Galaxy Metal Gear, Inc.v.Direct Access Technology, Inc.

Trademark Trial and Appeal Board

Aug 10, 2010

No. 91184213 (T.T.A.B. Aug. 10, 2010)

Mailed: August 10, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Galaxy Metal Gear, Inc.
v.
Direct Access Technology, Inc.
_____

Opposition No. 91184213
To Application No. 78914975
_____

Jen-Feng Lee of LT Pacific Law Group, for Galaxy Metal Gear,
Inc.

Michael C. Olson, Esq., for Direct Access Technology, Inc.

_____

Before Quinn, Grendel, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

The opposer in this case is Galaxy Metal Gear, Inc.
(Opposer). The applicant is Direct Access Technology, Inc.
(Applicant). The mark at issue for opposition is METAL
GEAR, in standard character format, for “enclosures for
external computer hard drives,”1 in International Class 9.

1 Application No. 78914975, filed June 22, 2006, under Section
1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging first
use and first use in commerce on May 14, 2003, and disclaiming
the exclusive right to use the term “METAL” apart from the mark
as shown.
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Opposition No. 91177853
2
In the Notice of Opposition, filed on February 20,
2008, opposer alleged that applicant obtained its notice of
allowance by committing fraud on the Office. In particular,
the notice alleges that “Applicant committed fraud at the
time it filed its application to the United States Patent
and Trademark Office when it represented that it is the
first user and real owner of the Metal Gear mark.” (Notice,
at Para. 8). Instead, the notice alleges “Both Opposer and
Applicant purchased products with Metal Gear mark from a
foreign supplier known as Data Stor [sic], who is the real
owner and first user of Metal Gear mark in U.S. Commerce.”
(Notice, at Para. 6).
The opposition notice additionally alleges that
applicant’s METAL GEAR mark “is merely descriptive of the
goods used in connection thereto, in violation of Trademark
Act section 2(e)(1), and it is thus not entitled to
registration.” (Notice, at Para. 9).
Applicant denied the salient allegations of the notice
of opposition in its answer, and asserted several
affirmative defenses including opposer’s lack of standing,
which we shall discuss herein. Both parties filed trial
briefs, and applicant filed a reply brief.
The Record and Evidentiary Issues
The record in this proceeding consists of the pleadings
and the file of the METAL GEAR application. 37 C.F.R. §
2.122(b). Opposer filed various notices of reliance,
including on:
Opposition No. 91177853
3
1. A cross-complaint filed in a state court
action between the parties2;
2. Third-party registrations that contain either
the term “METAL” or “GEAR,” where such term is
disclaimed; and
3. The discovery deposition of a third-party
witness, Momo Chen, a former employee of
DataStor, based on her unavailability as a
trial witness in the United States under
Trademark Rule 2.120(j)(2).3
Applicant, in turn, filed various notices of reliance
including on:
1. The discovery deposition of an officer of
opposer, Anthony Tan (appropriate under
Trademark Rule 2.120(j)(1)));
2. A third-party registration for the mark “METAL
GEAR” for “flashlights” where the term “METAL”
is disclaimed.4;
3. Papers filed in TTAB Opposition proceeding
number 91174214, to show that opposer lacks
standing in the current proceeding, and which

