, Inc., 209 USPQ 165, 166 (TTAB 1980).
Whether a mark is merely descriptive is determined in relation to the goods for
which registration is sought, not in the abstract or on the basis of guesswork.
Descriptiveness must be evaluated “in relation to the particular goods for which
registration is sought, the context in which it is being used, and the possible
significance that the term would have to the average purchaser of the goods because
of the manner of its use or intended use.” In re Chamber of Commerce of the U.S., 102
USPQ2d at 1219 (quoting In re Bayer AG, 82 USPQ2d at 1831). In other words, we
evaluate whether someone who knows what the goods are will understand the mark
to convey information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices,
Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re Tower Tech Inc.,
64 USPQ2d 1314, 1316-17 (TTAB 2002).
Serial No. 86678199
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When two (or more) merely descriptive terms are combined, the determination of
whether the composite mark also has a merely descriptive significance turns on
whether the combination of terms evokes a new and unique commercial impression.
If each component retains its merely descriptive significance in relation to the goods,
the combination results in a composite that is itself merely descriptive. See e.g., In re
Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370 (Fed. Cir. 2004)
(PATENTS.COM merely descriptive of computer software for managing a database
of records that could include patents, and for tracking the status of the records by
means of the Internet); In re Petroglyph Games, Inc., 91 USPQ2d 1332 (TTAB 2009)
(BATTLECAM merely descriptive for computer game software); In re Carlson, 91
USPQ2d 1198 (TTAB 2009) (URBANHOUZING merely descriptive of real estate
brokerage, real estate consultation and real estate listing services).
The Examining Attorney argues that “both the individual components and the
composite result are descriptive of applicant’s goods and do not create a unique,
incongruous, or nondescriptive meaning in relation to the goods”; and that the
“combination directly identifies a feature, characteristic, purpose or function of the
identified goods and the meaning is clear and direct.”3
In considering the refusal, we focus on “Ethernet switches,” “computer software
that enables the search of a database to find specific computing or networking events
or generic computing or networking transaction logs and software for visibility and
instrumentation” and “microprocessors, namely, networking chips” in Applicant’s

3 20 TTABVUE 7.
Serial No. 86678199
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identification of goods. We need not address all of the goods in the identification of
goods because if a mark is merely 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).
Additionally, we make clear that we consider the term TRAKKER to be the
equivalent of the term TRACKER because consumers will perceive TRAKKER as an
intentional misspelling or novel spelling of TRACKER due to its phonetic identity.
See In re Quik-Print Copy Shop, Inc., 616 F.2d 523, 205 USPQ 505, 507 & n.9 (CCPA
1980) (holding “QUIK-PRINT,” phonetic spelling of “quick-print,” merely descriptive
of printing and photocopying services); In re Calphalon Corp., 122 USPQ2d 1153,
1163 (TTAB 2017) (holding “SHARPIN”, phonetic spelling of “sharpen,” merely
descriptive of cutlery knife blocks with built-in sharpeners).
The most pertinent evidence in the record and additional definitions of which we
take judicial notice4 are set forth below:
Definitions of “packet”:
The Oxford [U.S.] English Dictionary: “Computing: A block
of data transmitted across a network.”5

4 The Board may take judicial notice of dictionary definitions. In re White Jasmine LLC, 106
USPQ2d 1385, 1392 n.23 (TTAB 2013) (Board may take judicial notice of online dictionaries
that exist in printed format or have regular fixed editions).
5 https://en.oxforddictionaries.com/definition/us/packet. Feb. 20, 2018 Office Action, TSDR 7.
Serial No. 86678199
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Merriam Webster Online Dictionary: “a short fixed-length
section of data that is transmitted as a unit in an electronic
communications network.”6
Webopedia: “A piece of a message transmitted over a
packet-switching network. … One of the key features of a
packet is that it contains the destination address in
addition to the data....”7
Your Dictionary (quoting Webster’s New World Telecom
Dictionary (2016): “The packet can be a user packet
containing user data, or a signaling and control packet for
various network monitoring, alerting and alarming,
maintenance, and other administrative purposes.8
Definitions of “tracker”:
The Oxford [U.S.] English Dictionary: “a device that follows
and records the movements of someone or something.”9
Yourdictionary.com: “One who or that which, tracks ….”10
http://www.yourdictionary.com: “(computing) A computer
program that monitors something.”11
Definition of “track”:
The American Heritage Dictionary of the English
Language (5th 3d. 2018): “To observe the progress of; follow:
tracking the company’s performance daily.”12

