Lynk Systems, Inc.

Trademark Trial and Appeal Board

Oct 8, 2002

No. 75862400 (T.T.A.B. Oct. 8, 2002)

Mailed: 10/8/2002
Paper No. 16
ejs
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Lynk Systems, Inc.
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Serial No. 75/862,400
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Scott E. Taylor and Kathryn E. Swint of Arnall Golden &
Gregory, LLP for Lynk Systems, Inc.
Cimmerian Coleman, Trademark Examining Attorney, Law Office
102 (Thomas Shaw, Managing Attorney).
_______
Before Seeherman, Quinn and Drost, Administrative Trademark
Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Lynk Systems, Inc. has appealed from the final refusal
of the Trademark Examining Attorney to register LYNK as a
mark for “electronic funds transfer services.”1
Registration has been refused pursuant to Section 2(e)(1)
1 Application Serial No. 75/862,400, filed December 2, 1999,
asserting first use and first use in interstate commerce in 1991.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 75/862,400
2
of the Trademark Act, 15 U.S.C. 1052(e)(1), on the ground
that applicant’s mark is merely descriptive of its
services.
Before discussing the issue of whether applicant’s
mark is merely descriptive or inherently distinctive, we
address certain procedural points. In its appeal brief
applicant requested that, if the Board should affirm the
refusal of registration, it wished to pursue, in the
alternative, registration pursuant to the provisions of
Section 2(f) of the Act, and submitted a declaration of
five years continuous use in support of this position. The
Examining Attorney pointed out, in her brief, that such a
request was untimely. The Examining Attorney is correct.
Although an applicant may assert that its mark is
inherently distinctive and, in the alternative, that it has
acquired distinctiveness, it must do so during the
examination phrase. Thus, if applicant wanted to assert a
claim of acquired distinctiveness, it should have requested
remand of the application so that the Examining Attorney
could have considered the claim.
However, after the filing of applicant’s reply brief,
applicant submitted a request for remand so that its
alternative claim of registration pursuant to Section 2(f)
could be considered, and indicated that the Examining
Ser No. 75/862,400
3
Attorney had given her consent thereto. As a result, the
Board remanded the application to the Examining Attorney,
who accepted the amendment. Thus, the appeal before the
Board is solely on the issue of whether LYNK is inherently
distinctive or merely descriptive or the identified
services.
One additional procedural point must be noted. With
its reply brief applicant submitted copies of 48
registrations for “LINK” marks in support of its position
that LYNK is inherently distinctive. These registrations
are manifestly untimely. As the Examining Attorney had
previously pointed out in her brief, the record in the
application should be complete prior to the filing of the
appeal. See Trademark Rule 2.142(d). Applicant’s request
for remand, which occurred subsequent to the filing of the
reply brief, and the Board’s granting thereof, was
specifically for the purpose of considering applicant’s
claim of acquired distinctiveness, and did not serve to
make the third-party registrations of record.
This brings us to the substantive issue involved in
this appeal.
It is the Examining Attorney’s position that LYNK is
merely descriptive of electronic funds transfer services
because it would readily be perceived as “LINK,” its
Ser No. 75/862,400
4
phonetic equivalent, and that “link” describes a
characteristic of the services, in that it refers to a
computerized system that allows a user to link or connect
to a network. In support of her position, she has
submitted excerpts of articles taken from the NEXIS
database, including the following:
...banks have invested heavily in the
technology that has made ATMs almost
ubiquitous. That investment has been
not just in the purchase and
maintenance of the machines themselves,
but in sophisticated computer systems
and electronic funds transfer systems
that allow banks to electronically link
through regional, national and global
networks.
“Denver Rocky Mountain News,” March 19,
2000
PULSE is a shared electronic funds
transfer network that links cardholders
with ATMs and point-of-sale terminals.
“Texas Lawyer,” September 11, 2000
PULSE EFT Association, Houston, an
electronic funds transfer network that
links more than 2,000 financial
institutions and 20 million of their
customers with ATMs and PULSE Pay POS
installations....
“Computer Reseller News,” January 10,
2000
...the market for mobile machines is
quickly moving into nonremote, fixed
locations by using proprietary wireless