2 Opposer also introduced the cross-complaint as an exhibit to
the Wang December 9, 2009 deposition. The purpose of introducing
the state court proceedings was apparently to address applicant’s
argument that opposer lacks standing. We address the standing
arguments under that separate section herein marked “Standing.”
3 As noted by the Board in its order of August 24, 2009, this
discovery deposition is entitled to entry as a trial deposition
due to the location of the witness in Taiwan and the inability of
the offering party to obtain her presence at a trial deposition.
4 Registration No. 3190111, issued December 26, 2006 in
International class 11.
Opposition No. 91177853
4
we will discuss herein, under the separate
section marked “Standing”; and
4. A photograph of its product.
Opposer filed a request for judicial notice of the
dictionary definitions of “metal” and “gear,” which we will
discuss herein, under the separate section marked “Merely
Descriptive.” Applicant, in turn, filed a request for
judicial notice that there is an “absence” of a dictionary
definition for the composite term “metal gear,” We will
discuss that herein as well, under that same section.
The record also contains the trial depositions of the
following witnesses:
1. Patrick Wang, Vice-President, Sales and
Marketing, Direct Access Technology, dated
July 16, 2009.
2. Patrick Wang, dated November 2, 2009.
3. Patrick Wang, dated December 9, 2009.
4. Anthony Tan, Vice-President of Sales and
Marketing for Galaxy Metal Gear, dated July
16, 2009.
Applicant raised various evidentiary objections in its
trial brief, which we now address. First applicant objected
to the deposition transcript of Momo Chen. Applicant raised
three overriding objections to the entry of Momo Chen’s
deposition transcript by opposer, 1) it “does not appear to
have been signed by the witness, and this requirement was
not waived on the record”; 2) “the transcript is not even
Opposition No. 91177853
5
authenticated by the court reporter”; and 3) “Finally, the
transcript is incomplete because the exhibits identified at
the deposition are not attached. Accordingly it should be
stricken from the record,” citing TBMP 703.01(j) and (k) (2d
ed. rev. 2004). Opposer submitted the deposition transcript
of Momo Chen into evidence via Notice of Reliance on July
14, 2009. Applicant did not raise these objections to the
testimony until submitting its trial brief on March 18,
2010.5 Indeed, the Board ruled via an order dated August
24, 2009 that the discovery deposition of Momo Chen would be
entered into evidence pursuant to Trademark Rules
2.120(j)(2) and (3)(i). The Board has stated that failure
to obtain a witness’s signature at deposition “is not a
fatal defect” and may be waived by the failure of counsel to
timely object. See Syngenta Crop Protection Inc. v. Bio-
Check LLC, 90 USPQ2d 1112, 1116 (TTAB 2009), citing Tampa
Rico Inc. v. Puros Indios Cigars Inc., 56 USPQ2d 1382, 1383
(TTAB 2000). In that case, the Board found that “[b]y
waiting until after trial, applicant waived its right to
object to the unsigned testimony.” We find that here as
well. As for the exhibits, opposer cured that defect by
submitting them with its reply brief. Accordingly,
applicant’s objections to the Momo Chen deposition are
overruled. As for applicant’s objections to the testimony

5 Applicant did file an objection to the introduction of the
discovery deposition as trial testimony via an objection filed on
July 22, 2009, but did not mention these particular objections.
Opposition No. 91177853
6
itself, we will consider it for whatever probative value it
may have.
Applicant made similar objections to the deposition
testimony of Anthony Tan. Our ruling is the same, to the
extent that applicant failed to object in a timely manner,
and opposer submitted a signature page with its reply brief.
Again as for applicant’s objections to the testimony itself,
we will consider it for whatever probative value it may
have.
Applicant further objected to certain testimony taken
by opposer of applicant’s principal Patrick Wang. As for
applicant’s objections to the testimony itself, we will
consider it for whatever probative value it may have. We do
not deem the rebuttal questions to have gone beyond the
proper scope.
Finally, applicant objected to an attachment to
opposer’s trial brief. The attachment is a complaint filed
in the Superior Court of California, County of Los Angeles,
Central District, Case No. BC382375, by opposer against
applicant for defamation, false advertisement, unfair
competition, and interference with economic relationship.
Although opposer had readily offered the cross-complaint
from the same court case into evidence via a notice of
reliance (that is, the cross-complaint by applicant against
opposer) as well as by deposition testimony, opposer had not
taken the opportunity to enter its own complaint into
evidence in this proceeding. Accordingly, we consider
Opposition No. 91177853
7
opposer’s attempt to enter the complaint into evidence with
its trial brief to be untimely. Applicant’s objection is
sustained.6
Standing
Applicant contends that opposer has no standing to
bring this action. In particular, in its trial brief,
applicant alleged that opposer has no standing due to its
inability to use the term “METAL GEAR” as part of its own
mark.7 (applicant’s brief at 15-18). In this regard,
applicant discussed a prior Board proceeding between the
parties, as well as deposition testimony given by opposer’s
officer, Anthony Tan. Applicant’s argument is flawed for
several reasons. First, although opposer abandoned its
application for the mark “GALAXY METAL GEAR” in TTAB
proceeding No. 91174214, without that registration, opposer
is still entitled to rely on whatever common-law or other
rights to use the mark it may have. Second, opposer has
established that it is a competitor of applicant, which
applicant has admitted as well, both in its brief and in the
deposition testimony of its principal, Patrick Wang.
In its brief, applicant stated:

6 In any event, since opposer was apparently attempting to use
the state lawsuit as a vehicle to prove its standing, the entry
of the complaint into evidence would not have influenced our
decision in this proceeding, as discussed herein in the separate
section marked “Standing.”
7 Opposer objected in its reply brief that applicant had raised
this issue for the first time in its trial brief. This is not
correct. Applicant had raised opposer’s lack of standing as an
affirmative defense in its answer, citing both the principles of
“res judicata” and the disposition of TTAB proceeding no.
91174214.
Opposition No. 91177853
8

“Opposer is a corporation owned, in part, by
individuals who were prior employees of Applicant,
Direct Access Technology, Inc. Opposer is owned
by Antonio (Tony) Tan, Garry Ching and Geoffrey
Ching, who are all officers in Applicant [sic].
(TT of Tan, page 16, lines 3-12)). At one time,
Garry Ching and Geoffrey Ching were employees of
Applicant. (TT of Tan, page 22, lines 11-14).
They opened Opposer to compete with Applicant,
selling the same goods as Applicant sells under
the same or a confusingly similar mark as
Applicant’s mark. Previously, Opposer tried to
register the mark GALAXY METAL GEAR BOX.
Applicant successfully opposed that registration,
with Opposer agreeing to abandon its application
and change its mark. (TTAB proceedings No.
91174214) (TT of Tan, page 37, line 18 – page 39,
line 10).” (appl’s brief p11)(#43, 12 of 41).
In the testimony of its principal, Patrick Wang stated
that its supplier, DataStor, sold enclosures for computer
external hard drives under the mark METAL GEAR to
“TechDepot, which means also Galaxy Metal Gear, Inc.” (Wang
July 16, 2009 depo. at 31). Finally, Anthony Tan, officer
of opposer, responded to the following at his deposition:

Q: Okay. Now, two of your co-owners of Galaxy
Metal Gear, Gary Ching and Jeff Ching, they used
to work for Direct Access, DAT. Right?

A: Right.

Q: And then they left and associated with
TechDepot and then with Galaxy Metal Gear.
Correct?

A: Yes.
(Tan July 16, 2009 depo. at 22)
It is clear from this testimony and admissions that
applicant and opposer are competitors in their industry.
Generally, an opposer must only show a “personal interest in
the outcome of the proceeding” as well as “a reasonable
Opposition No. 91177853
9
basis for belief of damage.” See Books on Tape Inc. v. The
Booktape Corp., 5 USPQ2d 1301, 1302 (Fed. Cir. 1987)
(petitioner, as a competitor of respondent, “clearly has an
interest in the outcome beyond that of the public in general
and has standing.”) It is not necessary that an opposer
allege or establish its own prior rights in the marks at
issue. Id.
We find that opposer has established its standing in
this action.
Background and Findings of Fact
Both applicant and opposer are in the business of
selling, among other things, computer hard drive enclosures
(see Wang November 2, 2009 depo at 7; Tan July 16, 2009 depo
at 6). Both sell to the computer industry rather than to
the end user. Id. A computer hard drive enclosure was
described by one witness as follows:

Q: Can you describe for the the [sic] record,
what is a computer hard drive enclosure?

A: Enclosure with a PCB, which is hooked up to
the external hard drive and once you install the
hard drive, you connect the enclosure into your
PC externally.

Q: Basically the product consists of a case that
will hold a hard drive and a printed circuit
board or PC board and some kind of cable or other
means that connect to the computer?

