Harman International Industries, Incorporated

Trademark Trial and Appeal Board

Jul 23, 2020

87847121 (T.T.A.B. Jul. 23, 2020)

Mailed: July 23, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Harman International Industries, Inc.
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Serial No. 87847121
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Gregory Kenyota, Esq. for Harman International Industries, Inc.

Harini Ganesh, Trademark Examining Attorney, Law Office 122,
Kevin Mittler, Managing Attorney.
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Before Taylor, Mermelstein and Adlin, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant Harman International Industries, Inc. seeks a Principal Register
registration, or in the alternative a Supplemental Register registration, of
PRIVACYSWITCH, in standard characters, for “camera and microphone shutters as
a component feature of audio and video products which feature cameras and
microphones; camera and microphone shutters as a component feature of audio and
video products which feature displays, speakers and soundbars.”1 The Examining
Attorney refused registration on the Principal Register under Section 2(e)(1) of the

1 Application Serial No. 87847121, filed March 23, 2018 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), based on an alleged intent to use the mark in commerce, and later
amended to allege first use dates of July 2018.
This Opinion is Not a
Precedent of the TTAB
Serial No. 87847121
2
Trademark Act, on the ground that Applicant’s proposed mark is merely descriptive
of its identified goods. After the refusal became final, Applicant appealed and filed an
amendment to allege use with a request for reconsideration seeking in the alternative
amendment of the application to the Supplemental Register. The Examining
Attorney denied the request for reconsideration of the final refusal, but accepted the
amendment to allege use, and stated that “amendment to the Supplemental Register
in the alternative is deemed acceptable and will not be an issue on appeal.” October
23, 2019 Denial of Request for Reconsideration TSDR 2. The appeal then resumed
and Applicant and the Examining Attorney filed briefs. We affirm the refusal to issue
a Principal Register registration, and therefore the application will be amended to
one seeking registration on the Supplemental Register.
I. Evidence and Arguments
The record includes the following dictionary definitions of the proposed mark’s
constituent terms:
PRIVACY—“the quality or state of being apart from
company or observation;” and “freedom from unauthorized
instrusion”

SWITCH—“a small control for an electrical device which
you use to turn the device on or off;” “to operate an
electrical switch so as to turn (a device) on or off – usually
used with on or off;” and “to change to or from an active
state – usually used with on or off”
August 15, 2019 Request for Reconsideration TSDR 15-23; April 3, 2019 Office Action
TSDR 21. July 16, 2018 Office Action TSDR 10. The Examining Attorney relies on
these definitions in arguing that “[t]he average purchaser is likely to conclude that
PRIVACYSWITCH used in relation to camera and microphone shutters refers to
Serial No. 87847121
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electrical devices used to turn the devices on and off for the function of freedom from
unauthorized intrusion without needing to use his or her imagination.” 11 TTABVUE
6.
The Examining Attorney contends that her position is supported by third-party
uses of the same term to describe products encompassed by Applicant’s identification
of goods, or the products’ features. For example, Lenovo promotes a “webcam privacy
switch” on one of its “all-in-one” computers, which “blocks your camera … to protect
your organization’s confidential materials”:

April 3, 2018 TSDR 18. Similarly, multiple consumers reviewing an HP computer
describe its webcam’s “privacy switch,” and others use similar terms such as “privacy
slider.” Id. at 22-28. The Angel Eye Camera System promotes a “bedside on/off
privacy switch.” Id. at 33. In 2015, Purism introduced “the first computer built to
respect and protect digital privacy,” featuring “privacy switches” which “turn off the
camera, microphone, WiFi, and Bluetooth, to prevent hackers, snoops, stalkers or
data thieves from compromising your privacy.” Id. at 43.
Serial No. 87847121
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The Examining Attorney also relies on descriptive uses of the term by the media,
including in describing Applicant’s involved goods. For example, an Android Police
article about Applicant’s JBL Link Bar2, a soundbar with Google Assistant and
Android TV built in, states that the product “has a privacy switch for far-field
microphones that lets you turn them off.” April 3, 2019 Office Action TSDR 19-20. A
Technowize Magazine article about the JBL Link View Smart Display indicates that
it is “powered by a 5MP front-facing camera which has a privacy switch that enables
you to put off the camera and microphone.” Id. at 18. The Verge article entitled “HP
updates Envy laptops with Alexa and webcam privacy switch” indicates that the
privacy switch is “located on the side of the laptops, and it will disconnect the webcam
from the machine.” Id. at 14-15. A Neowin article about Lenovo’s ThinkBook states
that “[i]t also has a ThinkShutter privacy switch in the camera, so there’s no more
putting tape over your lock screen.” September 9, 2019 Denial of Request for
Reconsideration TSDR 10.
While the term is often used to describe a physical camera or microphone switch
which protects privacy by turning off or covering a device, the term is sometimes used
more broadly than that, to describe a software-based “switch” intended to protect
privacy. This type of switch apparently performs the same function as a “shutter,”
which is the essence of Applicant’s identification of goods. For example, a Forbes
article about the PineBook Pro Linux Laptop describes its keyboard, which “has a

2 Applicant’s specimen of use includes the “JBL by Harman” logo ( ), revealing Applicant
as a source of JBL products. September 24, 2019 Amendment to Allege Use TSDR 3-6.
Serial No. 87847121
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special firmware that lives on, and operates separately of, the operating system.”
When the F1, F2 or F3 keys are pressed, “the keyboard firmware cuts power” to the
Bluetooth/WiFi module, webcam or microphone. This type of “switch” is “highly
secure since the firmware that dictates if peripherals get powered is not part of the
Pinebook Pro’s operating system. The power state value for each peripheral also
cannot be overridden from the operating system.” Id. at 7-9.
While Applicant sometimes displays the term PRIVACYSWITCH in initial capital
letters and sometimes includes the trademark symbol (™) with the proposed mark,
the Examining Attorney argues that Applicant’s own use of the term is nevertheless
descriptive. For example, Applicant’s press release announcing the JBL Link Bar
describes one of the product’s features as “PrivacySwitch™ for far-field
microphones: Ensure the highest level of security and privacy and leave hackers
out of the house.” April 3, 2019 Office Action TSDR 6-8. One of Applicant’s specimens
of use describes the purpose of the Link Bar’s switch similarly, indicating that it
“enables to mute your soundbar microphones for extra privacy and security protection
when not using the Google Assistant”:

Serial No. 87847121
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September 24, 2019 Amendment to Allege Use TSDR 4. Another specimen indicates
that Applicant’s PrivacySwitch functions as a “camera shutter and microphone mute
switch,” which “ensures highest level of security and privacy, leaves hackers out of
the house”:

Id. at 3. Furthermore, while Applicant’s specimens display the term in question in
the manner of a trademark, those marketing the product (whether Applicant or one
of its partners) do not always display the term that way, as shown in this listing for
its Citation Smart Speaker:

Id. at 11.3

3 Harman Kardon is another of Applicant’s brands. April 3, 2019 Office Action TSDR 8.
Serial No. 87847121
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Applicant argues that “PRIVACYSWITCH is an incongruous way to identify
Applicant’s goods, as the only conceivable meaning of ‘PRIVACYSWITCH’ would be
a switch for privacy, i.e. a switch that turns on and off privacy,” and “Applicant’s
goods cannot completely turn on and off” consumers’ privacy, which is impossible. 9
TTABVUE 6. That is, Applicant appears to suggest that because its goods can only
increase or ensure privacy in certain ways, the term PRIVACYSWITCH is not merely
descriptive. Applicant further argues that the Examining Attorney improperly
dissected the proposed mark, which is not merely descriptive in its entirety, and
followed a “multi-stage reasoning process to determine that PRIVACYSWITCH is
descriptive of Applicant’s goods.” Id. at 9-10.
Finally, Applicant relies on seven third-party registrations which it alleges are
analogous to, and support the registration of, its proposed mark, specifically:
MARK/REG. NO. GOODS/SERVICES
PRIVACY BOARD (BOARD dis-
claimed)

