Fuhu Holdings, Inc.

Trademark Trial and Appeal Board

Apr 19, 2013

No. 85326591 (T.T.A.B. Apr. 19, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: April 19, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fuhu Holdings, Inc.
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Serial No. 85326591
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Michael I. Shokrian of Law Offices of Michael Isaac Shokrian,
for Fuhu Holdings, Inc.
Renee McCray, Trademark Examining Attorney, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
_____

Before Bucher, Zervas and Wolfson,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Fuhu Holdings, Inc. has appealed from the final refusal of the examining
attorney to register on the Principal Register OPEN SOURCE HARDWARE (in
standard character form) as a mark for the following International Class 42
services:1
Computer services, namely, providing an interactive web site featuring
technology that allows users to consolidate and manage social

1 Application Serial No. 85326591, asserting an intent to use the asserted mark in
commerce under Trademark Act Section 1(b), 15 U.S.C. § 1051(b).
Serial No. 85326591
2

networks, accounts, and connections to existing and emerging
application programming interfaces (APIs).

The examining attorney has issued a final refusal to register under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that, when used
in connection with applicant’s services, OPEN SOURCE HARDWARE would be
merely descriptive of such services.
After the examining attorney issued a final action, applicant filed an appeal and
a request for reconsideration. The examining attorney denied the request for
reconsideration, and subsequently both applicant and the examining attorney filed
briefs. We affirm the refusal to register.
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the goods or
services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978). A term need
not immediately convey an idea of each and every specific feature of the applicant’s
goods or services in order to be considered merely descriptive; it is enough that the
term describes one significant attribute, function or property of the goods or
services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and In re MBAssociates,
180 USPQ 338 (TTAB 1973).
The examining attorney contends as follows at unnumbered p. 3 of her brief:
“OPEN SOURCE HARDWARE” is a commonly used term in the
IT industry that is widely understood to name or describe hardware-
related information, such as hardware design, that is made publicly
available. See definition from Wikipedia attached to denial of request
Serial No. 85326591
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for reconsideration of 07/01/2012. Applicant’s services involve the
sharing or use of hardware-related information because the provision
of an interactive web site featuring technology that allows users to
consolidate and manage application programming interfaces is
essentially an open source hardware platform that involves open
source hardware interfaces.

The examining attorney essentially argues that the designation is merely
descriptive because it identifies the computer hardware that applicant uses in
rendering its computer services.
The record contains the following definitions of “open source hardware”:
(From wikipedia.org – first Office action at 21):
Open source hardware … consists of physical artifacts of
technology designed and offered in the same manner as free and open
source software (FOSS). Open source hardware is part of the open
source culture movement and applies a like concept to a variety of
components. The term usually means that information about the
hardware is easily discerned. Hardware design (i.e., mechanical
drawings, schematics, bill of materials, PCB layout data, HDL source
code and integrated circuit layout data) in addition to the software that
drives the hardware are all released with the FOSS approach.

Since the rise of reconfigurable programmable logic devices,
sharing of logic designs has been a form of open source hardware.
Instead of the schematics, hardware description language (HDL) code
is shared. HDL descriptions are commonly used to set system-on-a-
chip systems either in field-programmable gate arrays or directly in
application-specific integrated circuit designs.

(From harkopen.com – first Office action at 43):
Open Source Hardware … is a term for tangible artifacts –
machines, devices, or other physical things – whose design has been
released to the public in such a way that anyone can make, modify,
distribute, and use those things.

(From p2pfoundation.net – denial of req. for recon. at 29):
Open source hardware is a growing movement in the personal
fabrication community. If an inventor chooses to open source her
hardware design, she makes publicly available all the schematics,
detailed description of needed parts and software, drawings and
Serial No. 85326591
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“Board” files – basically all the information anybody would need to
identically re-create the product or object.

In addition to the definitions of “open source hardware” set forth above, the
record includes, (i) webpages wherein “open source hardware” is used in the context
of computer hardware that is available to the general public,2 (ii) articles taken
from the Nexis database using OPEN SOURCE HARDWARE, and (iii) the following
definitions:
1. “Application programming interface (API)” - a “source
code interface that a computer system or program library provides
in order to support requests for services to be made of it by a
computer program” (from www.freebase.com); and

2. “Interface” - “a tool and concept that refers to a point of
interaction between components, and is applicable at the level of
both hardware and software. This allows a component, whether a
piece of hardware such as a graphics card or a piece of software
such as an Internet browser, to function independently while using
interfaces to communicate with the other components via an
input/output system and an associate protocol” (from
wikepedia.org).

