EBCO, Inc.

Trademark Trial and Appeal Board

Mar 27, 2015

No. 85894991 (T.T.A.B. Mar. 27, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: March 27, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re EBCO, Inc.
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Serial No. 85894991
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Matthew H. Swyers of The Trademark Company,
for EBCO, Inc.
Charles H. Hiser IV1, Trademark Examining Attorney, Law Office 112,
Angela Wilson, Managing Attorney.
_____

Before Bucher, Taylor and Wellington,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
EBCO, Inc. (“Applicant”) seeks registration on the Principal Register of the mark
LOCKDOWN MAGNET (the word “Magnet” disclaimed), in standard character
format, for “magnets” in International Class 9.2

1 Brittany A. Estell was the Examining Attorney responsible for the application prior to
briefing.
2 Application Serial No. 85894991 was filed on April 4, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C § 1051(b).
Serial No. 85894991
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The Trademark Examining Attorney finally refused registration on the ground
that LOCKDOWN MAGNET is merely descriptive of the identified goods under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1).
Applicant appealed to this Board, and both Applicant and the Examining
Attorney filed briefs. We affirm.
Arguments and Evidence
Applicant, while conceding that the word “magnet” in its mark LOCKDOWN
MAGNET is generic and further noting that it was disclaimed in the initial
application,3 maintains that its mark, as a whole, is suggestive of the identified
goods, and that “the ‘mental link’ between the mark LOCKDOWN MAGNET and
Applicant’s goods as recited in the application is neither immediate nor
instantaneous.” Br. p. 12.4. Applicant explains:
When presented with the term LOCKDOWN in
connection with magnets, the term conveys the idea of
safety, or that of keeping someone or something confined
inside of a particular room or building. The term does not,
however, immediately convey or necessarily describe an
object that is used to replace a door key for ease-of-use in
school classrooms, as the Examining Attorney has cited.
Conversely, the Examining Attorney maintains that “Applicant’s mark is
descriptive of a magnet with the sole advertised purpose of be [sic] used to help
effectuate a lockdown proceeding.” Ex. Atty. Br. unnumbered p. 4.5 He points to
Applicant’s concession that the word “Magnet” is generic and, with regard to the

3 Br. p. 13. TTABVue 14.
4 4 TTABVue 13.
5 6 TTABVue 5.
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word LOCKDOWN and the term LOCKDOWN MAGNET, has made the following
evidence of record:
1. Dictionary definitions
Lockdown is defined as:
(US) a security measure in which those inside a building
such as a prison, school, or hospital are required to
remain confined in for a time → many schools remained
under lockdown yesterday.6
A protocol followed in an emergency that involves
confining people in a secure place, such as the
confinement of prison inmates in cells after a disturbance,
or the locking of students and teachers in classrooms after
a violent attack.7
2. Internet evidence
a. The Examining Attorney attached to the initial Office action copies of
webpages showing that the term “lockdown” is commonly used in connection with
magnets to refer to a method of securing doors by use of a magnetic strip, usually
for school safety.8 This evidence resulting from a Google search shows various

6 This definition, attached to Office Actions dated Aug. 6, 2013 and March 5, 2014, is taken
from the Collins World English Dictionary, http://www.collinsdictionary.com/dictionary/
english/lockdown. We observe that this website allows the user to choose between “English
Worldwide” and “American English” definitions. However, the Trademark Examining
Attorney utilized the “English Worldwide” definition in this case, which despite the
parenthetical (US) does not necessarily reflect usage in the United States.
7 In order to confirm that we have the correct meaning ascribed to the term in the United
States, we take judicial notice of this additional definition of “lockdown,” based upon The
American Heritage Dictionary of the English Language, 5th ed. (2014) retrieved at
https://www.ahdictionary.com/word/search.html?q=lockdown. The Board may take judicial
notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co.,
213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including
online dictionaries that exist in printed format or have regular fixed editions. In re Red Bull
GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
8 Attachments to the Office Action dated August 6, 2013.
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providers of magnets used to “lock down” rooms without the use of keys. Examples
of record from this search include the following webpages:
Master Grinding & Security, LLC produces “lockdown
magnets” which allow teachers to lockdown a classroom
through use of a magnetic strip9
Montville PBA donated magnets to local schools that
would allow teachers alternative means to lock their doors
for “faster school lockdowns”10
Edu-Care provides a “lockdown magnet” for door jambs to
“keep your door locked at all times without students being
locked out”11
b. The Examining Attorney attached to the final Office action excerpts from
websites showing the term “lockdown” used in association with security products to
be used to secure schools during lockdown security situations.12 For example, the
Tempshield website13 features magnet rubberized material that attaches to metal
doors and covers classroom door windows providing an immediate blackout effect
for “safer and faster school lockdowns”; the CinchLock website14 features steel
personal door locks for “personal safety for lockdown situations”; the website of
McMar Design LLC15 features the “JAMBLOCK™ SAFETY SYSTEM, which is
described as a “crisis lockdown safety device” of “lightweight crafted steel that will