Reg. No. 4173739
Pre-engineered acoustical insulation
barrier system comprising mineral fiber
board panels and air distribution sound
attenuation silencer units for use be-
tween office areas from the top of the
partition walls to the underside of the
ceiling deck above
PRIVACY PANTS (PANTS disclaimed)

Reg. No. 5115223
Medical wearing apparel, namely, scrub
pants
PRIVACY POUCH (POUCH dis-
claimed)

Reg. No. 5003764
Locking pouches of textile

Reg. No. 1829743
providing information about social se-
curity records

Serial No. 87847121
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providing members with financial infor-
mation on themselves and their fami-
lies; namely, consumer credit infor-
mation, credit card information, credit
rating; paying rewards for return of
members lost or stolen wallets

consumer membership services which
furnish hospitals and other health care
providers with medical information on
which members have pre-registered

PRIVACYSHIELD

Reg. No. 5055763
Architectural products, namely, sound
barriers and sound blockers composed
primarily of non-metal materials, used
to create speech privacy in office spaces
PRIVACYTALK

Reg. No. 2443078
Wireless communication equipment,
namely, transceivers, mobile transceiv-
ers, and handheld transceivers
PRIVACYVIEW

Reg. No. 5707879
Anti-glare filters for televisions and
computer monitors; computer monitors

Applicant argues that these registrations “raise doubt as to the descriptiveness of the
term PRIVACY when used in connection with another descriptive or even generic
term.” Id. at 11.
II. Analysis
Here, the record leaves no doubt that PRIVACYSWITCH is merely descriptive of
Applicant’s goods because it “immediately conveys knowledge of a quality, feature,
function, or characteristic” of them. In re Chamber of Commerce of the U.S., 675 F.3d
1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960,
82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); In re Abcor Dev., 588 F.2d 811, 200 USPQ
215, 217-18 (CCPA 1978). Indeed, Applicant’s specimen for the JBL Link View
Serial No. 87847121
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indicates that PrivacySwitch functions as a “microphone mute switch” (and camera
shutter) which “ensures highest level of … privacy” leaving “hackers out of the
house.” September 24, 2019 Amendment to Allege Use TSDR 3 (emphasis added).
“Evidence of the context in which a mark is used on labels, packages, or in advertising
material directed to the goods is probative of the reaction of prospective purchasers
to the mark.” In re Abcor Dev. Co., 200 USPQ at 218; In re Promo Ink, 78 USPQ2d
1301, 1303 (TTAB 2006); see also In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d
1707, 1709-10 (Fed. Cir. 2017); In re Hunter Fan Co., 78 USPQ2d 1474, 1476 (TTAB
2006) (“applicant’s own use of the term ERGONOMIC … highlights the descriptive
nature of this term ….”).
As Applicant’s own use of the proposed mark shows, the terms “privacy” and
“switch” are each merely descriptive of Applicant’s goods (switches which provide
privacy), and when those terms are combined, the resulting combination
PRIVACYSWITCH does not evoke a new or unique commercial impression. To the
contrary, in Applicant’s proposed mark, each component retains its merely
descriptive significance in relation to the goods, as Applicant’s, third-parties’ and
media uses amply demonstrate. The composite term PRIVACYSWITCH is therefore
merely descriptive. See, e.g., In re Oppedahl & Larson LLP, 373 F.3d 1171, 71
USPQ2d 1370 (Fed. Cir. 2004) (PATENTS.COM merely descriptive of computer
software for managing a database of records that could include patents, and for
tracking the status of the records by means of the Internet); In re Petroglyph Games,
Inc., 91 USPQ2d 1332 (TTAB 2009) (BATTLECAM merely descriptive for computer
Serial No. 87847121
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game software); In re Carlson, 91 USPQ2d 1198 (TTAB 2009) (URBANHOUZING
merely descriptive of real estate brokerage, real estate consultation and real estate
listing services); In re Tower Tech Inc., 64 USPQ2d 1314 (TTAB 2002)
(SMARTTOWER merely descriptive of commercial and industrial cooling 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).
Applicant’s argument that PRIVACYSWITCH is “incongruous” is not well taken.
Not only does Applicant fail to explain what the alleged incongruity is specifically,
but it fails to even acknowledge that its own, third-parties’ and media uses of the
composite term are entirely consistent with how the individual constituent terms are
typically defined. Perhaps more importantly, Applicant concedes that “the only
conceivable meaning of ‘PRIVACYSWITCH’ would be a switch for privacy.” The
record reveals that is exactly what Applicant’s goods are, a switch for privacy,
whether the “switch” is a shutter for a webcam lens, a dial which mutes a microphone,
or a button on a keyboard which disables WiFi or Bluetooth; and whether the
“privacy” is reclaimed from hackers, service providers, employers, investigators or
parents.4 Thus, a “multi-stage reasoning process” is not required to find the term
descriptive.

