G-Force, Inc.

Trademark Trial and Appeal Board

Mar 6, 2013

No. 85301113 (T.T.A.B. Mar. 6, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
March 6, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re G-Force, Inc.
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Serial No. 85301113
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Clement Cheng of Newhope Law PC for G-Force, Inc.

Nelson B. Snyder III, Trademark Examining Attorney, Law Office 107 (J. Leslie
Bishop, Managing Attorney).
_____

Before Bergsman, Wellington and Lykos, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
G-Force, Inc. (“applicant”) filed an intent-to-use application to register the
mark GYROBALL, in standard character form, for “exercise machines; manually-
operated exercise equipment,” in Class 28.
The Trademark Examining Attorney refused registration on the ground that
applicant’s mark is merely descriptive. Section 2(e)(1) of the Trademark Act of
1946, 15 U.S.C. § 1052(e)(1). According to the Trademark Examining Attorney, the
mark GYROBALL describes exercise balls with gyroscopes.
Serial No. 85301113

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“A term is merely descriptive if it immediately conveys knowledge of a
quality, feature, function, or characteristic of the goods or services with which it is
used." In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987).
Whether a particular term is merely descriptive is determined in relation to the
goods or services for which registration is sought and the context in which the term
is used, not in the abstract or on the basis of guesswork. In re Abcor Development
Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d
1222, 1224 (TTAB 2002). In other words, the question is not whether someone
presented only with the mark could guess the products listed in the description of
goods. Rather, the question is whether someone who knows what the products are
will understand the mark to convey information about them. In re Tower Tech, Inc.,
64 USPQ2d 1314, 1316-1317 (TTAB 2002); In re Patent & Trademark Services Inc.,
49 USPQ2d 1537, 1539 (TTAB 1998); In re Home Builders Association of Greenville,
18 USPQ2d 1313, 1317 (TTAB 1990); In re American Greetings Corp., 226 USPQ
365, 366 (TTAB 1985).
When two or more merely descriptive terms are combined, the determination
of whether the composite mark also has a merely descriptive significance turns on
the question of whether the combination of terms evokes a new and unique
commercial impression. If each component retains its merely descriptive
significance in relation to the goods or services, the combination results in a
composite that is itself merely descriptive. See In re Tower Tech, Inc., 64 USPQ2d
1314 (SMARTTOWER merely descriptive of commercial and industrial cooking
Serial No. 85301113

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towers); In re Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001)
(AGENTBEANS merely descriptive of computer programs for use in developing and
deploying application programs); In re Putman Publishing Co., 39 USPQ2d 2021
(TTAB 1996) (FOOD & BEVERAGE ONLINE merely descriptive of news and
information services in the food processing industry). In this regard, we must
consider the issue of descriptiveness by looking at the mark in its entirety.
However, “if one must exercise mature thought or follow a multi-stage
reasoning process in order to determine what product or service characteristics the
term indicates, the term is suggestive rather than merely descriptive.” In re Tennis
in the Round, Inc., 199 USPQ 496, 498 (TTAB 1978). See also, In re Shutts, 217
USPQ 363, 364-365 (TTAB 1983); In re Universal Water Systems, Inc., 209 USPQ
165, 166 (TTAB 1980). In this regard, “incongruity is one of the accepted guideposts
in the evolved set of legal principles for discriminating the suggestive from the
descriptive mark.” In re Shutts, 217 USPQ at 365. See also In re Tennis in the
Round, Inc., 199 USPQ at 498 (the association of applicant’s mark TENNIS IN THE
ROUND with the phrase “theater-in-the-round” creates an incongruity because
applicant’s services do not involve a tennis court in the middle of an auditorium).
Applicant explained that the mark GYROBALL identifies a “gyro exerciser,
that is an exercise machine held in the hand and manually-operated to function as a
wrist exerciser.”1 While applicant concedes that the term “gyro” refers to a

