Final Mix, Inc.

Trademark Trial and Appeal Board

Sep 28, 2004

No. 76438030 (T.T.A.B. Sep. 28, 2004)

Mailed:
September 28, 2004
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Final Mix, Inc.
________
Serial Nos. 76438030 and 76438032
_______
Anthony M. Keats of Keats McFarland & Wilson LLP for Final
Mix, Inc.
Zhaleh Sybil Delaney, Trademark Examining Attorney, Law
Office 116 (Meryl Hershkowitz, Managing Attorney).
_______
Before Seeherman, Bucher and Drost, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Final Mix, Inc. seeks registration on the Principal
Register of the mark FINAL MIX for goods and services
identified in the respective applications, as filed, as
follows:
computer software for use in creating sound,
in International Class 9;1 and
audio and visual production services, in
International Class 41.2
1 Application Serial No. 76438030 was filed on August 5, 2002
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce.
2 Application Serial No. 76438032 was also filed on August 5,
2002 based upon applicant’s allegation of a bona fide intention to
use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial Nos. 76438030 and 76438032
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These cases are now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to register
this designation based upon the ground that applicant’s mark
is merely descriptive when considered in relation to
applicant’s identified goods and recited services, i.e., that
FINAL MIX immediately informs potential consumers that
applicant’s goods and services are used to create final mixes
or edits of sound recordings and visual images.
Applicant has appealed in both applications. Both
applicant and the Trademark Examining Attorney have filed
briefs, but applicant did not request an oral hearing before
the Board.
Inasmuch as both of these appeals involve common
questions of law and fact, and each has been treated in
substantially the same manner by the applicant and by the
Trademark Examining Attorney, we have consolidated these two
appeals and issue a single decision herein.
We affirm the refusals to register.
A mark is merely descriptive, and therefore
unregistrable pursuant to the provisions of Section 2(e)(1)
of the Trademark Act, if it immediately conveys information
of significant ingredients, qualities, characteristics,
features, functions, purposes or uses of the goods or
Serial Nos. 76438030 and 76438032
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services with which it is used or is intended to be used. A
mark is suggestive, and therefore registrable on the
Principal Register without a showing of acquired
distinctiveness, if imagination, thought or perception is
required to reach a conclusion on the nature of the goods or
services. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009
(Fed. Cir. 1987).
The question of whether a particular term is merely
descriptive is not decided in the abstract. Rather, the
proper test in determining whether a term is merely
descriptive is to consider the mark in relation to the goods
and services for which registration is sought, the context in
which the mark is used or is intended to be used, and the
possible significance that the mark is likely to have on the
average purchaser encountering the goods and services in the
marketplace. See In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215 (CCPA 1978); In re Intelligent
Instrumentation Inc., 40 USPQ2d 1792 (TTAB 1996); In re
Consolidated Cigar Co., 35 USPQ2d 1290 (TTAB 1995); In re
Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991); In re
Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986); and In
re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979).
Serial Nos. 76438030 and 76438032
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Applicant argues at length that the term “final cut” is
demonstrably much more descriptive than is “final mix” for
computer software designed for the same uses as is the
software herein, but that earlier-filed applications for
FINAL CUT and FINAL CUT PRO were registered without
objection.3 Applicant also argues that the involved goods
would not be used to produce a “final mix,” and that its mark
would simply suggest to potential customers that applicant is
the source for audio and visual production goods and
services.
By contrast, in support of her refusal to register, the
Trademark Examining Attorney has pointed to a variety of
articles and advertisements drawn from Internet websites.
From these Internet sources, it is clear that in the
production of music CD’s, for example, one of the chief
3 The fact that a third-party applicant registered the term
FINAL CUT and FINAL CUT PRO is not persuasive of a different result
herein. Suffice it to say that these registrations are of little
help in determining the registrability of the mark at issue in this
case. As often noted by the Board, each case must be decided on
its own set of facts. FINAL CUT and FINAL CUT PRO are obviously
different marks from FINAL MIX, and thus the facts in those records
(to which we are not privy) would obviously be different.
