FTL Systems, Inc.

Trademark Trial and Appeal Board

Jun 25, 2002

No. 75729408 (T.T.A.B. Jun. 25, 2002)

Mailed: June 25, 2002
Paper No. 12
ejs

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re FTL Systems, Inc.
________

Serial No. 75/729,408
_______

William J. Ryan of Dunlap & Seeger, P.A. for FTL Systems,
Inc.

David H. Stine, Trademark Examining Attorney, Law Office
114 (Margaret Le, Managing Attorney)
_______

Before Seeherman, Hairston and Bucher, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

FTL Systems, Inc. has appealed from the final refusal
of the Trademark Examining Attorney to register THE BILLION
GATE DESIGN SOLUTION as a trademark for “computer software
for compilation and simulation of electronic and electro-
mechanical designs.”1 Registration has been refused
pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 75/729,408, filed June 16, 1999, and
asserting a bona fide intention to use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75/729,408
2
1052(e)(1), on the ground that applicant’s mark is merely
descriptive of its identified goods.
Applicant and the Examining Attorney have filed appeal
briefs. An oral hearing was not requested.
We affirm the refusal.
A mark is merely descriptive, and therefore prohibited
from registration by Section 2(e)(1) of the Trademark Act,
if it immediately conveys knowledge of a quality,
characteristic, function, ingredient, attribute or feature
of the goods or services with which it is used. See In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In
re Venture Lending Associates¸226 USPQ 285 (TTAB 1985).
The question of whether a term is merely descriptive must
be determined not in the abstract, but in relation to the
goods or services for which registration is sought, the
context in which the mark is used, and the significance
that the mark is likely to have, because of the manner in
which it is used, to the average purchaser as he encounters
goods bearing the mark in the marketplace. In re
Engineering Systems Corp., 2 USPQ 1075 (TTAB 1986).
The examination history of this application has a
bearing on the Examining Attorney’s determination that the
mark is merely descriptive. In the first Office action the
Examining Attorney required a disclaimer only of the words
Ser No. 75/729,408
3
DESIGN SOLUTION because they were found to be merely
descriptive. Applicant was also required to submit samples
of promotional material for its goods, and to explain
whether “billion gate” has any significance in the trade.
In response to that action, applicant offered the required
disclaimer, and explained that “GATE is a term in the
industry used as a unit of measure to describe the capacity
of an electronic or electro-mechanical system.” Response
filed June 12, 2000. With that response applicant
submitted the requested materials, and it is on the basis
of those materials, as well as applicant’s information as
to the meaning of “gate,” that the Examining Attorney then
refused registration on the ground that the mark as a whole
is merely descriptive.
We thus turn to this material, as well as applicant’s
explanation of its goods:
The purpose of the software is to
simulate and predict the performance of
complex electronic and electro-
mechanical “designs” or systems.
Examples of such electronic designs are
as diverse as aircraft and spacecraft
electronics, telephone switching
systems and medical diagnostic
equipment. Examples of such electro-
mechanical designs are flight controls
and engine controls. In use, the
software creates a model of the
particular design, simulates its
operation under the intended
circumstances of its use and predicts
Ser No. 75/729,408
4
its performance under those
circumstances. The advantage of the
goods is that they are able to simulate
and predict the performance of a
particular design without having to
actually construct and operate the
design. Response filed June 28, 2001.