6 https:/fit.rit.rw.merriam-webster.com/dictionary/packet, Feb. 20, 2018 Office Action,
TSDR 14.
7 http://www.webopedia.com, Feb. 20, 2018 Office Action, TSDR 16.
8 October 9, 2015 Office Action, TSDR 5.
9 https://en.oxforddictionaries.com/definition/us/tracker. Feb. 20, 2018 Office Action, TSDR
19.
10 www.yourdictionary.com/tracker; Feb. 20, 2018 Office Action, TSDR 20.
11 Feb. 20, 2018 Office Action, TSDR 20. (No URL provided.)
12 https://www.ahdictionary.com/word/search.html?q=track; Feb. 20, 2018 Office Action,
TSDR 22.
Serial No. 86678199
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Applicant’s website:
Integrated Packet TrakkerTM technology delivers a wealth
of visibility and telemetry to solve the most intriguing
diagnostic issues.” …13
“Telemetry” is defined in The American Heritage Dictionary of the English
Language (5th ed. 2018) as “[t]he science and technology of automatic measurement
and transmission of data by wire, radio, or other means from remote sources, as from
space vehicles, to receiving stations for recording and analysis.”14
Information about switches:
● https://en.wikipedia.org/wiki/Network_switch.
A “switch is a device in a computer network that connects
together other devices. Multiple data cables are plugged
into a switch to enable communication between different
networked devices. Switches manage the flow of data
across a network by transmitting a received network
packet only to the one or more devices for which the packet
is intended.”15
● http://www.yourdictionary.com/switch:
A network device joining many systems together at a low-
level layer of the network protocol. The most widely used
Ethernet switches operate at the second layer (Data Link
Layer) of the OSI model and look like hubs. Switches have
more “intelligence” than hubs, however, and are therefore
more costly. Unlike hubs, switches can inspect data
packets as they are received, they can determine both the
source and the destination device of the packet, and they
can then forward the packet correctly. By delivering
messages to only the connected device for which it was

13 www.cavium.com, Feb. 20, 2018 Office Action, TSDR 83.
14 https://www.ahdictionary.com/word/search.html?q=telemetry. We take judicial notice of
this definition.
15 Feb. 20, 2018 Office Action, TSDR 29.
Serial No. 86678199
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intended, network switches save network bandwidth and
offer typically better performance than hubs can.
Network switches offer varying port configurations,
beginning with 4-port or 5-port models and going up to
stackable core infrastructure switches with several
hundred ports.16
● http://www.rtrwireless-world.com/Terminology/switch.html:
Network switch inspects the packet, determine[s] source
and destination address and route[s] the packet
accordingly. By way of forwarding the packet to the
appropriate device switches conserve bandwidth
significantly. …
There are 4 methods [a] layer 2 switch uses as mentioned
below to forward the packet.
1. Store and Forward – in this method, it buffers and
performs checksum on each frame before forwarding.
2. Cut through – In this method, no error check is
performed. Switch reads up the frame’s hardware address
and forwards it.
3. Fragment free – This method is combination of above two
methods i.e. Store and Forward and Cut through. This
method checks [the] first 64 bytes in the frame which gives
addressing information. This tells [the] switch which is the
destination of the frame.17
●https://www.lantronix.com/resources/networking-tutorials/network-switching-
tutorial/:

What is a Switch?

