ChromTech Ltd

Trademark Trial and Appeal Board

Sep 27, 2005

No. 78219790 (T.T.A.B. Sep. 27, 2005)

Mailed: September 27, 2005
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re ChromTech Ltd
________

Serial No. 78219790
_______

ChromTech Ltd, pro se.

Leigh Case, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
_______

Before Hairston, Bucher and Kuhlke, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

An application has been filed by ChromTech Ltd to
register the mark CHIRAL-AGP for “chromatographic column
for scientific laboratory use.”1
Registration has been refused under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground
that applicant’s mark, when applied to the identified

1 Serial No. 78219790, filed February 27, 2003, alleging a date
of first use anywhere and a date of first use in commerce of June
1989.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 78219790
2
goods, is merely descriptive of them. When the examining
attorney made the refusal final, applicant filed a notice
of appeal. Both applicant and the examining attorney have
filed briefs, but an oral hearing was not requested.
The examining attorney maintains that applicant’s
goods “include a chiral selector, and that ‘AGP’ means
‘alpha1-acid glycoprotein’; a component of the goods.”
(8/19/03 Office action, p. 2). The examining attorney
argues that the combination of CHIRAL-AGP therefore merely
describes applicant’s goods.
In support of the refusal, the examining attorney
relies on the following statements from applicant’s
website:
CHIRAL-AGP (USP chiral column L41)

A chiral HPLC-column for direct resolution of
enantiomers

The chiral selector in the CHIRAL-AGP phase is
alpha1-acid glycoprotein (AGP). This very stable
protein has been immobilized onto spherical 5
micrometer silica particles. The protein
tolerates high concentrations of organic
solvents, high and low pH, and high temperatures.
The column is used in the reversed-phase and can
be used for direct resolution of enantiomers,
without derivation. The CHIRAL-AGP column
separates enantiomers of an extremely broad range
of drug compounds:

- amines (primary, secondary, tertiary, and
quaternary)
- acids (strong and weak)
Ser No. 78219790
3
- nonprotolytes (amides, esters, alcools, sulphoxides,
etc.)

CHIRAL AGP is most likely the column with the
broadest applicability of all chiral columns
available today.

In addition, the examining attorney submitted printouts of
the websites of Advanced Separation Technologies, Inc;,
Analytical Sales & Products, Inc.; J.T. Baker; and Bodman
Industries, which show that each of these companies offers
for sale “Chiral-AGP” columns. The examining attorney also
relies upon an excerpt from the online encyclopedia
Wikipedia. The excerpt is taken from the entry “Chirality
(chemistry)” and states, in relevant part, “In chemistry
(especially organic chemistry), a molecule is chiral (and
said to have chirality) if its overall structure and
overall three-dimensional configuration is always chiral in
accordance with the geometric definition (it can’t be
mapped to its mirror images) regardless of how the molecule
is conformed.” Further, the examining attorney submitted
the results of a search of “agp” from “Acronym Finder” that
shows “AGP” is an abbreviation for, inter alia, “alpha1-
acid glycoprotein.” The examining attorney also submitted
a printout taken from the “Chromatography Forum” Message
Board on the Internet which makes reference to a scientific
paper titled: “Transforming chiral liquid chromatography
Ser No. 78219790
4
methodologies into more sensitive liquid chromatography-
electrospray ionization mass spectrometry without losing
enantioselectivity.”
Applicant, in urging reversal of the refusal to
register argues that “[c]hiral is a common word in the
chemical nomenclature which can be used in many ways.”
Further, applicant contends that AGP is not a standard
accepted abbreviation of alpha1-acid glycoprotein. Rather,
according to applicant, there are many abbreviations for
alpha1-acid glycoprotein in scientific literature,
including AAG, AG, α; AG and α-GP. According to applicant,
authors of scientific articles create their own
abbreviations to avoid repeating the term alpha1-acid
glycoprotein. Thus, it is applicant’s contention that the
combined term CHIRAL-AGP is not descriptive of its goods.
With respect to the examining attorney’s evidence showing
use of CHIRAL-AGP by others, applicant states that it is
the only manufacturer of CHIRAL-AGP columns and these
companies are distributors of applicant’s goods. Further,
applicant contends that the Office has registered three
third-party “CHIRAL” marks which are similar to the one
sought to be registered by applicant. The marks are
CHIRALCEL for chromatography columns, CHIRALBEADS for
Ser No. 78219790
5
chemicals and analyzing chemicals, and CHIRALSELECT for
laboratory services.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act, if it forthwith conveys an immediate idea of
an ingredient, quality, characteristic, feature, function,
purpose or use of the goods or services. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
A term need not immediately convey an idea of each and
every specific feature of the applicant’s goods or services
in order to be considered merely descriptive; it is enough
that the term describes one significant attribute, function
or property of the goods or services. See In re
H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and In re
MBAssociates, 180 USPQ 338 (TTAB 1973).
Whether a term is merely descriptive is determined not
in the abstract, but in relation to the goods or services
for which registration is sought, the context in which it
is being used on or in connection with those goods or
services, and the possible significance that the term would
have to the average purchaser of the goods or services
because of the manner of its use or intended use. That a
term may have other meanings in different contexts is not
controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593
Ser No. 78219790
6
(TTAB 1979). 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 and services are
will understand the mark to convey information about them.”
In re Tower Tech Inc., 64 USPQ2d 1314 (TTAB 2002); see also
In re Home Builders Association of Greenville, 18 USPQ2d
1313 (TTAB 1990); and In re American Greetings Corporation,
226 USPQ 365 (TTAB 1985).
Applying these principles in the present case, we find
that the mark applicant seeks to register, CHIRAL-AGP, is
merely descriptive of the goods identified in the
application, “chromatographic columns for scientific
laboratory use.” It is clear from the evidence of record
that “chiral” is a term used in the chromatography field to
describe molecules. The encyclopedia excerpt of record
supports this conclusion.2 Additionally, applicant’s
website includes the following statement about applicant’s
chromatographic column: “The chiral selector in the