9 http://lockdownmagnets.com/.
10 http://montville.patch.com/groups/police-and-fire/p/pba-donates-magnets-forfaster-school-
lockdowns.
11 http://www.educareschoolsupply.com/go-kitmagnet.html.
12 Attachments to the Final Office Action dated March 5, 2014.
13 http://tempshieldschools.com/.
14 http://www.cinchlock.com/.
15 http://www.lockdownschools.com/about/.
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secure virtually any door in seconds”; an article from American School &
University16 website discusses school security product solutions that may be used
during a school lockdown – which “[s]ome schools define a lockdown as securing all
exterior school doors” while “others add classrooms doors to the exterior or the
cafeteria, library and gymnasium” – including, for example, bullet resistant doors,
electronic cylinder locks, and emergency backpacks containing emergency supplies
for sheltering in place; and the website of LOCKSMITH LEDGER International17
discusses classroom and lockdown security solutions from ASSA ABLOY, including,
e.g., locks that may be secured from inside a classroom and electronic lockdown
capability.
Applicable Law
The test for determining whether a mark is merely descriptive is whether it
immediately conveys information concerning a significant quality, characteristic,
function, ingredient, attribute or feature of the product or service in connection with
which it is used, or intended to be used. See, e.g., In re Chamber of Commerce of the
U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (internal citations
omitted). See also In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370,
1371 (Fed. Cir. 2004), quoting, Estate of P.D. Beckwith, Inc. v. Commissioner, 252
U.S. 538, 543 (1920) (“A mark is merely descriptive if it ‘consist[s] merely of words
descriptive of the qualities, ingredients or characteristics of the goods or services

16 http://asumag.com/security/school-security-product-solutions-200909.
17 http://www.locksmithledger.com/article/11142506/classroom-and-lockdown-security-
solutionsfrom-assa-abloy.
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related to the mark.”).18 The determination of whether a mark is merely descriptive
must be made in relation to the goods or services for which registration is sought.
Chamber of Commerce of the U.S., 102 USPQ2d at 1219. It is not necessary, in order
to find a mark merely descriptive, that the mark describe each feature of the goods
or services, only that it describe a single, significant ingredient, quality,
characteristic, function, feature, purpose or use of the goods or services. Id.; In re
Gyulay, 3 USPQ2d at 1010.
Where a mark consists of multiple words, the mere combination of descriptive
words does not necessarily create a nondescriptive word or phrase. In re Phoseon
Tech., Inc., 103 UPQ2d 1822, 1823 (TTAB 2012); In re Associated Theatre Clubs Co.,
9 USPQ2d 1660, 1662 (TTAB 1988). A mark comprising a combination of merely
descriptive components is registrable only if the combination of terms creates a
unitary mark with a unique, nondescriptive meaning, or if the composite has a
bizarre or incongruous meaning as applied to the goods or services, see In re
Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968); In re Shutts, 217

18 Applicant, citing to No Nonsense Fashions, Inc. v. Consolidated Foods Corp., 226 USPQ
502 (TTAB 1985), additionally points to a three-part test for determining whether a mark is
suggestive rather than descriptive. The test includes: (1) the degree of imagination
necessary to understand the product; (2) a competitor’s need to use the same term; and (3)
the competitor’s current use of the same or similar terms. Br. p. 12, 4 TTABVue 13. We
note, however, that this “test” was set out in an inter partes case in a discussion of whether
the use of a term by a third parties on their packaging detracted from the plaintiff’s
trademark rights. Since this decision issued in 1985, there have been numerous decisions
from the Court of Appeals for the Federal Circuit, our primary reviewing court, and the
Board, making clear that the test for descriptiveness is whether a term “immediately
conveys knowledge of a quality, feature, function, or characteristic of the goods or services
with which it is used.” Chamber of Commerce of the U.S, 102 USPQ2d at 1219; In re Bayer
Aktiengesellschaft, 488 F.2d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007), citing In re
Gyulay, 820 F.2d 1216, 1217, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Engineering Systems
Corp., 2 USPQ2d 1075 (TTAB 1986); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979).
Serial No. 85894991
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USPQ 363 (TTAB 1983), However, if each component retains its merely descriptive
significance in relation to the goods, the combination results in a composite that is
itself merely descriptive. Oppedahl & Larson LLP, 71 USPQ2d at 1371.
Discussion
We note, first, that Applicant, in its brief, concedes that the term “magnet” is
generic and, accordingly, the descriptive or generic significance of this term is not in
dispute. Thus our focus in this appeal is whether the term LOCKDOWN is
descriptive of Applicant’s magnets and, if so, whether the combined term
LOCKDOWN MAGNET retains the descriptive significance of the individual
components. In that regard, we find the evidence of record highly persuasive. The
dictionary definition as well as the Internet evidence submitted by the Examining
Attorney show that the term “lockdown” directly describes the purpose or function
of Applicant’s magnets, namely to facilitate confinement as a security method.
We thus find that the term “Lockdown” is merely descriptive and, the term
“Magnet” is, generic when used in connection with the identified goods. As stated,
the word “Lockdown” refers to the confinement within a facility necessary to ensure
security and the word “Magnet” identifies the means or device used to implement
that security measure.
We further find that the record establishes that the designation LOCKDOWN
MAGNET, as a whole, is descriptive of the identified goods. There is nothing in the
combination of terms which is incongruous, nor is there anything which would
require the gathering of further information, in order for the merely descriptive
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significance thereof to be readily apparent to prospective purchasers of the goods.
See, for example, In re Abcor Development Corp., Inc., 588 F.2d 811, 200 USPQ 215
(CCPA) (Rich, J., concurring) [GASBADGE described as a shortening of the name
“gas monitoring badge”]; and Cummins Engine Co., Inc. v. Continental Motors
Corp., 359 F.2d 892, 149 USPQ 559 (CCPA 1966) [TURBODIESEL held generically
descriptive of engines having exhaust driven turbine super-chargers]. Here, the
word “Lockdown” modifies the word “Magnet” and the combination of the words
fails to create a new and distinct commercial impression.
Indeed, the following webpage from Applicant’s own website confirms the self-
explanatory nature of the term “Lockdown Magnet”:
19
In urging reversal of the refusal, Applicant made of record various third-party
registrations for marks that include the term “Lockdown” (or “Lock Down”), alone or
with other matter, arguing that it would be inconsistent for the Office to deny