A: Yes.
(Wang November 2, 2009 depo at 6-7).
Applicant began selling computer hard drive enclosures
in 2000. (Id. at 9). At the time, it was buying from a
Opposition No. 91177853
10
company called Welland. Id. The product itself was not
labeled with a mark. Id. The packaging was labeled with
the company’s name, Direct Access Technology, or “DAT.” (at
9). Applicant works with several “OEMS,” or “original
equipment manufacturers” for creation of its computer hard
drive enclosures. (Id. at 15). In 2002, applicant began
working with a new OEM, DataStor. (Id. at 10). Applicant
introduced DataStor to the enclosure business, since
DataStor had previously not sold or manufactured computer
hard drive enclosures. Id. at 9. Shortly after beginning a
relationship with DataStor, applicant’s principal, Patrick
Wang, came up with the idea to put a mark on the computer
hard drive enclosures themselves, rather than just on the
packaging. Id. at 11-12. After considering several names,
he decided on the mark METAL GEAR. Id. From that time on,
applicant asked its OEMs, including DataStor, to put the
mark METAL GEAR, on applicant’s computer hard drive
enclosures. Id. Applicant continued to put its own company
name on the packaging. Id. Applicant offers a warranty on
the enclosures, with instructions for consumers to contact
applicant (not DataStor or the other OEMs) with any product
concerns. Id. at 15.
When applicant came up with the idea to begin
manufacturing computer hard drive enclosures under the mark
METAL GEAR, it gave specifications to DataStor, its OEM, on
how to build the enclosures. Id. at 13-14. Applicant owned
the tooling for the enclosures being built at the factories
Opposition No. 91177853
11
by DataStor and by its other OEMs. Id. at 13. Applicant
set up exclusivity agreements with its OEMs, including
DataStor, for sales in the United States. Id. at 14.
However, DataStor did not abide by the exclusivity
arrangement. Opposer’s witness testified as follows:

Q: And are you aware of DataStor selling Metal
Gear enclosures to other companies?

A: Yes.

Q: Who are they?

A: They sold to DAT, CompUSA, and us.
(Tan July 16, 2009 depo. at 11).
A third-party witness who had been a sales
representative for DataStor in the time period 2004 to 2007
also testified regarding the Metal Gear enclosure: “We sold
it to DAT, Galaxy, CompUSA.” (Chen testimony at 20).
Applicant terminated its relationship with DataStor around
2005. Id. (Wang November 2, 2009 depo. at 12.
Opposer was created by former employees of applicant
“somewhere around 2004.” (Tan July 16, 2009 depo. at 6).
Although opposer continues to sell computer hard drive
enclosures, opposer stopped ordering enclosures with the
METAL GEAR mark “[p]robably around 2007 or late 2006” (Tan
July 16, 2009 depo. at 36-37). Applicant continues to sell
enclosures under the mark METAL GEAR. Id. at 17.

Fraud
Opposition No. 91177853
12
The first ground for cancellation is fraud. In its
trial brief, opposer contends that “Applicant committed
fraud in this application because of Applicant’s knowing
false contention that Applicant owns the mark ‘Metal Gear’
for computer enclosures.” (Oppr’s brief at 4). Opposer
further asserts that rather than being the owner of the
mark, applicant is a “mere importer and distributor” of
goods sold under the mark, whereas the owner of the mark is
a company called DataStor. Id. at 3.
The Court in In re Bose Corp., 476 F.3d 1331, 91 USPQ2d
1938, 1939 (Fed. Cir. 2009), set out the relevant standard
for proving fraud:
Fraud in procuring a trademark
registration or renewal occurs when an
applicant knowingly makes false,
material representations of fact in
connection with his application.”
Torres v. Cantine Torresella S.r.l., 808
F.2d 46, 48 [1 USPQ2d 1483] (Fed. Cir.
1986). A party seeking cancellation of
a trademark registration for fraudulent
procurement bears a heavy burden of
proof. W.D. Byron & Sons, Inc. v. Stein
Bros. Mfg. Co., 377 F.2d 1001, 1004 [153
USPQ 749] (CCPA 1967). Indeed, “the
very nature of the charge of fraud
requires that it be proven ‘to the hilt’
with clear and convincing evidence.
There is no room for speculation,
inference or surmise and, obviously, any
doubt must be resolved against the
charging party.” Smith Int'l, Inc. v.
Olin Corp., 209 USPQ 1033, 1044 (TTAB
1981).