Unlike hubs, switches examine each packet and process it
accordingly rather than simply repeating the signal to all
ports. Switches map the Ethernet addresses of the nodes
residing on each network segment and then allow only the

16 Webster's New World Hacker Dictionary (Wiley Publishing, Inc. (2010). We take judicial
notice of this definition.
17 Feb. 20, 2018 Office Action, TSDR 49.
Serial No. 86678199
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necessary traffic to pass through the switch. When a packet
is received by the switch, the switch examines the
destination and source hardware addresses and compares
them to a table of network segments and addresses. If the
segments are the same, that packet is dropped or “filtered”;
if the segments are different, then the packet is
“forwarded” to the proper segment. Additionally, switches
prevent bad or misaligned packets from spreading by not
forwarding them.
Ethernet itself is a shared media, so there are rules for
sending packets to avoid conflicts and protect data
integrity. Nodes on an Ethernet network send packets
when they determine the network is not in use. It is
possible that two nodes at different locations could try to
send data at the same time. When both PCs are
transferring a packet to the network at the same time, a
collision will result. Both packets are retransmitted,
adding to the traffic problem.
***
Network switching
Understanding traffic patterns is very important to
network switching – the goal being to eliminate (or filter)
as much traffic as possible. A switch installed in a location
where it forwards almost all the traffic it receives will help
much less than one that filters most of the traffic.
… How can you tell if performance problems are the result
of network congestion? Measure utilization factors and
collision rates.
***
Store–and–Forward vs. Cut–Through
LAN switches come in two basic architectures, cut–through
and store–and–forward. Cut–through switches only
examine the destination address before forwarding it on to
its designation segment. A store–and–forward switch, on
the other hand, accepts and analyzes the entire packet
before forwarding it to its destination. It takes more time
to examine the entire packet, but it allows the switch to
Serial No. 86678199
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catch certain packet errors and collisions and keep them
from propagating bad packets of the network.18
Uses of “track” and “tracking” in connection with packets:
● https://www. planet-lab.eu/node/202:19

18 Feb. 20, 2018 Office Action, TSDR 59-60, 63, 66.
19 Feb. 20, 2018 Office Action, TSDR 85. We consider this reference despite its foreign origin
evidenced by its European URL in view of its technical subject matter. See In re Int'l Business
Machines Corp., 81 USPQ2d 1677, 1681 n.7 (TTAB 2006) (web page from foreign source
considered because case involved computer technology, and “it is reasonable to consider a
relevant article regarding computer hardware” from an English-language website from
another country); In re Remacle, 66 USPQ2d 1222, 1224 n.5 (TTAB 2002) (“professionals in
medicine, engineering, computers, telecommunications and other fields are likely to utilize
all available resources, regardless of country of origin or medium”).
Serial No. 86678199
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● BSS monitoring product sheet:20

20 Feb. 20, 2018 Office Action, TSDR 87.
Serial No. 86678199
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● https://www.techopedia.com/definition:21

21 Feb. 20, 2018 Office Action, TSDR 88-89.

Serial No. 86678199
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● https://labs.vmware.com/vmti/pkttrace-a-packet-life-cycle-trackinq-tool-for-
network-services-in-a-software-defined-data-center:

PktTrace: A Packet Life – Cycle Tracking Tool for Network Services
in a Software–Defined Data Center

In this paper, we explore VMware NetX and develop an IP packet tracing tool
(PktTrace) to complement its functionality. PktTrace tracks IP packets at
various points in the data path to detect possible packet loss and processing
latency. With PktTrace, we can better understand network behavior and help
partners debug their services in the SDDC.

PktTrace makes the following contributions:

•It tracks IP packets at various points in the packet flow based on a
given set of rules in the kernel of the virtualization infrastructure. Such
tracking can detect packet loss and the exact location of the loss.

