Liebel-Flarsheim Co.

Trademark Trial and Appeal Board

Jul 15, 1999

No. 75094968 (T.T.A.B. Jul. 15, 1999)

Paper No. 15
GDH/gdh
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 15, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Liebel-Flarsheim Company
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Serial No. 75/094,968
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Donald F. Frei of Wood, Herron & Evans, P.L.L. for Liebel-
Flarsheim Company.
William D. Jackson, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
_______
Before Hohein, Walters and Chapman, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Liebel-Flarsheim Company has filed an application to
register the term "POWER CATH" for "power injectors for injecting
contrast media into the body of a human or animal to facilitate
imaging body organs and systems by radiography, ultrasound,
magnetic resonance, computed tomography, and the like; medical
tubing for administration and draining of fluids; containers,
namely, syringes; medical apparatus, namely, contrast media power
injection operator consoles, console and injector power head
mounts, and accessories, namely, extension and interconnect
Ser. No. 75/094,968
2
cables, remote switches, ECG interfaces and pre-amplifiers;
syringe pressure jackets and heaters, and bottle holders; all for
use in connection with such contrast media power injectors".1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis
that, when used in connection with applicant's goods, the term
"POWER CATH" is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not held.2 We affirm the refusal to register.
Applicant, referring to the promotional material it
made of record which "describes its two currently marketed
contrast delivery systems," explains in its initial brief that:
[A] powered contrast media delivery or
injection system includes a syringe which
contains the contrast media to be injected
into the body, a power head into which the
syringe is loaded which contains a motor-
operated drive ram which advances a plunger
located in the syringe in a very controlled
manner to cause the contrast media in the
syringe to be injected into the body of the
patient or the like at a programmed rate.
The ram advance in the power head is
controlled by a microprocessor-based console
into which a variety of different types of
information can be entered to define the
programmed injection protocol which will be
used.
Applicant stresses, however, that nowhere in its promotional
literature "is there any reference to a 'powered catheter,'" nor
is such term or the term "POWER CATH" used in the diagnostic