Accordingly, to prove its claim of fraud here, opposer
would need to prove “to the hilt” with “clear and convincing
Opposition No. 91177853
13
evidence” that applicant “knowingly” made a “false, material
misrepresentation of fact” regarding the ownership of the
METAL GEAR mark. In the Bose decision, the Court emphasized
that proving falsity was insufficient. Citing earlier
precedent, the Court noted, “absent the requisite intent to
mislead the PTO, even a material misrepresentation would not
qualify as fraud under the Lanham Act warranting
cancellation.” Id. at 1940, citing King Auto., Inc. v.
Speedy Muffler King, Inc., 667 F.2d 1008, 1011 n.4, 212
USPQ 801 (CCPA 1981).
Quite in contrast with that high standard, applicant’s
principal has given convincing testimony that he believed
and continues to believe that applicant is the owner of the
METAL GEAR mark:
Q: At the time the application was filed, do you
believe that Metal Gear was DAT’s trademark?

A: Yes.

Q: How about today?

A: Still is.

Q: Why do you believe it’s DAT’s trademark?

A: Because we came up with the brand name and we
contact the manufacturer to manufacture product
for us under the brand name.

Q: Who set the specifications for the product?

A: I did. DAT did.

Q: Did you personally come up with the
specifications for the product?

Opposition No. 91177853
14
A: Yes.
(Wang November 2, 2009 depo. at 17)
Even if applicant’s witness is incorrect in his belief
that applicant owns the mark, however, opposer has not
carried its heavy burden of proving the “subjective intent
to deceive,” which, the Court in Bose noted, “however
difficult it may be to prove, is an indispensable element in
the analysis.” Id. at 1941, citing Star Scientific, Inc. v.
R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1366, 88 USPQ2d
1001 (Fed. Cir. 2008).
Accordingly, since we find that opposer has not proven
“to the hilt” with “clear and convincing evidence,” the
“subjective intent” of applicant “to deceive” the USPTO by
falsely claiming ownership in the METAL GEAR mark, the claim
of fraud fails.
Merely Descriptive
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. See, e.g., 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, 217-18 (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
Opposition No. 91177853
15
enough that the term describes one significant attribute,
function or property of the goods or services. See In re
H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates,
180 USPQ 338 (TTAB 1973).
Whether a term is merely descriptive is determined not
in the abstract, but in relation to the goods or services
for which registration is sought, the context in which it is
being used on or in connection with those goods or services,
and the possible significance that the term would have to
the average purchaser of the goods or services because of
the manner of its use. That a term may have other meanings
in different contexts is not controlling. In re Bright-
Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). Moreover, it is
settled that “[t]he question is not whether someone
presented with only the mark could guess what the goods or
services are. Rather, the question is whether someone who
knows what the goods or services are will understand the
mark to convey information about them.” In re Tower Tech
Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002). See also In re
Patent & Trademark Services Inc., 49 USPQ2d 1537 (TTAB
1998); In re Home Builders Association of Greenville, 18
USPQ2d 1313 (TTAB 1990); and In re American Greetings
Corporation, 226 USPQ 365 (TTAB 1985). On the other hand,
if a mark requires imagination, thought, and perception to
arrive at the qualities or characteristics of the goods or
services, then the mark is suggestive. In re MBNA America
Opposition No. 91177853
16
Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir.
2003).
We consider a composite mark in its entirety. The
composite is registrable even if its individual terms are
descriptive, so long as the unitary mark has a separate,
non-descriptive meaning. In re Colonial Stores, Inc., 394
F.2d 549, 157 USPQ 382 (CCPA 1968) (holding SUGAR & SPICE
not merely descriptive of bakery products). Thus we
consider whether the words “METAL GEAR” have a descriptive
meaning as a unitary phrase.
Opposer argues that “METAL” describes a feature of
computer hard drive enclosures for which applicant seeks
registration – specifically metal parts therein, while
“GEAR” describes a function of the enclosures – generally,
the goods as “equipment.” To support this argument, opposer
submitted dictionary definitions of the terms at issue.”8:
Metal: 1. any of various opaque, fusible, ductile,
and typically lustrous substances that are good
conductors of electricity and heat, form cations
by loss of electrons, and yield basic oxides and
hydroxides; especially: one that is a chemical
element as distinguished from an alloy.