Moreover, the Board is not bound by actions taken by Trademark
Examining Attorneys. In re National Novice Hockey League, Inc. 222
USPQ 638, 641 (TTAB 1984) and In re Scholastic Testing Service,
Inc., 196 USPQ 517, 519 (TTAB 1977). While uniform treatment under
the Trademark Act is highly desirable, our task here is to
determine, based upon the record before us, whether applicant’s
asserted mark is registrable.
Serial Nos. 76438030 and 76438032
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responsibilities of a recording engineer is to work toward
the creation of a “final audio mix”:
HEADING: Audio Engineering
Careers:
…
Recording Engineers work in a studio
environment and listen and create the final
audio mix of music CD’s.4
In fact, the Trademark Examining Attorney has placed in
the record a number of Internet stories pointing to “final
audio mix” as a term of art in the context of computer
software for use in creating audio recordings, as well as
stories where the term is being used by those offering
production services for music and other audio works. This
term is frequently shrotened to “final mix” where the larger
context is mixing audio tracks, or where the factual
situation involves combining the audio tracks with digital
video tracks. The following Internet hits demonstrate that
the term “final mix” is used by those in the audio, music,
video and film production industries to refer to the
finishing stages in the project cycle of recording, editing
and mixing audio and video productions. Several examples are
4 JETS – The Junior Engineering Technical Society,
http://www.jets.org/publications/audio.cfm
Serial Nos. 76438030 and 76438032
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drawn from electronic magazines published on the Internet
(emphasis supplied):
HEADLINE: The Final, Final Mix
… Remix invited an international roundtable of
engineers and indie-label execs to discuss
mastering …. Remix Question: What can a
home- or project-studio artist do to prepare a
mix for mastering? …
Larry Lachman, mastering engineer, Absolute
Audio: Check your mixing on other systems.
Do not normalize this process – it actually
limits what a mastering engineer can do to a
final mix. It can also distort the music …
Remix Question: Any final tips about
preparing a master or about mastering
techniques?
Chris Cowie, label manager, Bellboy Records:
It depends on the style of music … You have
to be careful when using compression on a
final mix that has vocal on it …5
HEADLINE: New Software/Hardware for Audio
Production
EMAGIC WAVEBURNER PRO – Emagic (www.emagic.de)
releases a new, more powerful version of its
WaveBurner Pro audio CD-mastering software.
Upgrade highlights include the integration of
mastering plug-ins and support for VST format
plug-ins, along with the ability to directly
load more audio formats, plus expanded driver
support for a broader range of audio hardware
devices. New plug-in support features allow
plug-ins to be applied to individual regions,
as well as to the final mix. Any number of
plug-ins can be serially inserted, related to
the amount of host processing resources
available. Emagic Logic Audio plug-ins
bundled with WaveBurner Pro include a
compressor/limiter, multiband compressor, Fat
5 http://remixmag.com/
Serial Nos. 76438030 and 76438032
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EQ and audio restoration tools. WaveBurner
Pro now natively supports 24-bit/96kHz files.
In addition to .AIFF and SDII files and
regions, .WAV files can now also be directly
loaded into WaveBurner for editing. MP3 is
also supported. Audio driver support now
includes ASIO and Direct I/O, in addition to
SoundManager and Audiowerk8/2. Other new
features include expanded edit commands,
multiple level meters and an improved user
interface. Price: $299.6
At least one of the uses drawn from the Internet is an
advertisement on Yamaha’s website:
CAPTION: From Conception to CD with the AW16G
Burn to CD!
Equipped with the optional CD-RW drive
(CDRW16G), the AW16G [Professional Audio
Workstation] lets you burn your final mix
right to inexpensive CD-R media …7
However, the majority of the Internet hits came from
websites discussing computer software for use in mixing sound
tracks or from websites promoting audio and visual production
services:
HEADING: FAQ: Using Audio
Question: I would like to use recorded sounds
like vocals and guitar with Orion. Is this
possible with Orion?