•It records and analyzes the IP packet processing latency that is due to
every network component. Such recording and analysis quantifies the
performance of every packet delivery network component in the SDDC.

•PktTrace is evaluated and verified with the debugging of a real
network security service provided by a VMware development partner
company specializing in security products. Experimental results showed
that PktTrace can significantly help partners detect packet loss during
debugging and provide the performance results to help remove
performance bottlenecks and improve the quality of their services.

***

4.2 Latency Measurement
Mode 0 is selected for packet processing latency
measurement. In this mode, the timestamps have been
collected and analyzed on all the packet processing points
along the data path. The rule diverts the packets to the
SVM if the packets meet the criteria specified in the rule.
Detection is inserted at the point of departure of the packet
after the rule-hit into the SVM and at the point of arrival
back into the kernel, after the packed is processed by the
SVM.
The tailored packets are inserted, and it is ensured that
they are sent to the SVM and return from the SVM. The
Serial No. 86678199
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difference in the timestamps at both the points determines
the latency, which is the time taken up by the service. This
is not an accurate measurement of latency but it does
provide a very quick measure. PktTrace itself collects the
timestamps with VProbes, which is very lightweight [3].
Because the relative timing is measured by PktTrace, the
impact of PktTrace itself adding to the latency ….
Figure 6 shows a snapshot of the experimental results.
Two-way timestamps (ingress and egress) were collected
and analyzed. The results show that the latency is a
significant cost in stage 2 for the ingress stream and in
stage 0 for egress. The stages record the latency of service
in two directions. The average latency of stage 2 for ingress
packets is -195.02us, which accounts for 84.7% of the whole
latency. The average latency of stage 0 for egress packets
is -31.91us, which also accounts for about 81.5% of the
whole latency. Such measured results show the
performance impact of a service.22

● http://serverfault.com/questions/484112/tracking-actual-packet-path-on-a-
lan23

22 November 10, 2016 Office Action, TSDR 29, 36.
23 Oct. 9, 2015 Office Action, TSDR 27.
Serial No. 86678199
- 15 -
● http://serverfault.com/questions/484112/tracking-actual-packet-path-on-a-
lan 24

●http://www.free-t-rex.net/index.php?option=com_content&view
=article&id=6<emid=925

● https://www.wireshark.org/faq.html#q1.1:
Q. 1.1: What is Wireshark?
A. Wireshark® is a network protocol analyzer. ….
Q. 1.13: What devices can Wireshark use to capture
packets?
Wireshark can read live data from Ethernet, Token-Ring,
FDDI, serial (PPP and SLIP) ….

24 Id.
25 Nov. 10, 2016 Office Action, TSDR 39.
Serial No. 86678199
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Capturing Packets
Q. 6.1. When I use Wireshark to capture packets, why do I
see only packets to and from my machine, or not see all the
traffic I am expecting to see from or to the machine I’m
trying to monitor?
A. This might be because the interface on which you’re
capturing is plugged into an Ethernet or Token Ring
switch, on a switched network, unicast traffic between two
ports will not necessarily appear on other ports – only
broadcast and multicast traffic will be sent to all ports. …
Some switches have the ability to replicate all traffic on all
ports to a single port so that you can plug your analyzer
into that single port to sniff all traffic. You would have to
check the documentation for the switch to see if this is
possible and, if so, to see how to do this. …
Note also that many firewall/NAT boxes have a switch built
into them; this includes many of the “cable/DSL router”
boxes. If you have a box of that sort, that has a switch with
some number of Ethernet ports into which you plug
machines on your network, and another Ethernet port used
to connect to a cable or DSL modem, you can, at least, sniff
traffic between the machines on your network and the
Internet by plugging the Ethernet port on the router going
to the modem, the Ethernet port on the modem, and the
machine on which you're running WireShark into a hub
(make sure it’s not a switching hub, and that, if it’s a dual-
speed hub, all three of those ports are running at the same
speed).26
Applicant’s response to Examining Attorney’s request for information:
PACKET TRAKKER is used in a switch to determine the
“health” of the switch and whether there is any network
congestion or latency that must be resolved. PACKET
TRAKKER is used by other applications to pinpoint
specific network, switch, server and NIC configuration
errors, alerts applications to network performance
degradation and provides other applications with network
congestion event warnings and sources. Basically, the
product provides tools which analyze the network to ensure