Gear: 2. equipment, paraphernalia.; 6. a mechanism
that performs a specific function in a complete
machine.

8 The definitions are excerpted in relevant part herein, from the
Merriam-Webster 2009 Online Dictionary as submitted by opposer.
The Board may take judicial notice of dictionary definitions.
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).
Opposition No. 91177853
17
Equipment: 1a. the set of articles or physical
resources serving to equip a person or thing as
(1) the implements used in an operation or
activity: APPARATUS . . . b. a piece of such
equipment.

Applicant, on the other hand, asks us to take judicial
notice that there is no definition of the composite term
“METAL GEAR.” Perhaps more availing, applicant additionally
points to admissions of record by opposer’s principal that
applicant’s “METAL GEAR” mark does not fit within the
meaning of “merely descriptive”:
Q: Do you have any understanding of what – if
there’s any particular meaning of “metal” in the
Metal Gear enclosures and Galaxy Metal Gear
enclosures?

A: Metal should be the metal enclosure. The
material of the actual product is made out of
metal.

Q: So enclosures, what were they made of?

A: Metal. Aluminum.

Q: Are they still made of metal today?

A: Some of them are still made of metal, and some
of them are plastic.

Q: Do you have any understanding of any particular
meaning of the word “Gear” in Galaxy Metal Gear or
Metal Gear?

A: Probably – what do you call this? – just stuff
like enclosure stuff. That’s probably gear.
(Tan July 16, 2009 depo. at 9-10).

Q: There aren’t any moving parts in the enclosure.
Are there?

A: No.

Q: That’s correct. Right?
Opposition No. 91177853
18

A: Correct.

Q: There aren’t any gears inside the enclosure.
Are there?

A: No.
(Id. at 28).

Q: You would agree that there’s nothing about the
trademark Metal Gear that says anything about the
quality of enclosures. Correct?

A: Correct.
(33-34)

Q: Okay. The term “Metal Gear” does not describe
any function of the enclosure. Does it?

A: No.

Q: The term “Metal Gear” doesn’t convey any idea
about the ingredients or the parts of the
enclosure. Does it?

A: I am not certain, but metal might be the metal.

Q: Right. But the term “Metal Gear” taken
together as one does not. Right?

A: No.

Q: That’s correct. Right?

A: Correct.
(Id. at 34).

Q: And the term “Metal Gear” doesn’t convey any
idea about a feature of the enclosure. Does it?

A: No.

Q: There’s nothing about the Metal Gear trademark
that makes you think it describes the enclosure.
Right?

A: Right.
(Id. at 35)

Opposition No. 91177853
19
Although these admissions are not binding on the Board
as legal conclusions, they are probative in our analysis.
See for example Domino’s Pizza, Inc. v. Little Caesar
Enterprises, Inc., 7 USPQ2d 1359 (TTAB 1988) (opposer’s de
facto admission of non-descriptiveness considered probative,
although not binding, on Board in determination of 2(e)(1)
claim). It is clear the term “metal” is descriptive, and
applicant has acknowledged as much by disclaiming the term.
See In re DNI Holdings Ltd., 77 USPQ2d 1435 (TTAB 2005); In
re Ampco Foods, Inc., 227 USPQ 331 (TTAB 1985). However, to
refer to computer hard drive enclosures as “gear” is at
worst suggestive. The enclosures do not inherently have any
“gears” nor can they simply be described as “equipment.”
Accordingly, we do not find the composite term as a whole to
be merely descriptive of a feature or function of the
computer hard drive enclosures for which applicant seeks
registration.
Furthermore, we note that any doubts regarding the
application of Section 2(e)(1) are to be resolved in favor
of the applicant. In re Conductive Services, Inc., 220 USPQ
84, 86 (TTAB 1983) (observing, “[w]e recognize that the
suggestive/descriptive dichotomy can require the drawing of
fine lines and often involves a good measure of subjective
judgment.”). Accordingly, we find that applicant’s METAL
GEAR mark is suggestive.
Opposition No. 91177853
20

Decision: The opposition is dismissed.