Innotek Pet Products, Inc.

Trademark Trial and Appeal Board

Dec 2, 1999

No. 75211532 (T.T.A.B. Dec. 2, 1999)

Paper No. 9
LKM
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC. 2, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Innotek Pet Products, Inc.
________
Serial No. 75/211,532
_______
Jerry E. Hyland and Michael S. Gzybowski of Barnes &
Thornburg for applicant.
Richard Y. Kim, Trademark Examining Attorney, Law Office 102
(Thomas V. Shaw, Managing Attorney).
_______
Before Quinn, Chapman and McLeod, Administrative Trademark
Judges.
Opinion by McLeod, Administrative Trademark Judge:
An intent-to-use application has been filed by Innotek
Pet Products, Inc. to register COW TEMP for “temperature
sensing devices for bovines, namely, electronic temperature
sensors and data transmitters.”1
The Trademark Examining Attorney has refused
registration under Section 2(e)(1) of the Act, 15 U.S.C. §

1 Application Serial No. 75/211,532, filed December 11,
1996, under Section 1(b) of the Trademark Act, 15 U.S.C. §
1051(b).
Ser No. 75/211,532
2
1052(e)(1), on the ground that applicant’s designation, when
applied to applicant’s goods, is merely descriptive.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs. An
oral hearing was not requested.
Applicant argues that the mark is suggestive, and that
it does not immediately convey a significant function,
attribute or purpose of applicant’s products to the relevant
public. According to applicant, the word “cow” refers not
only to female cattle, but also to other animals such as
whales, elephants or moose. Similarly, applicant submits
that the term “temp” is a widely used abbreviation with
several different meanings. Applicant concludes that the
combination of the two words -- COW TEMP -- creates a
unitary mark which serves to identify and distinguish
applicant’s goods from those of others. Applicant also
maintains, among other things, that neither competitors nor
the articles cited by the Examining Attorney use COW TEMP in
a descriptive manner.
The Examining Attorney, for his part, argues that the
applied-for mark is merely descriptive of applicant’s goods.
In particular, the Examining Attorney contends the mark
immediately conveys to consumers that applicant’s devices

