John S. Fischer

Trademark Trial and Appeal Board

Jul 28, 1997

EX (T.T.A.B. Jul. 28, 1997)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 28, 97
Paper No.16
PTH
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re John S. Fischer
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Serial No. 74/590,808
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E. Michael Byorick of Duft, Graziano & Forest for John S.
Fischer.
Susan K. Leslie, Trademark Examining Attorney, Law Office
104 (Sidney Moskowitz, Managing Attorney).
_______
Before Simms, Hanak and Hairston, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by John S. Fischer to
register the mark AIR CONTROL SCIENCE for "conducting
feasibility studies, evaluation, consultation, and
engineering in the field of dust collection systems" and
"construction, installation, and maintenance of dust
collection systems".1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the

1Application Serial No. 74/590,808 filed October 26, 1994, and
based on a bona fide intention to use the mark in commerce.
Ser No. 74/590,808
2
basis that, when used in connection with appplicant's
services, the mark is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We reverse the refusal to
register.
The Examining Attorney maintains that the mark AIR
CONTROL SCIENCE is merely descriptive of applicant's
services because it immediately conveys to prospective
purchasers information concerning the nature and purpose of
the services. In particular, the Examining Attorney states:
The term air control describes the purpose
of a dust collection system, which is air
quality control. The addition of the term
science serves to describe the scope of the
services, that they relate to the technology
itself, not any specific component.
(Final Office action, p. 1.)
According to the Examining Attorney, "[t]he term AIR
CONTROL SCIENCE literally means the science of controlling
air." (Brief, p. 5).
In support of the refusal to register, the Examining
Attorney has made of record a dictionary definition of the
word "science". In addition, as requested by the Examining
Attorney, we judicially notice from the Dictionary of
Architecture & Construction (1993), the defintion of the
term "dust collector":
An accessory device used to prevent dust,
which a tool or machine produces, from
escaping into surrounding air; suction
forces the dust-laden air into a bag or
Ser No. 74/590,808
3
chamber, where it is collected.
The Examining Attorney also conducted a search of the
Mead Data Central Nexis data base for stories containing the
term "air control." Two excerpts which the Examining
Attorney maintains are relevant are set forth below:
Air control: air conditioning, purifying and
cleaning. "Air conditioning can be extremely
effective, and decreasing humidity can be very
helpful in getting rid of dust mites and mold,
two of the major in-home allergens," says
Dr. Montanaro. (Prevention, September, 1993).
AIR CONTROL Company supplies air quality
control technologies and systems for broad
range of market segments, including power
generation, incineration and industrial
applications. (Electric Light & Power,
November, 1994).
Also, the Examining Attorney made of record copies of
three patents which she maintains show that air control
devices can control the flow of dust, rendering AIR CONTROL
SCIENCE descriptive of services relating to dust collection
systems.
Finally, in support of the refusal to register, the
Examining Attorney relies on applicant's disclaimer of the
term AIR CONTROL SCIENCE in a companion application for the
mark AIR CONTROL SCIENCE and design for services identical
to those herein.
Applicant has submitted the declaration of Gary Tooker,
a professional engineer. Mr. Tooker is an employee of
applicant and has extensive experience in the field of dust
emission control. According to Mr. Tooker, "air control" is
Ser No. 74/590,808
4
not a commonly used term to describe dust collection systems
or services pertaining thereto.
Further, applicant argues that "air control" as used in
the evidence submitted by the Examining Attorney refers to
devices which control the volumetric flow of air, not
systems which collect dust.
With respect to the disclaimer of AIR CONTROL SCIENCE
in its companion application, applicant states that it
agreed to the disclaimer simply to gain allowance of the
application, and that the disclaimer should not be
considered an admission of descriptiveness.
A mark is considered to be merely descriptive of goods
or services, within the meaning of Section 2(e)(1) of the
Trademark Act, if it forthwith conveys an immediate idea of
the ingredients, qualities, characteristics or features
thereof or if it directly conveys information regarding the
nature, function, purpose or use of the goods or services.
See In re Abcor Development Corp., 616 F.2d 525, 200 USPQ
215, 217-18 (CCPA 1978). Moreover, in order to be
descriptive, the mark must immediately convey information as
to the ingredients, qualities or characteristics of the
goods or services with a "degree of particularity." Plus
Products v. Medical Modalities Associates, Inc., 211 USPQ
1199, 1204-05 (TTAB 19811); Holiday Inns, Inc. v. Monolith
Enterprises, 212 USPQ 949,952 (TTAB 1981); In re TMD Corp.
of the Americas, 200 USPQ 57, 59 (TTAB 1978); and In re Diet
Tabs, Inc., 231 USPQ 587, 588 (TTAB 1986).
Ser No. 74/590,808
5
Applying these principles to the evidence of record,
and notwithstanding the disclaimer of AIR CONTROL SCIENCE in
applicant's companion application, we conclude that AIR
CONTROL SCIENCE has not been shown to be merely descriptive
of applicant's services. We are not persuaded by the
patents and Nexis evidence that the relevant purchasers of
applicant's services perceive "air control" to mean the
control or collection of dust. In the Nexis excerpts and
one of the patents, "air control" appears to refer to
devices which control the volumetric flow of air, and not
systems which control or collect dust. In the remaining
Nexis excerpt, "air control" refers to the use of air
conditoning to eliminate dust mites and mold. Moreover, the
word "science" is a very broad term which does not convey an
immediate idea of the features or characteristics of
applicant's services. In short, AIR CONTROL SCIENCE is an
ambiguous term, and a modicum of thought is necessary in
order to determine therefrom that applicant's services
involve dust collection systems. In reaching this
conclusion, we note that there is no evidence in this record
that AIR CONTROL SCIENCE is used in a descriptive manner by
the trade or the press in connection with dust collection
systems.
Decision: The refusal to register is reversed.
Ser No. 74/590,808
6
R. L. Simms
E. W. Hanak
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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