Answer: … Now you are ready to record your
vocals, etc., with great accuracy. When you
are finished, you export the recorded tracks
6 Mix: Professional Audio and Music Production, Dec. 1, 2000,
http://mixonline.com/mag/audio_new_softwarehardware_audio_16/
7 http://www.yamaha.com/yamahavgn/Documents/ProAudio/aw16g.pdf
Serial Nos. 76438030 and 76438032
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back into Orion as audio-tracks so you can do
your final mix in Orion….8
HEADING: Rough Guide to Sound Post Production
… Music scored by your composer will generally
be added at the final mix stage of your
production…. Please remember, when planning
your final cut that it is not recommended that
you have music on an outgoing or incoming reel
change…
… Your Final Mix will be first mixed to
simultaneous stereo Dialogue, Music and
Effects stems on a Tascam 8-track machine …
Your stems will then be mixed together to your
final mix format…9
HEADING: Article: final mix
final mix of film sound track; pre-dubs,
pyramid progression to reduce tracks, final
mixdown, DM & E and stereo mixing.10
HEADING: Harrison Magic on Track: Harry Potter
post production on MPC Console
… The final soundtrack [for Harry Potter and
the Chamber of Secrets] is being mixed on the
Harrison MPC console in Theater Four at
Shepperton in the UK …
Supporting what is undoubtedly a very complex
mix, the award-winning duo of Mike Dowson and
Mark Taylor worked … preparing the premixes
for the final mix.11
HEADING: The Way We Work
Our method of working offers unparalleled
efficiency throughout the process. For
example, rather than adhere to the typical
8 http://www.orion-central.com/
9 http://www.dbpost.com/rough.htm We also note that this is
one of several Internet sites that appear to use the terms “final
cut” and “final mix” interchangeably.
10 http://www.postproducer.com/Article/
11 http://www.crmav.com/video/41/harrison_m…rry_potter_post
_production_on_mpc_.shtml
Serial Nos. 76438030 and 76438032
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timeline of edit-then-mix, we pre-mix the film
throughout the edit/design phases so that when
the film is ready for the final mix and
output, most of the work is already done. The
pre-mixes become the final mix. There is no
loss of work, and the “final mix” becomes more
of a final tweak/check. If the film is to go
to a larger mix house for the final mix and
print mastering … then you will even more
greatly appreciate this method of working
since it will enable the mix to take place in
2-5 days ….12
HEADING: A Day In the Life: Creating a New Kind of
Music
… “For the 2:30 music video and the 5.1
surround mixes [of Nike TV spots] I did more
of a record mix than a traditional
[commercial] post-production final mix. I’d
say fully 30% of the final track was
accomplished in the final mix, because I went
into the studio with the idea that we were
mixing a record, not a soundtrack for a
commercial. We finished the final mix and it
was laid-back to CD at the Village ….”13
HEADING: From Start to Finnish
… This is how Paul Jyrälä describes his move
to the world of the digital four track Nagra-
D, about five years ago. Mr. Jyrälä has
worked as a sound mixer all over the world for
almost 38 years. He has always insisted doing
[sic] the whole production chain by himself,
from the first location recording to the final
mix. Mr. Jyrälä jumped on the digital
bandwagon in 1988 with Sony’s PCM 2000, but it
was the Nagra-D that changed his way of
working crucially.
…
The dialog fixing also takes place at this
point. One screwed word or even a phoneme can
12 http://www.soundspacestudio.com/studio.htm
13 http://www.endlessnoise.com/
Serial Nos. 76438030 and 76438032
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be fixed by taking that same part from another
take or from another track. All this, like
the other sound work apart from the final mix,
takes place in Pro Tools.