Applicant has chosen in its recitation of services to characterize its website as
“featuring technology.” The term “technology” is defined as:
1a : the practical application of knowledge especially in a particular area :
engineering 2

b : a capability given by the practical application of knowledge

2 See, e.g., www.blog.databazaar.com article entitled “Will the Open-Source Hardware
Movement Bring you a Free Printer?” stating, “Open source hardware movement aims to
bring commodity electrical and other components to free and open designs of hardware
devices”; and NY Daily News article entitled “Take a Ride on the Tech Train,” discussing
the “growing open source hardware movement, in which the blueprints of a device are made
publicly available so anyone can build it or make their own modifications.”
Serial No. 85326591
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2: a manner of accomplishing a task especially using technical processes,
methods, or knowledge

3: the specialized aspects of a particular field of endeavor 3

There is no doubt that “technology” includes “open source hardware,” and that
“open source hardware” consists of “technology.” See, e.g., webpages from
dangerousprototypes.com, submitted with first Office action. The record reflects
that “open source hardware” has a variety of uses, and includes software. It follows,
then, that applicant’s website “featuring technology” may feature open source
hardware that allows users to consolidate and manage social networks, accounts,
and connections to existing and emerging APIs.
In support of registration, applicant maintains in Section 1 of its brief that the
mark is not merely descriptive because OPEN SOURCE was used initially with the
Open Source Software Movement; that applicant’s use of “open source” would
associate that term with the provision of software and that “this causes a jarring
effect that is overcome by the user’s imagination to the play on words.” Brief at 9.
Additionally, applicant argues that joining HARDWARE next to OPEN SOURCE
causes consumers to think of “physical artifacts of technology designed and offered
in the same manner as free and open source software,” citing to the wikipedia.com

3 At http://www.merriam-webster.com/dictionary/technology. The Board may take judicial
notice of dictionary definitions, including the electronic equivalent of a print reference
work. See University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213
USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); and TBMP
§ 1208.04.
Serial No. 85326591
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definition of “open source hardware.”4 Further, applicant contends that applicant’s
mark is not associated with goods at all, but with services; and that “an ordinary
consumer, after already using her imagination to piece the play on words together,
would not find that OPEN SOURCE HARDWARE is descriptive at all of Applicant’s
cited services.” Brief at 10. These arguments are not well taken because the
examining attorney has established that “open source hardware” is a single term of
art having its own defined and established meaning.
In Section 2 of its brief, applicant maintains that “although the terms OPEN
SOURCE … and HARDWARE are arguably descriptive terms, the combination of
these two terms clearly evokes a new and unique combination that is not
descriptive” because “their descriptions clash in a way that requires an ordinary
consumer to use her imagination to reconcile the meaning of the new and unique
combined term.” Brief at 10–11. This argument also misses the mark, because, as
noted, “open source hardware” has a defined meaning. The issue, then, is whether
“open source hardware” as a whole is merely descriptive of applicant’s services.
In Section 3 of its brief, applicant maintains that applicant’s services “do not
feature any … sharing of hardware-related information. Applicant’s services only
feature a technology that allows users to consolidate and manage social networks
and accounts (which are virtual and software based), and connections to APIs
(which are either virtual or software based). Applicant’s services are not related to