Ser No. 75/211,532
3
measure or sense bovine (or cow) temperature. According to
the Examining Attorney, the evidence of record shows that
“cow temperature,” the abbreviation of which is “cow temp,”
is frequently used in a descriptive manner to refer to
devices similar to those of applicant. The Examining
Attorney asserts, among other things, that the combined
designation “cow temp” creates no incongruity, and no
imagination is required to understand that applicant’s
“temperature sensing devices for bovines” measure cow
temperature. In support of the refusal to register, the
Examining Attorney submitted dictionary definitions and
evidence from the NEXIS database.
A term is merely descriptive of goods, within the
meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C. §
1052(e)(1), if it immediately describes a quality,
characteristic or feature thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods. In re Quik-Print Copy Shops, Inc., 616 F.2d
523, 205 USPQ 505 (CCPA 1980), citing In re Abcor
Development Corp., 588 F.2d 811, 813-14, 200 USPQ 215, 217-
18 (CCPA 1978). It is not necessary that a term describe
all of the properties or functions of the goods in order for
it to be considered to be merely descriptive thereof;
rather, it is sufficient if the term describes a significant
Ser No. 75/211,532
4
attribute about them. In re Gyulay, 820 F.2d 1216, 1218, 3
USPQ2d 1009, 1010 (Fed. Cir. 1987). Furthermore, whether a
term is merely descriptive is determined not in the abstract
but in relation to the goods for which registration is
sought. Abcor Development, 588 F.2d at 814, 200 USPQ at
218; In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB
1979).
After careful review of the record, we agree with the
Examining Attorney that the term COW TEMP, when used in
connection with the identified goods, immediately describes
a significant purpose of applicant’s product, namely that
the temperature sensing devices for bovines measure or sense
cow temperature.
As noted by the Examining Attorney, the term “cow” is
defined as “a domesticated bovine of either sex or any age.”
Webster’s Third New International Dictionary 525 (1971).
The term “temp” is defined as an abbreviation for
“temperature.” Acronyms, Initialisms & Abbreviations
Dictionary 2552 (1995).
The NEXIS evidence submitted by the Examining Attorney
during prosecution also demonstrates that the combined term
“cow temperature” is regularly used to describe products
similar to, if not the same as, applicant’s products. For
example, the NEXIS evidence shows the following uses:
Ser No. 75/211,532
5
“With Lefcourt’s system, a cow’s temperature
also can be monitored ‘to detect when a cow is
in heat, or estrous, and is ready to be bred.’”
Amal Kumar Kaj, Odds and Ends, Wall St. J.,
December 28, 1992 at B1. (emphasis added).
“By having a thermometer, you could have
checked your cows temperature [sic] when she
first refused to eat the grain. After
determining fever, you could have called your
vet and started early antibiotic treatment.”
Jan J. Mettler, Jr., Keeping Pastures Safe;
Preventing Lifestock Diseases, Mother Earth
News, April, 1992, at 43. (emphasis added).
“For five days after calving cows’ temperatures
are taken once a day. When temperatures are
more than 1C (33.8F) above normal, cows are
treated.” Jessica Buss, Management Keeps
Disease to Minimum, Farmers Weekly, August 8,
1997, at 40. (emphasis added).
We reject applicant’s contention that the combined
designation “cow temp” creates a unique, suggestive mark.
There is nothing unique or incongruous about the
combination. See In re National Shooting Sports Foundation,
219 USPQ 1018 (TTAB 1983) and cases cited therein. On the
contrary, the dictionary definitions and NEXIS evidence
establish that “cow temp” is merely a shortened form of the
common phrase “cow temperature,” and that the relevant
consumers would certainly understand this plain meaning when
the designation is used with applicant’s bovine temperature
sensing devices.
Ser No. 75/211,532
6
In this regard, the present situation differs from the
cases relied upon by applicant in which admittedly
descriptive terms, when combined, were found to result in a
composite which was not merely descriptive. See In re
Colgate-Palmolive Co., 406 F.2d 1385, 160 USPQ 733 (CCPA
1969); In re Kopy Kat, Inc., 498 F.2d 1379, 182 USPQ 372
(CCPA 1974); In re Capital Cities Communications, Inc., 193
USPQ 111 (TTAB 1976); In re Tennis in the Round, Inc., 199
USPQ 496 (TTAB 1978). We believe that this case falls in a
line of cases where two descriptive terms, when combined,
remain merely descriptive. See e.g. In re Gould Paper
Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112 (Fed. Cir.
1987)(term "SCREENWIPE" formed from combination of words
"SCREEN" and "WIPE" held unregistrable for a "pre-moistened,
anti-static cloth for cleaning computer and television
screens"); Quik-Print, supra (QUIK-PRINT held merely
descriptive for printing and photocopying services); In re
Orleans Wines, Ltd., 196 USPQ 516 (TTAB 1977)(BREADSPRED
merely descriptive of jellies and jams).
Furthermore, the fact that the individual terms may
encompass other meanings is not persuasive of a different
result. See In re Acuson, 225 USPQ 790 (TTAB 1985). We are
not persuaded that, when “cow temp” is viewed in the context
Ser No. 75/211,532
7
of applicant’s temperature sensing devices for bovines,
consumers would consider these other possible meanings.
Also, the fact that neither competitors nor the media
utilize the exact terminology “cow temp” in reference to
temperature devices does not mean that the term is
suggestive, rather than merely descriptive of applicant’s
goods. As the Examining Attorney correctly observed, the
fact that applicant may intend to be the first or only user
of the composite designation does not justify registration.
See In re Eden Foods Inc., 24 USPQ2d 1757, 1761 (TTAB 1992),
citing National Shooting Sports, supra.
Decision: The refusal to register is affirmed.
T. J. Quinn
B. A. Chapman
L. K. McLeod
Administrative Trademark
Judges, Trademark
Trial and Appeal Board
Ser No. 75/211,532
8