…
“One thing worth to note [sic] is also
the fact that once the sound has gone
through the Nagra’s A/D converters, it
stays a 24-bit digital signal all the way
through the whole chain until the final
mix ….”14
HEADING: ProTools Mix To Picture and Sound Design
Our ProTools system provides clients with the
industry standard format for video or film
mixing. Our experienced mixers can provide
you with a final mix that exceeds your
expectations but meets your budget. Talk to
us about a package that includes an Avid
offline edit at Downtown Avid and audio post
at City Sound.15
HEADING: We are also looking for Back End Deals
Clear Gravy Productions will fund all your
recording costs up front and produce your
entire project at our discretion, but not
without some conditions:
#1 Clear Gravy Productions will retain all
rights to the data tracks, the final mix of
the recording and the master produced from
the same….16
HEADING: Editorial Review of Producing Great Sound for
Digital Video
Producing Great Sound for Digital Video
educates beginning and experienced filmmakers
on the intricacies of creating an outstanding
14 http://www.stardustfilm.com/Articles/Paul%20Jyrala%20'
...Finnish'.htm
15 http://www.citysound.com/cspstudio/postprod.html
16 http://www.cleargravy.com/musician.html
Serial Nos. 76438030 and 76438032
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soundtrack, for preproduction planning through
the final mix ….17
HEADING: Too Blue with Drew Daniels and Jimmy
Guitar Smith
I use a Layla card for I/O, and I have an
extremely flat JBL L250 playback system in the
living room to check final mixes …
… I corrected two notes a little with Cool
Edit’s Stretch function, and then it sounded
fine. In the final mix, we thinned it out a
lot …
… After mixing and mastering, I listened to
the final mix at a level that I think the end-
listener will use ….18
HEADING: RIM 420 – Applied Digital Audio, Project
Seven: Digital Audio Mix in ProTools / Vocal
Comping Project
Project 7 will introduce the use of ProTools
software, the most widely used digital audio
editing and mixing platform in the world.
ProTools is developed by Digidesign and
comprises a large family of hardware and
software systems and applications. The parent
company of Digidesign is Avid – a widely-used
nonlinear video editing system. With this
project, you will edit and mix several vocal
tracks to form a completed vocal track to
accompany a rough “slave” mix of a song.
…
Note: The final mix of this song actually
uses all of these comp tracks plus two
additional tracks …19
17 http://www.amazon.com/
18 http://www.drewdaniels.com//js/cep3.htm
19 Middle Tennessee State University, Applied Digital Audio,
Project Seven: Digital Audio Mix in ProTools/Vocal Comping Project
http://www.mtsu.edu/~dsmitche/rim420/projects/420_project_7.html
Serial Nos. 76438030 and 76438032
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Based upon our review of these Internet materials, we
find that those in the audio and video production field who
are the potential consumers for these goods and services
would understand “final mix” to be a distinct and critical
stage of making an audio, music and/or video recording that
occurs toward the end of the “recording, editing and mixing”
stages, and immediately prior to “mastering.” The actual
recording at this point is known as the “final mix,” and in
many instances is an end point in a company’s providing audio
and visual production services.
Despite this evidence, applicant argues as follows:
The Examining Attorney has inappropriately
made the analogy in Office Action No. 2 that
because some members of the public use the
vernacular term “final mix” to refer to the
last mix of an audio or visual production,
Applicant’s mark FINAL MIX is descriptive of
Applicant’s computer software for use in
creating sound. As stated in Applicant’s
response to Office Action No. 1, Applicant
does not offer a good called a “final mix.”
Applicant’s appeal brief, p. 5.
Technically, of course, it is true that the product
applicant intends to market is computer software, albeit a
very specialized application designed to help create recorded
music. While the computer program itself is not a “final
mix,” it is clear that a significant purpose of the
identified software is to create a final mix. To the extent
Serial Nos. 76438030 and 76438032
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that purchasers may want software for different stages of
audio production, applicant’s term immediately informs
purchasers that the software is designed to produce a “final
mix,” as opposed to merely assisting with earlier tasks of
editing, converting, compressing, equalizing, etc., or the
later job of mastering. When one views the common meaning of
the term “final mix” in the context of applicant’s “computer
software for use in creating sound,” we find that it takes no
amount of mental processing to conclude that this is software
designed to create a finished audio work product at the end
of the recording, editing and mixing stages of production.
It is clear that someone purchasing applicant’s software
would understand from the mark that a significant work-
product growing out of the use of this software would be the
creation of a final audio mix, or a “final mix.”
Similarly, the recording artists and others in the audio
and visual field who are potential customers of applicant’s
audio and visual production services would know the meaning
of “final mix” and would immediately understand, when this
term is used in connection with the identified services, that
it describes a significant characteristic of the services,
namely, the production of a final mix.
Serial Nos. 76438030 and 76438032
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Accordingly, we conclude that the term FINAL MIX
immediately describes applicant’s goods and services, and
therefore registration on the Principal Register is barred by
Section 2(e)(1) of the Trademark Act.
Decision: The refusal to register based upon Section
2(e)(1) of the Lanham Act is hereby affirmed.