CloudTree, Inc.

Trademark Trial and Appeal Board

Aug 13, 2013

No. 85524715 (T.T.A.B. Aug. 13, 2013)

Mailed: August 13, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re CloudTree, Inc.
________

Serial No. 85524715
_______

Matthew H. Swyers of The Trademark Company for CloudTree,
Inc.

Kathleen Kearney, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______

Before Holtzman, Cataldo and Taylor,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, CloudTree, Inc., seeks registration on the
Principal Register of the standard character mark CLOUD-
NATIVE for “downloadable software for management of cloud
databases and cloud datastores,” in International Class 9.1
Applicant appeals the final refusal of registration on
the ground that the mark is merely descriptive of the

1 Application Serial No. 85524715 was filed on January 25, 2012
based on an allegation of a bona fide intent to use the mark in
commerce.
THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB
Ex Parte Appeal No. 85524715

2
identified goods. Trademark Act § 2(e)(1); 15 U.S.C.
§ 1052(e)(1).
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the goods or services with
which it is used. See, e.g., 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,
1009-10 (Fed. Cir. 1987). Whether a particular term is
merely descriptive is determined in relation to the goods
or services for which registration is sought and the
context in which the term is used, not in the abstract or
on the basis of guesswork. In re Abcor Dev. Corp., 588
F.2d 811, 200 USPQ 215, 218 (CCPA 1978); and In re Remacle,
66 USPQ2d 1222, 1224 (TTAB 2002). In other words, the
issue is whether someone who knows what the goods or
services are will understand the mark to convey information
about them. DuoProSS Meditech Corp. v. Inviro Medical
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); In re Patent & Trademark Servs. Inc., 49
USPQ2d 1537, 1539 (TTAB 1998); In re Home Builders Ass’n of
Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990); and In re Am.
Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). “On the
Ex Parte Appeal No. 85524715

3
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
MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780
(Fed. Cir. 2003); In re Tennis in the Round, Inc., 199 USPQ
496, 497 (TTAB 1978); In re Shutts, 217 USPQ 363, 364-65
(TTAB 1983); and In re Universal Water Sys., Inc., 209 USPQ
165, 166 (TTAB 1980).
In support of the refusal, the examining attorney made
of record the following definition of “cloud” -
a.k.a the cloud – which refers to a style of
computing in which dynamic, scalable and virtual
resources are provided over the Internet. Known
as cloud computing, it refers to services that
provide common business applications online,
which are accessed from a Web browser, while the
software and data are stored on the servers.2

The examining attorney also made of record articles
retrieved from Internet webpages, reflecting use of CLOUD-
NATIVE by third parties. Excerpts from these webpages
follow (emphasis added):
What makes a ‘cloud native’ application?
Cloud computing has a lot to offer a service-
oriented architecture. … But to get the most
bang for your buck out of cloud computing, your
application infrastructure needs to be optimized
for these sorts of architectures…. In other

2 Netlingo.com

Ex Parte Appeal No. 85524715

4
words, the application infrastructure needs to be
designed for a cloud environment rather than
packaged up and ported onto it.3

A Cloud Native Application is architected and
designed to run on what is commonly referred to
as a cloud IaaS or Paas. … It is architected and
designed to run in the cloud from the beginning.4

Cloud Native
In other words, what do middleware and
applications need to do to be “Cloud Native.”
… If a system is distributed then it can be made
to be elastic. This seems to be the attribute of
cloud native that everyone thinks of first. …
A cloud native application or middleware needs to
be able to support multiple isolated tenants
within the system. This is the ability of
Software-as-a-Service to handle multiple copies
of an application each in a Virtual Machine. …
I strongly believe that it is only once a system
really implements these attributes that it starts
to give the full benefits of running in a cloud.
And the benefits of “Cloud Native” systems are
immense: better utilization of resources, faster
provisioning, better governance. It’s probably a
whole ‘nother blog post to go into the full
benefits of having cloud native software!5

Cloud Native Applications
I’ve always believed that cloud computing is
really two things. One, it is a technology
architecture. Two, it is a business operating
paradigm that we often call on-demand. Your
application must satisfy the on-demand business
model requirements, satisfy the technical
architecture requirements to be a cloud native
application. There are not very many cloud
native applications running in the world today.
This is changing quickly.

3 Itknowledgeexchange.techtarget.com
4 Productionscale.com
5 Prz.fremantle.org
Ex Parte Appeal No. 85524715

5
I think that Cloud Native Applications are
essentially distributed computing applications.6

Applicant, for its part, made of record dictionary
definitions of “cloud” and “native” that are unrelated to
computer goods as well as copies of third-party
registrations containing the term CLOUD or NATIVE, but not
both, for various computer goods. These include
registrations for the marks CLICK TO CLOUD; CLOUDLINK;
CLOUDSWITCH; CLOUDSIGMA; CLOUDBURST, CLOUDFUZION; DEVICE
NATIVE (DEVICE disclaimed); NATIVAS; WEBNATIVE; and NATIVE
UNION.
In this case, applicant’s mark is CLOUD-NATIVE and the
goods identified in the application are “downloadable
software for management of cloud databases and cloud
datastores.” The examining attorney’s evidence supports a
finding that the term “cloud native” or “cloud-native”
merely describes computer software designed to provide
business applications on the Internet, with data itself
stored on servers. Thus, we find that, as applied to
applicant’s goods, the term CLOUD-NATIVE would immediately
describe, without conjecture or speculation, a significant
characteristic or feature of such goods, namely, that they
manage databases and datastores for cloud computing

6 Productionscale.com
Ex Parte Appeal No. 85524715

6
applications. In addition, the Internet articles submitted
by the examining attorney establish that the ability of the
goods identified by applicant’s CLOUD-NATIVE mark to manage
databases and datastores of information obtained over the
Internet through cloud computing is a desirable and central
feature thereof. Material obtained from the Internet is
acceptable in ex parte proceedings as evidence of potential
public exposure to a term. See In re Fitch IBCA, Inc., 64
USPQ2d 1058 (TTAB 2002).
We note that the descriptive nature of applicant’s
mark as applied to its goods is not diminished by the fact
that the term comprising the mark may also have other
meanings unrelated to those goods. That a term may have
other meanings in different contexts is not controlling.
In re Bright-Crest, Ltd., 204 USPQ at 593. We further note
that we have considered the third-party registration
evidence submitted by applicant. These registrations,
containing the terms CLOUD or NATIVE, with or without a
disclaimer thereof, cover a wide range of computer goods,
some of which are related to the goods involved in this
application. These registrations are not of assistance in
determining whether the mark CLOUD-NATIVE is merely
descriptive, particularly inasmuch as we do not know the
reason for the treatment of the term “CLOUD” or “NATIVE” in
Ex Parte Appeal No. 85524715

7
each. In re International Taste Inc., 53 USPQ2d 1604, 1606
(TTAB 2000) (“With respect to third-party registrations
which include disclaimers...we do not have before us any
information from the registration files as to why an
Examining Attorney required and/or why the
applicant/registrant offered such disclaimers.”). See 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.”); and In re Scholastic Testing
Service, Inc., 196 USPQ 517 (TTAB 1977).
We have carefully considered all of the evidence and
argument of record, including any which we have not
specifically addressed. Based upon the evidence, we
conclude that applicant’s mark, CLOUD-NATIVE, is merely
descriptive of its identified goods. Trademark Act
§ 2(e)(1).
Decision: The refusal to register is affirmed and
registration to applicant is refused.