Cox Enterprises, Inc.

Trademark Trial and Appeal Board

Jan 12, 2007

No. 76591278 (T.T.A.B. Jan. 12, 2007)

Hearing: September 14, 2006 Mailed: January 12, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Cox Enterprises, Inc.
________

Serial No. 76591278
_______

Mitchell H. Stabbe and Kristi Thompson of Dow Lohnes PLLC for Cox
Enterprises, Inc.

Jean H. Im, Trademark Examining Attorney, Law Office 101 (Ronald
R. Sussman, Managing Attorney).
_______

Before Holtzman, Zervas and Walsh, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by Cox Enterprises, Inc. to
register the mark THEATL (in standard character form) for the
following goods:1
printed matter, namely, magazines, a weekly newspaper and a
section of a newspaper in the fields of general and local,
national and international news, directory type listings of
businesses and organizations, shopping, retail sales,
movies, theater, television and radio programs, sporting
events, concerts, museums, exhibitions and festivals, and

1 Serial No. 76591278; filed May 10, 2004 on the basis of a bona fide
intention to use the mark in commerce.
THIS OPINION IS
A PRECEDENT OF
THE TTAB
Ser. No. 76591278
2
sights and attractions of interest to residents of and
tourists and visitors to Atlanta, Georgia, in Class 16.

The trademark examining attorney has refused registration
under Section 2(e)(1) of the Trademark Act on the ground that
applicant's mark is merely descriptive of applicant's goods.
When the refusal was made final, applicant appealed. Briefs
have been filed. An oral hearing was held.
The examining attorney contends that the mark THEATL is the
equivalent of THE ATL, a recognized nickname for the city of
Atlanta, and that the mark is merely descriptive of the subject
matter of applicant's publications. The examining attorney has
made of record a number of printouts from Internet websites each
of which contains a reference to THE ATL.
While acknowledging that the websites submitted by the
examining attorney "show[] some use of the phrase 'THE ATL' to
refer to Atlanta," applicant argues that there is no evidence
"showing that the unitary mark THEATL has such a meaning."
Brief, p. 6. Applicant argues that the mark THEATL, as a whole,
does not make the same commercial impression as THE ATL as two
separate words and will not necessarily be understood by
consumers as two separate words. It is applicant's position that
because the mark is presented as a compound term with no
separation of the letters "THE" from the letters "ATL," it is
just as likely that consumers will interpret the mark "as a
Ser. No. 76591278
3
unitary, non-sensical word sounding like 'thee-AT-el' (rhyming
with 'Seattle') or 'theet-el' (rhyming with 'beetle')...".
Brief, p. 6, italics in original. Applicant concludes that the
combination of THE and ATL is not descriptive, reasoning that the
consumer viewing the mark
...must first realize that the mark contains two
elements rather than one (which is not immediately
obvious...), and then must interpret one or both
elements to stand for "ATLANTA." Only after making
this two-step leap in imagination can consumers draw
out a descriptive element from the mark. Brief, p.
11.

Applicant further argues that even if consumers view the
mark THEATL as THE ATL and then recognize the term as referring
"Atlanta," the term is "too broad in scope to function as a
description of the subject matter of Applicant's publication."
Brief, p. 7. Applicant notes that the publication "is likely to
contain articles on a wide variety of subjects or relating to
geographic areas far outside and wholly unrelated to Atlanta,"
arguing that "readers in Atlanta are likely to be interested in
articles on [for example] Southern-style restaurants in New York
City, of which little or none of the content might make reference
to Atlanta"; and also that the description of goods "specifically
contemplates a non-Atlanta[-]specific, broad scope of topics,
including, for example, 'national and international news.'"
Brief, pp. 9-10, italics in original.