4 According to the wikipedia.org entry for “open-source software,” this is computer software
that is available in source code form and “the source code and certain other rights normally
reserved for copyright holders are provided under an open-source license that permits users
to study, change, improve and at times also to distribute the software.”
Serial No. 85326591
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hardware or physical artifacts at all.” Brief at 12.5 Applicant’s argument is not
persuasive because we are constrained to consider the issue of mere descriptiveness
based on the services as described in the application. It is well-established that the
determination of mere descriptiveness must be made not in the abstract, but in
relation to the goods or services for which registration is sought. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978); In re Vehicle
Identification Network, Inc., 32 USPQ2d 1542 (TTAB 1994) (descriptiveness of mark
in an intent-to-use application determined by services identified in application).
Upon considering the evidence in the record and applicant’s and the examining
attorney’s arguments, we find that OPEN SOURCE HARDWARE is merely
descriptive of a feature of applicant’s services.
In reaching our conclusion, we have given limited consideration to the
registrations introduced into the record by the examining attorney and applicant in
which OPEN SOURCE has been, or has not been (as the case may be), disclaimed.
The term “open source hardware” has been shown to have a defined and established
meaning that does not depend upon any separate meaning of the words “open
source” alone. Moreover, as is often stated, each case must stand on its own record
and, in any event, the Board is not bound by the actions of prior examining
attorneys. See In re Nett Designs, 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

5 Applicant has also argued that its mark is not generic. The examining attorney does not
contend that the designation is generic; mere descriptiveness is the only issue that has been
raised in the final Office action.
Serial No. 85326591
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bind the board or this court.”). See also 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.”).
Decision: The refusal to register is affirmed.
- o O o -
Opinion by Bucher, Administrative Trademark Judge, concurring in part and
dissenting in part:

Although I applaud my colleagues for denying applicant the near-term
possibility of getting a notice of publication for an alleged mark to which it is not
entitled, I do not believe the examining attorney has made out a prima facie case
that this term, or “signifier,” immediately conveys information about the recited
services, or “referent.”6
Beginning with an examination of the referent, we discover from the record that
applicant is a designer, seller and innovator of products and services for ordinary
consumer, and especially for children, e.g., its 7” Android tablet sold under the nabi
mark. Applicant’s business model includes the provision for its users of an ever-
increasing variety and volume of content, new ways of creating thoughtful user

6 With a whole range of conceptually challenging cases that do not fit easily into current
precedent, it is tempting to try viewing them through the lens of semiotics. See Barton
Beebe, The Semiotic Analysis of Trademark Law, 51 UCLA L. REV. 621 (2004); and Barton
Beebe, The semiotic account of trademark doctrine and trademark culture, Ch. 2,
Trademark Law and Theory: A Handbook of Contemporary Research, Edited by Graeme B.
Dinwoodie & Mark D. Janis (2008).
Serial No. 85326591
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experiences on a range of consumer devices, and permitting users to access and
share their digital life anywhere. In order to optimize the attractiveness of its tablet
to potential users, Fuhu provides Web 2.0 cloud-served software, applications
(“apps”) or widgets (called “Spinlets” by applicant), and other services. For example,
the record shows that applicant’s Fooz Kids application “kiddifies” one’s computer
(providing control of the device by web-savvy parents!). In this era of cloud
computing, if applicant launches an open web API, presumably independent
software vendors and third-party developers will create an incredible array of apps
connecting tablet users to new social media tools, applicant’s business partners, and
other vendors having their own existing platforms, like Amazon.com. The customers
for these services would be users of nabi tablets and other computerized devices
(e.g., children and their parents who are targets of applicant’s goods and services).
By contrast, applicant has adopted as its “signifier” an established term of art.
With the explosion on the scene of the Internet, the “open source movement”
initiated non-proprietary software, dubbed “open source software” (viz. Linux,
Mozilla, Android, etc.). In recent years this free and open ethos has moved into
hardware design information (viz., BeagleBone, BeagleBoard, Arduino, Bug Labs, etc.).
While this niche market is fairly small and still in its infancy, the laser-like focus of
this community of Do-It-Yourself (DIY) electronic geeks, hobbyists, hardware and
software developers, and several hardware manufacturers (all firmly immersed in
the free and open nature of computerized hardware) is the general non-proprietary
nature of things. Those in the market for open source hardware products are
hobbyists and DIY geeks – not children having tablets, or their parents.
Serial No. 85326591
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In reading the majority opinion to tease out the nexus between “Open Source
Hardware” (an established term of art) and applicant’s recitation of services, one
will find only three statements that even attempt to explain this connection:
• Examining attorney (at unnumbered p. 3 of her brief): “Applicant’s
services involve the sharing or use of hardware-related
information because the provision of an interactive website
featuring technology that allows users to consolidate and manage
application programming interfaces is essentially an open source
hardware platform that involves open source hardware
interfaces.”
• Majority (at 3, supra): “The examining attorney essentially argues
that the designation is merely descriptive because it identifies the
computer hardware that applicant uses in rendering its computer
services.”
• Majority (at 5, supra): “The record reflects that “open source
hardware” has a variety of uses, and includes software. It follows,
then, that applicant’s website “featuring technology” may feature
open source hardware that allows users to consolidate and
manage social networks, accounts, and connections to existing and
emerging APIs.”