26 Feb. 20, 2018 Office Action, TSDR 104-105, 108.
Serial No. 86678199
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optimal performance without a reduction in speed due to
traffic or latency. The product does not “track packets.”27
The foregoing evidence establishes that (i) “packets” are blocks of data transmitted
across a network with both a destination address in addition to the data, and may
include signaling and control packets for network monitoring; (ii) switches inspect
packets as they are received, determining both the source and the destination device
of the packet, so they can then forward the packet correctly; and (iii) an Ethernet
switch is a type of switch. When a packet is received by the switch, the switch
examines the destination and source hardware addresses and compares them to a
table of network segments and addresses. If the segments are the same, that packet
is dropped or “filtered” and if the segments are different, then the packet is
“forwarded” to the proper segment. Switches therefore monitor and analyze packets.
Applicant agrees insofar as it states, “Applicant’s goods allow an end user to balance
the resource utilization in a network by monitoring the queues, data ports and how
they are using the network.”28
The evidence also establishes that monitoring software is available for tracking
packets. For example, the PlanetLab Europe webpage discusses a packet-tracking
service that collects packet timestamps, number of active flows, most-used address
ports and protocols, the number of packets, or the number of bytes exchanged
between nodes. It refers to “CoMo,” monitoring software for packet analysis. The VSS
Monitoring webpage discusses “Network Intelligence Optimization Systems,”

27 Oct. 20, 2016 Resp., TSDR 1.
28 21 TTABVUE 6.
Serial No. 86678199
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identified as an “analytical tool” for a network for “Real-Time Deep Packet Tracking.”
Technopedia defines a “packet analyzer” as a “computer application” (i.e., software)
for tracking network traffic that passes over a digital network by analyzing network
traffic. A key use of the packet analyzer is for “monitoring data being transferred or
in motion.”
Applicant argues that Ethernet switches do not track packets but rather switch
or route data, and “the data will go to point to point intervals in a network without
knowing the end point, while during a ‘route,’ the data knows the end point of the
network.”29 “No packets are tracked and no packets are inspected.”30 The evidence
from PktTrace, however, indicates that network protocol analyzers monitor or track
packet movement on “ports,” such as Ethernet switch ports. See also (i) the VM Turbo
webpage which discusses tracking a packet on a “switched network,” which
presumably includes an Ethernet network with Ethernet switches, and (ii) the
Wireshark webpage which discusses a network protocol analyzer which can read live
data from Ethernet devices. Thus, at a minimum, Ethernet switches are suited for
use with network protocol analyzers which track packets.
Additionally, (i) the function of “computer software that enables the search of a
database to find specific computing or networking events or generic computing or
networking transaction logs and software for visibility and instrumentation” (in
Applicant’s identification of goods) is at least similar to the software described in the

29 21 TTABVUE 6.
30 21 TTABVUE 4.
Serial No. 86678199
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Wireshark, VM Turbo and PktTrace webpages; and (ii) “microprocessors, namely,
networking chips” (also in Applicant’s identification of goods) encompass
microprocessors for tracking packets on a network protocol analyzer. See the Cisco
Security Packet Analyzer that “help[s] you investigate security events and anomalous
network activity” and allows for “conducting packet capture in select areas of the
network where an incident is detected,” and includes an Intel Xeon E5-2660
processors and “monitoring ports.”31
Applicant argues “[w]hile the term ‘packet’ may have some significance in
‘computing’ in general, there is absolutely no evidence provided that Applicant’s
specific goods have anything to do with this particular type of computing, nor is there
any evidence provided to show that Applicant’s goods interact with or involve
packets.”32 “Applicant’s goods are used to monitor data in certain queues in a
network, e.g., voice, storage, email, etc. in order to allow the end user to re-route data
from one queue to another where there is a traffic build up to improve network
performance. Applicant’s goods are not tracking data packets in the system, but
rather monitor the network performance [to alleviate any potential network
congestion] and health of the network as a whole.”33 Applicant adds that its goods
“are used by OEM’s and others that run large data centers and date center networks”;