Ser. No. 76591278
4
A term is merely descriptive within the meaning of Section
2(e)(1) if it immediately conveys knowledge of a significant
quality, characteristic, function, feature or purpose of the
goods with which it is used, or intended to be used. In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). The
question of whether a particular term is merely descriptive must
be determined not in the abstract or on the basis of guesswork,
but in relation to the goods for which registration is sought,
and the context in which the term is used, or is intended to be
used. In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215
(CCPA 1978); and In re Remacle, 66 USPQ2d 1222 (TTAB 2002).
Furthermore, descriptiveness must be determined from the
perspective of the relevant class or classes of potential
purchasers for applicant's goods. See In re Omaha National
Corporation, 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987). See
also In re Nett Designs Inc., 236 F.3d 133, 957 USPQ2d 1564, 1566
(Fed. Cir. 2001) ("The perception of the relevant purchasing
public sets the standard for determining descriptiveness.")
As described in applicant's identification of goods,
applicant's publications feature, among other things, news and
information "of interest to residents of and tourists and
visitors to Atlanta, Georgia." Thus, at least one class of
relevant purchasers for applicant's publications are residents of
Atlanta and visitors to the Atlanta area, and we consider whether
Ser. No. 76591278
5
the mark is descriptive from the perspective of those consumers.
See, e.g., In re Omaha National Corporation, supra (the
descriptive meaning of FIRSTIER in the banking field would be
understood at least by applicant's corporate customers, if not
its individual customers).
The website evidence submitted by the examining attorney
shows, and applicant does not appear to dispute, that the term
THE ATL would be recognized by Atlanta residents and visitors to
the city as a nickname for Atlanta. The evidence includes pages
from a variety of commercial websites targeting their goods and
services to the Atlanta community. The use of THE ATL on these
websites demonstrates exposure of the term to the relevant
consumers and their understanding of the term as a reference to
Atlanta. Examples of these web pages with pertinent quoted
portions are described below (emphasis added):
http://955thebeat.com: "95.5 THE BEAT - The online
Beat of Atlanta" provides online music and information
about local music events, one of which is to take
place at "Club 95-5." The announcement states, "Join
95-5 The Beat every Saturday Night 'LIVE' at Mama's
Prime Time for Club 95-5, DJ KIDD spins all night long
with the best mix in the ATL!"

www.mixtapesusa.com: "MIXTAPES USA" offers CDs mixed
by Atlanta DJs. Under the heading "Welcome to
Atlanta::Best of the ATL - DJ Smaltz mixtape CD" the
website states, "'Welcome To Atlanta' is an all out
air assault from the most exclusive singles and
freestyles in the ATL to the hottest joints gettin'
air play around the U.S."

Ser. No. 76591278
6
www.nba.com: "The Official Site of the ATLANTA HAWKS"
contains an article about a new player to the Atlanta
basketball team with the headline "Welcome To The ATL"
- "All of a sudden, Atlanta is Al Harrington's town."

www.3rdwavehotspot.com: "Wireless Hotspot from 3rd
Wave," provides free wireless hotspots in Atlanta and
is soliciting additional locations from local business
owners in that area stating: "We want you to be able
to go just about anywhere you'd like in the ATL and
find a free 3rd Wave hotspot."

http://forums.turnersouth.com: "TURNER SOUTH - FIND
YOUR SOUTH," provides information on travel,
entertainment and events, and a forum for user
comments and reviews. This page features "Favorite
Southern Getaways - Atlanta" under the heading "Best
attractions in the ATL"

A number of the web pages submitted by the examining
attorney show use of THE ATL by consumers, providing direct
evidence of consumers' familiarity with the term and their
understanding of the term's significance (emphasis added):
http://atlanta.metblogs.com: "Welcome to
METROBLOGGING ::Atlanta::" The page of this blog site
announces an upcoming "robotics" event in Atlanta
under the heading "Red Hott Nerd on Nerd Action in the
ATL." The notice states, "See the Georgia Dome
explode on April 21st through 23rd as nerdies clash
head-to-head with tricked out robots burning ten
billion watts of power!! ..."

www.tripsmarter.com: "TRIPSMARTER.COM Way More Than A
City Guide" provides a guide to Atlanta events and a
forum for user comments and questions. In the user
forum on the page entitled "Atlanta Special Events
Calendar" one reviewer writes, "What's going on in the
ATL?? It's my hometown, but it's been over 2 months
since I've been to visit..."

www.digitalcity.com: "AOL cityguide Atlanta" lists,
under the heading "City's Best," "Club 112...the hip-
hop spot where the playas play," and contains the
Ser. No. 76591278
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following user review [as written]: "ALL TOGETHER I
visited the ATL and it was not what people made out to
be it was dirty bummy I would have perferred to go to
Savannah...". Another reviewer writes, under the
heading "love the group hate the club," "Once upon a
time 112 was the most banging joint in the ATL. ..."

www.sing365.com: This site provides song lyrics and
downloads. The lyrics for a song called "Calling All
Zones" by Ying Yang Twins contains two references to
"THE ATL" (only one of which is publishable), "You got
a one way ticket to hell, Smack dab in the middle of
the ATL, ..."