1 Applicant’s Brief, p. 4.
Serial No. 85301113

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gyroscope and that the term “ball” refers to a spherical object,2 applicant contends
that the relevant public will describe applicant’s product as a gyroscopic tool, not a
gyroscopic ball and, thus, “GYROBALL is a new and unique term that has given
rise to a new commercial impression.”3
However, the Trademark Examining Attorney submitted two articles using
the term “Gyro Ball” in a descriptive or generic manner. The first article entitled
“What Does A Gyro Ball Exerciser Do? was posted on the July 10, 2011
LIVESTRONG.COM website.4 The article reads, in pertinent part, as follows:
A gyro ball is a novel exercise device. Proponents claim
that the gyro ball, sold by companies under such names as
Powerball, GyroBall and Gyro Ball, can benefit you in a
number of ways. … As of publication date, there is no
research to validate these claims, although the gyro ball
operates as an isometric resistance device, which are
proven strengthening tools.
HOW IT WORKS
A gyro ball is about the size of a tennis ball. It has rotor
in the center. When it is activated, the ball starts to
rotate. …
POTENTIAL BENEFITS

2 A “gyro” is an abbreviation for a “gyroscope.” Yahoo!Education website
(http://education.yahoo.com) attached to the November 5, 2011 Office action. A “gyroscope”
is defined as follows:
A device consisting of a spinning mass, typically a disk or
wheel, mounted on a base so that its axis can turn freely in one
or more directions and thereby maintain its orientation
regardless of any movement of the base.
Id. A “ball” is defined as “[a] spherical object or entity. Id.
3 Applicant’s Brief, pp. 5-6.
4 November 5, 2011 Office action.
Serial No. 85301113

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Gyro ball manufacturers tout its ability to strengthen and
tone your arms, shoulders, wrists and hands in the same
as a dumbbell curls. …
TARGET MARKETS
In addition to weightlifters and people undergoing rehab,
manufacturers recommend gyro balls for specific sports
such as baseball, basketball, golf and tennis. …
* * *
REFERENCES
•Dynaflex International: What is a GyroBall?
•Powerballs: NSD Powerball & Sport
•The Sharper Image: GyroBall Hand Exerciser
A similar article was posted on the September 26, 2011 health section of the
eHow.com website.5
Gyro Ball Exercises
Overview
Gyro balls create torque resistance, which makes them a
great tool for strengthening the wrists, forearms, upper
arms and fingers. It is roughly the size of a tennis ball
and weighs about a half pound. The ball contains a
gyroscope, a spinning wheel inside the ball, which reacts
to your movement. …
Wrists and Forearms
Grasp the gyro ball in one hand and stretch out your arm.
…
The Examining Attorney also submitted an excerpt from the Weterm
Electronics website (weterm.com) advertising the sale of Gyro Balls.6

5 November 5, 2011 Office action.
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Serial No. 85301113

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Moreover, the fact that a term is not found in a dictionary is not controlling
on the question of registrability if the examining attorney can show, as he did here,
that the term has a well understood and recognized meaning. See In re Orleans
Wines, Ltd., 196 USPQ 516, 517 (TTAB 1977) (BREADSPRED held merely
descriptive of jellies and jams).
Finally, applicant contends that its European registration for the mark
GYROBALL is probative that the mark is not merely descriptive. However, the
Federal Circuit has held that “evidence of registration in other countries is not
legally or factually relevant to potential consumer perception of [applicant’s goods]
in the United States.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d
1828, 1835 (Fed. Cir. 2007). Even assuming the European Trademark Office
prosecution of trademark applications is similar to U.S. trademark examination
practice and procedure, the European Trademark Office decision to register
GYROBALL does not bind the Board. The Board must decide each case on its own
merits and assess each mark on the record of public perception submitted with each
application. In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001). Section 20 of the Trademark Act, 15 U.S.C. § 1070, gives the Board the
duty and authority to decide an appeal from an adverse decision of the Examining
Attorney. This duty may not be delegated by adoption of the conclusions reached by
a different trademark office. See In re Sunmarks Inc., 32 USPQ2d 1470, 1472
(TTAB 1994).
Decision: The refusal to register is affirmed.