1 Ser. No. 75/094,968, filed on April 26, 1996, which alleges a bona
fide intention to use such term in commerce.
2 Although an oral hearing was requested by applicant and scheduled by
the Board, applicant subsequently submitted a withdrawal thereof.
Ser. No. 75/094,968
3
medical imaging field, by competitors or medical personnel, in
connection with either powered contrast media injectors or their
accessories, including catheters. Instead, applicant insists,
"there are available to those in the field to which Applicant’s
goods relate other and better terms to describe the goods in
question," such as "’power injectors,’ ’angiographic injectors,’
and ’CT injectors.’"
In particular, applicant asserts in its initial brief
that:
There is no such device as a "powered
catheter" in the media injection field.
There is a power head into which a syringe is
loaded, which contains a motor-operated drive
ram which advances a plunger in the syringe
to cause contrast media in the syringe to be
injected into the body via a tube and a
catheter inserted into the body of a patient.
However, the foregoing is not a "powered
catheter" ....
Applicant, in consequence thereof, argues in its reply brief
that, in relation to its goods:
The catheter is not powered, the tube is not
powered; the only element which is powered is
the drive ram in Applicant’s "power head,"
which acts on the syringe plunger to force
liquid contrast media out of the syringe.
Applicant submits that, figuratively
speaking, Applicant’s POWER CATH mark, at
most, suggests, that its injector would
function as a "powered catheter," were such a
device to exist. In reality, as noted
previously, there has never been a catheter
which has been powered.
A catheter is simply a hollow needle
inserted into the body, through which liquid
... can flow from a source of liquid ...
remote from the body. The liquid ... source
in the diagnostic imaging field is the
syringe containing the liquid contrast media
which is inserted into the "power head" and
acted upon by the electrically powered drive
Ser. No. 75/094,968
4
ram which, as noted previously, forces liquid
out of the syringe into a tube which liquid,
in turn, passes through the hollow needle
(catheter) into the body of the patient
undergoing a diagnostic imaging procedure.
Applicant thus concludes that because the term "POWER
CATH" "cannot be found to describe a characteristic, feature or
function of a nonexistent product," applicant maintains that it
can only, "at best, suggest that its ’power injectors’ function
as a ’power catheter’ would function, were such a product to
exist" (underlining in original).
The Examining Attorney, on the other hand, contends
that notwithstanding the fact that applicant, after the refusal
to register was made final, deleted the word "catheters" from the
items listed in the identification of its goods, the term "POWER
CATH" is still unregistrable in that it is merely descriptive of
applicant’s power injectors for injecting contrast media.
Specifically, the Examining Attorney insists that even though
applicant is no longer seeking registration for the term "POWER
CATH" which includes "catheters" as such, "a catheter is still
part of a contrast delivery system, as fluids injected into the
patient by the [power injector of the] system must pass through a
catheter to reach the patient."
In view thereof, and relying upon the Random House
Dictionary of the English Language (2d ed. 1993), which defines
"power" as an adjective meaning "operated or driven by a motor or
electricity" and "power-assisted," and both the Acronyms,
Initialisms & Abbreviations Dictionary (18th ed. 1994), which
lists "CATH" as signifying "Catheter [Medicine]," and the
Ser. No. 75/094,968
5
Dictionary of Medical Acronyms & Abbreviations (2d ed. 1993),
which likewise sets forth the term "Cath" as meaning in relevant
part "catheter," the Examining Attorney maintains in his brief
that (footnote omitted):
[I]t is important to look at the description
of the applicant’s goods provided by the
applicant in its brief. According to the
brief, a media contrast delivery system
consists of "a power head into which a
syringe is loaded, which contains a motor-
operated drive ram which advances a plunger
in the syringe to cause contrast media in the
syringe to be injected into the body via a
tube and a catheter inserted into the body of
a patient." Applicant’s brief, p.5 (emphasis
added). A characteristic and feature of the
applicant’s contrast delivery system is it
employs a motor-operated drive ram. A second
characteristic and feature of the applicant’s
contrast delivery system is that it employs a
catheter. The motor-operated drive ram in
the power head forces the injection media
through the catheter. The terms "POWER" and
"CATH" both describe a feature of the
applicant’s goods, and both are descriptive
when applied to the applicant’s goods.
Furthermore, the combination of the two
descriptive terms does not result in a term
so incongruous or unusual as to possess no
definitive meaning or significance other than
that of an identifying mark for the goods.
When the term "POWER CATH" is used in
connection with the applicant’s contrast
delivery system it has a descriptive
significance. The combination of the terms
"POWER" and "CATH" merely describes a motor-
driven delivery system for use with a
catheter. ....
It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning of
Section 2(e)(1) of the Trademark Act, if it immediately describes
an ingredient, quality, characteristic or feature thereof or if
it directly conveys information regarding the nature, function,
Ser. No. 75/094,968
6
purpose or use of the goods or services. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). It is not necessary that a term describe all of the
properties or functions of the goods or services in order for it
to be considered to be merely descriptive thereof; rather, it is
sufficient if the term describes a significant attribute or idea
about them. Moreover, 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. See In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). Consequently, "[w]hether consumers could guess what
the product [or service] is from consideration of the mark alone
is not the test." In re American Greetings Corp., 226 USPQ 365,
366 (TTAB 1985).
In the present case, it is our view that, when applied
to applicant’s "power injectors for injecting contrast media into
the body of an animal or human to facilitate imaging," the term
"POWER CATH" immediately describes, without conjecture or
speculation, a significant purpose, function or use of such
goods, namely, that they act to power a catheter and thus, in
effect, constitute power catheter injectors. The definitions
from acronym dictionaries, in particular, show that "CATH" is a
commonly recognized term for catheter. Thus, to the radiologists
and other medical personnel who would be the principal users
Ser. No. 75/094,968
7
and/or purchasers of applicant’s contrast media power injectors,
there is nothing in the combination of the terms "POWER" and
"CATH" into the term "POWER CATH" which is ambiguous, incongruous
or perhaps susceptible to another plausible meaning. See, e.g.,
Remington Products Inc. v. North American Philips Corp., 892 F.2d
1576, 13 USPQ2d 1444, 1448 (Fed. Cir. 1990) ["TRAVEL CARE" held
merely descriptive of travel irons and other personal care
products since a person "seeing ’travel care’ in connection with
products is going to treat ’travel care’ adjectivally and assume
it refers to products" which "a traveler takes along to care for
something"].
Moreover, the fact that neither applicant’s product
literature nor any of its competitors utilize the terminology
"power cath" or "power catheter" in reference to power injectors
for injecting contrast media into the body to facilitate the
imaging thereof does not mean that the term "POWER CATH" is at
best suggestive rather than merely descriptive of such goods. As
the Examining Attorney has also correctly observed, the fact that
applicant intends to be the first and only user of such term in
connection with its products does not justify registration when,
as the dictionary excerpts make clear, the term "POWER CATH"
merely describes goods which, when used with catheters, function
as power catheter injectors for injecting contrast media. See,
e.g., In re International Game Technology Inc., 1 USPQ2d 1587,
1589 (TTAB 1986); In re National Shooting Sports Foundation,
Inc., 219 USPQ 1018, 1020 (TTAB 1983); and In re Pharmaceutical
Innovations, Inc., 217 USPQ 365, 367 (TTAB 1983).
Ser. No. 75/094,968
8
Accordingly, because the term "POWER CATH" conveys
forthwith a significant purpose, function or use of applicant’s
"power injectors for injecting contrast media into the body of a
human or animal to facilitate imaging body organs and systems,"
it is merely descriptive of such goods within the meaning of the
statute.
Decision: The refusal under Section 2(e)(1) is
affirmed.
G. D. Hohein
C. E. Walters
B. A. Chapman
Administrative Trademark Judges,
Trademark Trial and Appeal Board