www.msu.edu: The page entitled "Dancer's Delight,"
under the heading "Scenes," contains the following
post [as written]: "I got into the underground dance
scene in the ATL (Atlanta, GA) back in 1986 when I
moved to ATL for college. ... I toured for awhile and
met alot of dancers in other cities, but I honestly
didn't think that anyplace had it going on like the
ATL."

www.ruhooked.com: "2005 SHIMANO Fishing Tour"
features a journal entry by one participant who
writes, "We hit the road for the ATL that night & made
it to Durham, NC. Woke up the next morning and made
it back to the dirty south and my hometown. It was
nice spending the week back in the ATL, and we got to
fish beautiful Lake Sidney Lanier just north of
Atlanta, GA. ..."

http://atlanta.craigslist.org: This website provides
online classified services. Under the "Atlanta"
listings there is a heading for "women seeking men >
New to the ATL" followed by 22 posts.

It is clear from the evidence that THE ATL would be
understood by the intended readers of applicant's publications as
a nickname for the city of Atlanta. We also note that there is
no evidence of record that THE ATL has another meaning or would
be perceived as anything other than a reference to Atlanta.
Ser. No. 76591278
8
Furthermore, the term THE ATL describes a significant
feature or characteristic of applicant's publications. As
identified, applicant's publications will feature, at least in
part, news, activities, events and attractions "of interest to
residents of and tourists and visitors to Atlanta, Georgia."
Thus, when viewed in the context of applicant's goods, THE ATL
would immediately and directly inform purchasers about the
subject matter of applicant's goods, namely news and information
about Atlanta.
Applicant's mark THEATL is simply a compressed version of
the descriptive term THE ATL without a space between the two
words. Without the space, THEATL is equivalent in sound, meaning
and impression to THE ATL and is equally descriptive of
applicant's goods. We disagree with applicant that the single
word creates a new meaning or a nonsensical expression or that it
changes the commercial impression of the term in any significant
way. It is conceivable that the term THEATL may seem curious or
even nonsensical to consumers who are not residents of or
tourists or visitors to Atlanta, but those consumers are not the
prospective purchasers for applicant's publications and their
perception would not be relevant.2 In re Abcor Development

2 In this regard, the present case is distinguishable from In re Trans
Continental Records Inc., 62 USPQ2d 1541 (TTAB 2002) which applicant's
attorney cited at the oral hearing. In Trans Continental, the Board
reversed the refusal to register O-TOWN for a musical group and pre-
recorded music as a geographically descriptive nickname for Orlando.
Ser. No. 76591278
9
Corp., supra at 218 ("The perception of the mark to
nonprospective purchasers would be irrelevant."). The relevant
potential purchasers for applicant's publications are residents
of and tourists and visitors to Atlanta who, as the evidence
shows, would be familiar with the phrase THE ATL and understand
its meaning. Considered from the perspective of those
purchasers, the term THEATL, appearing on a publication that
features news and information about Atlanta, would logically and
rationally be perceived and vocalized as the familiar nickname
for Atlanta rather than a nonsensical term.
Contrary to applicant's apparent contention, the fact that
there is no evidence of use by others of THEATL as a single term
does not compel a finding that the mark is not descriptive. It
is not necessary that the evidence show use by others in the
exact manner in which it is displayed as a mark. See In re SPX
Corp., 63 USPQ2d 1592 (TTAB 2002). The point is that the
evidence in this case shows use of the very combination of terms
applicant is seeking to register. Further, the cases applicant