I trust that those with more technical knowledge than I possess will understand
these explanations, and find them persuasive.
Although giving lip service to the fact that “Open Source Hardware” is a term of
art, these attempts at creating a logical nexus (between the signifier and the
referent) force the examining attorney and the majority herein to treat this three-
word term as a polysemous grouping of words (i.e., without any understood meaning
by the relevant purchasers), breaking it down into component parts, and then
cutting quickly to a mashup conclusion that the applied-for term conveys
information about the recited services.
Serial No. 85326591
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However, “Open Source Hardware” as represented throughout this record (e.g.,
Arduino, BeagleBone or BeagleBoard) currently involves circuit boards that sell for
around $100. Given applicant’s world of Web 2.0 technologies, open cloud web APIs,
software development kits, and a platform having access to over 70 million devices
(PCs, TVs and mobile devices), I am quite sure that inexpensive circuit boards
designed for hobbyists are not the type of hardware applicant relies upon in
rendering its services.
Perhaps the examining attorney is taking a much longer view. With the passage
of years and the eventual realization of the Semantic Web (Web 3.0), future
generations of ontological engineering, etc., it may be possible to conceive of a time
when the term “Open Source Hardware” could take on a much broader meaning.
Future enabling technologies will likely further blur the line between hardware and
software, and may well create a convergence of the virtual and physical worlds.
With distant generations of technologies, experience with applicant’s recited
services on the part of ordinary consumers could prove to be a rough approximation
of what electronic geeks would achieve today with combinations of widgets /
networks / Internet appliances / OSH boards / APIs, etc. Similarly, while my
colleagues might fear that this application represents a stalking horse for a
breakthrough or killer app that is still a decade or more down the road, I see no
evidence in this record of any current overlap between the signifier and the referent
as of 2012-13.
In support of its argument of incongruity, applicant argues that this term will
be seen as “jarring” by the target audience. I agree it is jarring, but in a manner
Serial No. 85326591
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completely different from that which applicant contemplated. Were this mark to
appear for publication, I anticipate that those who worship at the altar of “open
source” software and hardware would howl at the impudence, bordering on an act of
sacrilege, involved in a hardware manufacturer, software purveyor, and owner of a
cloud-based platform claiming proprietary rights in the very term that eschews the
concept. Jarring indeed!
In the face of this very real challenge, it seems to me that the examining
attorney did not use the tools available to her under Rule 2.61(b), 37 C.F.R.
§ 2.61(b), to demand additional, detailed information from applicant about its
proposed services in order to make a proper assessment of how best to prosecute
this application. Having a better understanding of exactly what applicant was
proposing with this intent-to-use application, the examining attorney might well
have concluded that the applied-for term is not merely descriptive, but may be
deceptive (viz. applications for SILK-formatives terms in connection with cheap
polyester fabrics), or deceptively misdescriptive (or even to those in the open source
movement, “scandalous”!). Or perhaps someone on the cutting edge of these
technologies and services could conceive of another statutory bar, one grounded in
unassailable reasons why this is not the harmless adoption of an arbitrary term as
a source indicator.
This Board has been reluctant historically to remand such a case for further
prosecution. Without agreement among the panel members for pursuing a remand,
I find in this case, in the absence of the Office having made a prima facie case of
mere descriptiveness on the existing record, that I would hold my nose, vote to
Serial No. 85326591
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reverse the merely descriptive refusal under Section 2(e)(1) of the Lanham Act, and
send this application to publication. If the system works as it should, a competitor,
trade association, industry group or someone else in the open source community
would then oppose this application – making the appropriate statutory refusal(s)
having a sound basis in trademark law – with the result that applicant would not
succeed in having this mark registered, avoiding all the potential confusion and
mischief that could ensue therefrom.