31 Feb. 20, 2018 Office Action, TSDR 93.
32 21 TTABVUE 2.
33 21 TTABVUE 7.
Serial No. 86678199
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and that in operation, Applicant’s goods break data down into various types and
based on that type, sends the data to a queue in the network.34
We discount much of Applicant’s argument because it is specific to its goods and
not goods of the type identified in Applicant’s application. Because there are no
particular limitations in the identification of goods, we must consider Applicant’s
identified goods as encompassing all of the types of goods named, to all types of
purchasers. Stone Lion Capital Partners, LP v. Lion Capital LLP, 76 F.3d 1317, 110
USPQ2d 1157, 1162 (Fed. Cir. 2014); (“It was proper, however, for the Board to focus
on the application … rather than on real-world conditions, because ‘the question of
registrability of an applicant's mark must be decided on the basis of the identification
of goods set forth in the application.’”); In re Dixie Rests., Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); In re Bercut-Vandervoort & Co., 229 USPQ 763,
764-65 (TTAB 1986). The evidence in the record indicates that the identified goods
are not limited in purpose and function as described by Applicant.

34 21 TTABVUE 3.
Serial No. 86678199
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Applicant also argues that its goods are “used to monitor and understand data
path latency35 in a system” rather than track the flow of packets.36 It explains:
Data path latency describes a “time stamp” system in a
network, whereby data is monitored from its entry into a
network port and time stamped as it moves through the
network at different points. … Each of these data types will
enter the system separately. By monitoring the time
stamps of each of the data types from entry to a certain
point in the network, an end user can monitor how quickly
or slowly the data has moved inside the network. It will
then allow the end user to determine how to reroute the
data so that it can move more quickly throughout the
system. Applicant’s goods provide a manner by which an
end user can statistically distribute a data path and equal
balance the data on a network load. Applicant’s goods allow
an end user to balance the resource utilization in a network
by monitoring the queues, data ports and how they are
using the network. Applicant’s goods do not monitor or
track packets. They only monitor the network utilization of
the data through ports, queues and other systems in the
network to re-balance the traffic flowing through it.37

35 Webster's New World Telecom Dictionary (Wiley Publishing, Inc. 2010) (accessed at
http://www.yourdictionary.com/latency), defines “latency” as:

Delay. The total time required for a signal to travel from one
point to another, generally from a transmitter through a
network to a receiver. … Latency … is affected by any processing
time associated with devices such as repeaters, transponders,
concentrators, multiplexers, switches, and routers as they
variously transmit and retransmit, amplify and reamplify, time
and retime, shape and reshape, code and decode, compress and
decompress, encrypt and decrypt, and otherwise process signals
and manipulate data. Latency also is affected by any time that
data packets spend in queues due to issues of network
congestion and any time required to retransmit packets errored
or lost in transit.
We take judicial notice of this definition.
36 21 TTABVUE 5.
37 21 TTABVUE 5-6.
Serial No. 86678199
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We see little difference between a tracking function and a monitoring function as
they pertain to these goods. As noted earlier in this opinion, “tracker” is defined in
The Oxford [U.S.] English Dictionary as “a device that follows and records the
movements of … something” and “monitor” is defined in the American Heritage
Dictionary of the English Language (5th ed. 2016) as “to keep track of systematically
with a view to collecting information: monitor the bear population of a national park;
monitored the political views of the people.”38 In addition, we do not see a notable
difference between Applicant’s goods which monitor timestamps and the PktTrace
system which collects and monitors timestamps at various points in the data path to
detect possible packet loss and processing latency.39
Turning now to Applicant’s evidence, the Google search results40 for the wording
“packet tracker” which resulted in no hits has limited probative value because we
have no information on the Google database and how Google's algorithm operates. In
addition, a term need not be in common use in an industry to be descriptive, and the
mere fact that an applicant is the first to use a descriptive term in connection with
its goods, does not imbue the term with source-identifying significance. In re Hunter
Fan Co., 78 USPQ2d 1474, 1476 (TTAB 2006) (citing In re National Shooting Sports
Foundation, Inc., 219 USPQ 1018, 1020 (TTAB 1983) (the fact that the applicant may
be the first to use a merely descriptive designation does not “justify registration if the