2 In this regard, we also judicially notice the following
definition from Hawley’s Condensed Chemical Dictionary (2001):

chiral: In chemistry this terms describes asymmetric
molecules that are mirror images of each other, i.e.,
they are related like right and left hands. Such
molecules are also called enantiomers and are
characterized by optical activity.
Ser No. 78219790
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CHIRAL-AGP phase is alpha1-acid glycoprotein (AGP). This
very stable protein has been immobilized onto spherical 5
micrometer silica particles.” The website of Advanced
Separation Technologies, Inc. states the following about
the chromatographic columns it sells: “Direct reversed
phase resolution of chiral molecules.” We find therefore
that the term CHIRAL merely describes a feature or
characteristic of applicant’s goods in that they are chiral
chromatographic columns.
Likewise, we find that AGP is merely descriptive of
applicant’s goods. It is clear from the statements at
applicant’s website that alpha1-acid glycoprotein is a
component of applicant’s goods. The acronym entry shows
that AGP is a shortened form or abbreviation for alpha1-
acid glycoprotein. That there may be other abbreviations
or symbols for alpha1-acid glycoprotein is of no moment.
The fact remains that AGP is one of such abbreviations and,
indeed on this record, appears to be the most frequently
used abbreviation for alpha1-acid glycoprotein in the field
of chromatography. Thus, AGP, considered in the context of
applicant’s goods, conveys that the chiral selector in such
goods is alpha1-acid glycoprotein.
The next question is whether the term CHIRAL-AGP
considered in its entirety is merely descriptive. When the
Ser No. 78219790
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terms CHIRAL and AGP are joined with a hyphen, the
resulting term CHIRAL-AGP immediately conveys to the
relevant purchasers that applicant’s goods are chiral
alpha1-acid glycoprotein columns. Nothing requires the
exercise of imagination, cogitation or mental processing or
gathering of further information in order for such
purchasers to readily perceive the merely descriptive
significance of the term CHIRAL-AGP as it pertains to
applicant’s goods.
Insofar as the third-party registrations are
concerned, as often noted by the Board, each case must be
decided on its own merits. The determination of
registrability of particular marks by the Trademark
Examining Groups cannot control the result in another case
involving a different mark. In re Nett Designs Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [“Even
if some prior registrations had some characteristics
similar to [applicant’s application], the PTO’s allowance
of such prior registrations does not bind the Board or this
court.”].
Finally, with respect to applicant’s argument that it
is the only manufacturer of CHIRAL-AGP columns, it is well
settled that the fact that an applicant may be the first or
only user of a term does not justify registration of the
Ser No. 78219790
9
term where the only significance projected by the term is
merely descriptive, as we find to be the case here. See In
re National Shooting Sports Foundation, Inc., 219 USPQ 1018
(TTAB 1983).
In sum, we find that CHIRAL-AGP directly and
immediately informs the purchasers of applicant’s
chromatography columns that they are chiral alpha1-acid
glyprotein columns.
Decision: The refusal to register under Section
2(e)(1) is affirmed.