19 http://www.lockdownmagnet.com/About-Us.html. Attachment to the Final Office Action
dated March 5, 2014.
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registration of its mark in view of these registrations.20 These registrations do not
persuade us, however, to come to a different conclusion. In determining the issue of
descriptiveness, prior registrations are of little value because each case must be
determined on its own facts. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics
similar to Nett Designs’ application, the PTO’s allowance of such prior registrations
does not bind the Board or this court”). We are constrained to decide this appeal on
the record before us, and the record in this appeal clearly demonstrates that the

20 These registrations include:
Registration No. 4416885 for the mark LOCKDOWN BROWSER (the word “Browser”
disclaimed”) for browser software; Registration No. 4287538 for the mark LOCKDOWN for
hygrometers and firearm vaults and accessories; Registration No. 3939568 for the mark
Lockdown for accounting software; Registration No. 3083349 for the mark RAINBOW SIX
LOCKDOWN for software and electronic games, software games recorded on CD-ROMs,
digital video discs; Registration No. 4254964 for the mark for access
control programmable locking systems consisting of electronic cylindrical locksets and
keypads; Registration No. 4383049 for the mark Lowest price lock down ( the phrase
“Lowest Price” disclaimed) for ticket reservation and booking services for entertainment
and cultural events; Registration No. 4300250 for the mark AC LOCK DOWN SECURITY
(the terms “AC” and “Security” disclaimed) for metal cages for HVAC units; Registration
No. 4183902 for the mark (the word “Publishing” disclaimed) for book publishing;
Registration No. 4154615 for the mark LOCKDOWN for electronic document storage,
document storage and digital imaging services; Registration No. 3844153 for the mark
LOCKDOWN SECURITY (the word “Security” disclaimed) for installation, monitoring and
repair of security and fire alarm systems; Registration No. 3619047 for the mark
for consultation in the field of data theft and identity theft; and
Registration No. 4050303 for the mark COLOUR LOCKDOWN TECHOLOGY (the words
“Colour” and “Technology” disclaimed) for non-medicated hair preparations.
Applicant also made of record a copy of Registration No. 3429295. It has no probative
value whatsoever, having been cancelled pursuant to Section 8 of the Trademark Act.
Serial No. 85894991
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wording LOCKDOWN MAGNETS is descriptive of the purpose of Applicant’s
magnets.
Similarly, Applicant’s reliance on a variety of cases to bolster its contention that
its applied-for mark is not merely descriptive of the identified goods is misplaced.
As noted, each case must be decided on its own merits. The determination of
registrability of a mark in another case does not control the merits in the case now
before us. See In re Nett Designs Inc., 51 USPQ2d at 1566; see also, In re Kent-
Gamebore Corp., 59 USPQ2d 1373 (TTAB 2001); In re Wilson, 57 USPQ2d 1863
(TTAB 2001). In this case, we must determine the registrability of LOCKDOWN
MAGNET based on the record before us.
Finally, we note Applicant’s reliance on the principle that when there is doubt
whether a mark is merely descriptive, that doubt should be resolved in favor of the
applicant. However, in this case, we have no doubt.
Conclusion
We conclude that when applied to Applicant’s goods, the designation
LOCKDOWN MAGNET immediately describes, without any kind of mental
reasoning, the purpose and function of the identified magnets, namely that they
facilitate confinement during lockdown situations. Accordingly, LOCKDOWN
MAGNET is merely descriptive under Section 2(e)(1) of the Act.
Decision: The refusal to register LOCKDOWN MAGNET is affirmed.