38 https://www.thefreedictionary.com/monitor. We take judicial notice of this definition.
39 November 10, 2016 Office Action, TSDR 29.
40 Jan. 30, 2018 Req. for Recon., TSDR 13.
Serial No. 86678199
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term projects only merely descriptive significance.”)). With regard to the
registrations41 for marks with the non-disclaimed term TRACKER, we note that the
goods in these registrations are not the same goods set forth in Applicant’s
identification of goods. In addition, as has been often stated, the Board is not bound
by prior decisions of Examining Attorneys, and each case must be decided on its own
merits and on the basis of its own record, in accordance with relevant statutory,
regulatory and decisional authority. See, e.g., In re Int’l Flavors & Fragrances Inc.,
183 F.3d 1361, 51 USPQ2d 1513 (Fed. Cir. 1999); In re Cooper, 254 F.2d 611, 117
USPQ 396, 401 (CCPA 1958) (“the decision of this case in accordance with sound law
is not governed by possibly erroneous past decisions by the Patent Office”); In re
BankAmerica Corp., 231 USPQ 873, 876 (TTAB 1986) (“Section 20 of the Trademark
Act, 15 USC §1070, gives the Board the authority and duty to decide an appeal from
an adverse final decision of the Examining Attorney. This duty may not and should
not be delegated by the adoption of conclusions reached by Examining Attorneys on
different records.”).
In sum, the evidence demonstrates that switches, including Ethernet switches,
and “microprocessors, namely, networking chips,” are used in the tracking of packets
transmitted across a network; and the packet-tracking software discussed in the
evidence “enables the search of a database to find specific computing or networking
events or generic computing or networking transaction logs and software for visibility
and instrumentation.” The combination of PACKET and TRAKKER does not evoke a

41 Jan. 30, 2018 Req. for Recon., TSDR 14-22.
Serial No. 86678199
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new and unique commercial impression; Applicant has not identified any new and
unique commercial impression and we find that each component retains its merely
descriptive significance in relation to the goods. See e.g., In re Oppedahl & Larson
LLP, 71 USPQ2d at 1374. We therefore find that the proposed mark PACKET
TRAKKER for Ethernet switches, “microprocessors, namely, networking chips” and
“computer software that enables the search of a database to find specific computing
or networking events or generic computing or networking transaction logs and
software for visibility and instrumentation” is merely descriptive of a feature or
characteristic of such goods, namely, that the goods are involved in or assist with the
tracking of packets, and are integral components of packet trackers.
The refusal to register Applicant’s proposed mark under Section 2(e)(1) of the
Trademark Act is therefore affirmed.
II. Misdescriptive Refusal.
Because we have found that Applicant's proposed mark is merely descriptive of a
feature or characteristic of the goods, we need not reach the alternative ground for
refusal that Applicant's proposed mark is deceptively misdescriptive. In re Mueller
Sports Medicine, Inc., 126 USPQ2d 1584, 1590 (TTAB 2018).
Decision: The mere descriptiveness refusal to register Applicant’s proposed mark
is affirmed.