The Board found, based on the record, that O-TOWN, while perhaps
recognized as a geographic nickname in Orlando and parts of Florida,
would be an obscure geographic term to consumers elsewhere in the
country. In the present case, however, applicant's goods are directed
to a particular segment of the general public, consumers in Atlanta.
Thus, the perception of THEATL to consumers elsewhere in the country is
irrelevant. We also note that applicant does not make the argument
that THE ATL is an obscure term, known only to a small segment of the
general public, and in any event, we have found that the term would be
well understood among the relevant universe of consumers for
applicant's goods.
Ser. No. 76591278
10
relies on to support its contention, including Firestone Tire &
Rubber Co. v. Goodyear Tire & Rubber Co., ___ F.2d___, 189 USPQ
348 (CCPA 1976) and Nife Incorporated v. Gould-National
Batteries, Inc., 128 USPQ 453 (TTAB 1961), have been
misinterpreted by applicant. In Firestone, the term BIASTEEL was
held not merely descriptive of tires, and in Nife, the term NICAD
was held not merely descriptive of "nickel cadmium" batteries.
The finding in each case was based on the lack of evidence of
descriptive use of the two words together to describe the
particular goods, not whether there was use of the combined terms
in the exact form in which they were presented. The marks in
those cases happened to be presented as a single term but the
presence or absence of a space between the two words was not a
factor in either decision.
In fact, numerous cases have held that telescoping two words
which as a whole are merely descriptive of the goods into a
single term does not avoid a finding of mere descriptiveness for
the combined term. See, for example, In re Omaha National, supra
(FIRSTIER, the equivalent of "first tier," is merely descriptive
of banking services); In re A La Vieille Russie Inc., 60 USPQ2d
1895, 1897, n. 2 (TTAB 2001) ("the compound term RUSSIANART is as
merely descriptive as its constituent words, 'Russian art.'"); In
re U.S. Steel Corp., 225 USPQ 750 (TTAB 1985) (SUPEROPE merely
descriptive of wire rope); In re Gagliardi Bros., Ind., 218 USPQ
Ser. No. 76591278
11
181 (TTAB 1983) (BEEFLAKES is merely descriptive of thinly sliced
beef); and In re Orleans Wines, Ltd., 196 USPQ 516 (TTAB 1977)
(BREADSPRED is merely descriptive of jellies and jams).
We must also consider that applicant's mark, presented in
typed or standard character form, is not limited to any special
form or style as displayed on its goods. Phillips Petroleum Co.
v. C.J. Webb, Inc., 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971)
("The drawing in the instant application shows the mark typed in
capital letters, and ... this means that [the] application is not
limited to the mark depicted in any special form."). See also
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1847-48 (Fed. Cir. 2000) (typed drawings are not limited to any
particular rendition of the mark); and INB National Bank v.
Metrohost, 22 USPQ2d 1585, 1588 (TTAB 1992). It is clear from
these cases that when a mark is presented in typed or standard
character form, the Board must consider all reasonable manners in
which applicant could depict its mark. For example, applicant's
mark could reasonably be depicted as "theATL" with the term THE
in smaller print or type and the letters ATL in much larger
print, thereby creating a visual separation between the two
terms. See, for example, Phillips Petroleum, supra at 36 ("we
must not be misled by considering [applicant's] mark only in its
printed or typewritten form, with all the characters being of
equal height.")
Ser. No. 76591278
12
Applicant's arguments that the subject matter of its
publications is too diverse or broad in scope to be descriptive,
and that the publications may also contain other subject matter
that does not relate specifically to Atlanta, such as national or
international news, are not relevant. The relevant point is that
THEATL is descriptive of that portion of the subject matter which
admittedly does relate specifically to Atlanta. See, e.g.,
Roselux Chemical Co., Inc. v. Parsons Ammonia Company, Inc., 299
F.2d 855, 132 USPQ 627, 634 (CCPA 1962) (finding SUDSY generic
for ammonia products notwithstanding that "some of the so-called
'sudsy' [ammonia] products marketed by opposers were not in fact
sudsy because they contained no detergent.").3
Finally, we note that applicant has cited a number of cases
which, according to applicant, support its contention that the
mark in this case is not descriptive. Suffice it to say that the
cited cases involve facts that differ markedly from the facts in
the present case and thus, do not compel a finding that the mark
herein is not descriptive. See Firestone Tire & Rubber Co.,
supra at 350 ("prior decisions in this area are not very helpful

3 In further support of registrability, applicant points to the
asserted inconsistent treatment of its related application (Serial No.
76562979) for the same mark in Classes 35, 39, 41 and 43. Applicant
notes that the related application was allowed for publication and that
a notice of allowance issued on June 21, 2005. However, as the
examining attorney stated at the oral hearing and the Office records
confirm, the notice of allowance for that application was cancelled on
December 21, 2005 and the application was returned to the examining
attorney for further examination.
Ser. No. 76591278
13
in deciding the issue of descriptiveness"). See also In re Quik-
Print Copy Shop, Inc., 616 F.2d 523, 205 USPQ 505, 507 (CCPA
1980) ("it is well established that each case...stands on its own
facts, and prior decisions are of little value.").
In view of the foregoing, we find that THEATL is the
equivalent of THE ATL, a recognized nickname for Atlanta, and
that the mark is merely descriptive of the subject matter of
applicant's publications that feature news and information of
interest to residents of and tourists and visitors to Atlanta.
Decision: The refusal to register under Section 2(e)(1) of
the Trademark Act is affirmed.