This explanation, as well as applicant’s disclaimer of
the term DESIGN SOLUTION, clearly shows that DESIGN
SOLUTION is a merely descriptive term for applicant’s
goods.
The promotional materials submitted by applicant
include the following statements:
Subhead: Breakthrough in VHDL and VHDL-
AMS Simulation Technology
Auriga, The Billion Gate Design
Solution

A technology breakthrough allows
designers to compile and simulate VHDL
and VHDL-AMS designs from 10M through 1
billion gate equivalents. FTL System’s
Auriga divides compilation and
simulation of VHDL and VHDL-AMS (analog
and mixed signal) across shared memory
multiprocessors and massively parallel
systems with single processor or shared
memory nodes. This technology
breakthrough increases design
verification capacity at least two
orders of magnitude relative to prior
simulators.
Applicant’s press release, June 11,
1998

Touted as The Billion Gate Design
Solution, FTL’s Auriga offers
exceptional performance for developers
of large applications that run on
Ser No. 75/729,408
5
multiple processor hardware designs,
such as jet aircraft, automobiles and
process control systems. For these
types of systems, as the number and
complexity of processors increases so
does the number of “gates,” which are
the fundamental building blocks of
microelectronic circuitry. When the
number of gates move into the one
billion region, FTL’s Auriga performs
in a class by itself. Auriga excels at
handling software designs that operate
hardware systems that are 100 times
“larger” than competing solutions.

Before Auriga, compilation tools were
painfully inadequate for designers
building systems with 10 million gate
equivalents or more.
***
Before Auriga, system designers had
three less effective options: simulate
at several levels of detail, use large
and expensive hardware emulation
engines or use actual hardware
prototypes. All alternatives are still
limited to about 20 million gate
equivalents.

The most formidable challenges facing
FTL designers were increasing gate
capacity exponentially, distributing
complex computing tasks among various
processors and reducing network
latency. FTL addressed these
challenges by designing EDA tools
implemented with advanced object-
oriented technology to substantially
raise gate capacity and increase
simulation speed.
Sun Microsystems, material on Large
Scale Co-Design of Hardware/Software
Systems (according to the material,
applicant developed its software using
Sun technology and equipment)

Ser No. 75/729,408
6
In another piece of promotional literature, applicant
touts as a unique feature of its compiler /simulator
“Extended capacity for billion-gate equivalent designs.”
In view of this evidence, it is clear that BILLION
GATE identifies a characteristic of applicant’s software,
namely, the capacity of the software to handle billion-gate
equivalent designs. Further, when the terms BILLION GATE
and DESIGN SOLUTION are combined as THE BILLION GATE DESIGN
SOLUTION, the resulting mark is merely descriptive. The
relevant purchasers for software for compilation and
simulation of electronic and electro-mechanical designs
would immediately understand, when the mark is used in
connection with these goods, that the software provides a
solution for consumers building software designs with one
billion gates.
Applicant argues that a potential purchaser would not
understand from the mark what the function of the software
is, noting that the word SOLUTION connotes either a liquid
mixture or the manner in which to resolve a problem.
However, this argument suggests that the mark should be
viewed in the abstract and, as noted above, the question of
whether a term is merely descriptive must be determined in
relation to the identified goods. Thus, the fact that the
individual words in applicant’s mark may have other
Ser No. 75/729,408
7
meanings in other contexts does not affect our decision
herein.
Applicant also argues that the mark cannot be merely
descriptive because “computer programs for use in billion
gate-equivalent designs” would not be an acceptable
identification, but would be rejected as indefinite. At
the same time, applicant acknowledges that “extended
capacity for billion gate-equivalent designs” is an
appropriate “designation of the field of use of the goods.”
Whether or not the identification suggested by applicant in
this argument would be deemed acceptable is beside the
point.2 Applicant has pointed to no case law that requires,
in order for a mark to be found merely descriptive, that it
would be acceptable as an identification of goods. What is
relevant is applicant’s statement that “billion gate-
equivalent designs” describes the field of use of
applicant’s goods. This lends further support to our view
that consumers in this field would immediately recognize
THE BILLION GATE DESIGN SOLUTION as describing a feature of
the software.
Decision: The refusal of registration is affirmed.

2 We make no comment on the acceptability of applicant’s
hypothetical identification of goods. Such an identification was
never offered, and there has been no statement by the Examining
Attorney as to its acceptability. Applicant’s entire argument is
based on its own supposition.