4 It is irrelevant that Applicant’s goods are incapable of protecting consumers’ privacy in all
its forms. It is sufficient for a finding of descriptiveness that the goods protect certain (mostly
electronic) types of privacy. In fact, the standard is not whether the proposed mark describes
all qualities, features, functions or characteristics of the goods, but rather whether the
proposed mark describes any quality, feature, function or characteristic of them.
Serial No. 87847121
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Finally, the seven third-party registrations for terms Applicant alleges to be
analogous to its proposed mark do not compel a different result. Not only did
Applicant fail to introduce any evidence from these registration files, or otherwise
demonstrate how the registered terms are used or perceived, neither the existence of
third-party registrations nor any of the evidence in their prosecution records (even if
it was of record) compels a specific result in later, allegedly analogous cases. See, e.g.,
Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1377
(Fed. Cir. 2018) (“these prior registrations do not compel registration of [Applicant’s]
proposed mar[k]”) (citing In re Cordua Rests., Inc., 823 F.3d 594, 600 (Fed. Cir. 2016)
(“The [US]PTO is required to examine all trademark applications for compliance with
each and every eligibility requirement, . . . even if the [US]PTO earlier mistakenly
registered a similar or identical mark suffering the same defect.”)); In re Shinnecock
Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221 (Fed. Cir. 2009) (“Even if all of
the third-party registrations should have been refused registration under section
1052(a), such errors do not bind the USPTO to improperly register Applicant’s
marks.”); In re Cooper, 254 F.2d 611, 117 USPQ 396, 401 (CCPA 1958) (“the decision
of this case in accordance with sound law is not governed by possibly erroneous past
decisions by the Patent Office”). As we recently stated in an analogous situation, to
the extent that our decision here is inconsistent with the cited third-party
registrations, “it is the decision required under the statute on the record before us.”
In re Ala. Tourism Dept., 2020 USPQ2d 10485, *11 (TTAB 2020).
Serial No. 87847121
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III. Conclusion
There is no doubt that PRIVACYSWITCH – which Applicant concedes means “a
switch for privacy” − is merely descriptive of Applicant’s goods featuring controls
which prevent unauthorized intrusion or observation. Applicant’s competitors use
“privacy switch” to describe functionally similar products and should, like Applicant,
have the opportunity to continue to do so. See In re Boston Beer Co. L.P., 47 USPQ2d
1914, 1920-21 (TTAB 1998), aff’d, 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999);
In re Abcor Dev., 200 USPQ at 217 (“The major reasons for not protecting [merely
descriptive] marks are … to maintain freedom of the public to use the language
involved, thus avoiding the possibility of harassing infringement suits by the
registrant against others who use the mark when advertising or describing their own
products.”).

Decision: The refusal to register Applicant’s proposed mark on the Principal
Register under Section 2(e)(1) of the Trademark Act is affirmed. Applicant’s
alternative amendment of the application to seek a Supplemental Register
registration is accepted, and the application will proceed to registration.