communications links designed for
electronic funds transfer systems
instead of voice communications.
“ATM & Debit News,” April 13, 2000
Ser No. 75/862,400
5
and a dictionary definition for “link”: “Computer Science.
An identifying term attached to an element in a system to
facilitate connection to other identified elements.”2 In
addition, the Examining Attorney has pointed to the
following language in applicant’s specimen brochure:
Lynk offers a variety of communication
connectivity supported by two different
networks, Sprint and TNS, offering full
redundancy at the merchant level. ...
The technology, connectivity and back
office support provide superior
processing—every transaction, every
day.
Applicant has explained that it offers a service to
merchants who wish to offer their customers the ability to
pay by credit cards and debit cards. By using electronic
funds transfer services such as applicant’s, merchants can
accept their customers’ credit and debit cards as a form of
payment for their goods and services. Applicant authorizes
and settles these transactions as between the merchants,
issuing banks, and the credit and debit networks. See
reply brief, p. 1.
A mark is merely descriptive, and therefore prohibited
from registration by Section 2(e)(1) of the Trademark Act,
2 The American Heritage Dictionary of the English Language, 3d
ed. © 1992.
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if it immediately conveys knowledge of the ingredients,
qualities or characteristics of the goods or services with
which it is used. See In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987).
We find that LYNK is merely descriptive of electronic
funds transfer services. Despite the slight misspelling,
consumers would immediately recognize LYNK to be the
equivalent of “link.” It is the phonetic equivalent of
this word, and because it differs from “link” only in the
second letter, a vowel, the words are very similar in
appearance. And the evidence of record demonstrates that
“link,” when used in connection with electronic funds
transfer services, describes a characteristic of such
services, namely, that they are linked to a network or
system.
Applicant argues that “it would be virtually
impossible for a consumer to determine the nature of
Applicant’s services from the term ‘lynk’ or ‘link’”,
brief, p. 2, and that “it would be virtually impossible for
someone to guess the nature of Applicant’s services form
the term LYNK”, brief p. 3. However, this argument ignores
the well-settled principle that the question of whether a
particular term is merely descriptive must be determined
not in the abstract, but in relation to the goods or
Ser No. 75/862,400
7
services for which registration is sought, the context in
which the mark is used, and the significance that the mark
is likely to have, because of the manner in which it is
used, to the average purchaser as he encounters goods or
services under the mark in the marketplace. In re
Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986).
Applicant attempts to distinguish the NEXIS excerpts
submitted by the Examining Attorney by stating that they
show only that the term “link” is used with electronic
funds transfer systems or networks, and that applicant is
attempting to register LYNK for electronic funds transfer
services. Applicant asserts that a customer would have to
first recognize that electronic funds transfer services are
carried out through a network that facilitates the
electronic transfer of funds, and only after that might a
consumer envision such a network as providing a series of
links. Applicant asserts that this process shows that LYNK
is suggestive, not merely descriptive.
The difficulty with this argument is that the
consumers for applicant’s services, as applicant
acknowledges, are merchants who accept credit and debit
cards, and would be knowledgeable about the manner in which
applicant’s services are rendered. In fact, applicant’s
brochures, which are directed to merchants, tout the
Ser No. 75/862,400
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connectivity and networks in terms of the superior
processing that applicant provides. Such consumers would
know that electronic funds transfer services are carried
out using a network, and would immediately understand that
LYNK, when used with such services, describes a
characteristic of the services.
As for the language in the specimen brochure,
applicant argues that the brochure’s focus is on the speed,
convenience and flexibility of applicant’s electronic funds
transfer services, that the references to connectivity are
within a discussion of a few technical aspects behind
applicant’s services, and that these “behind the scenes”
aspects of applicant’s support services are secondary to
its main function. We disagree. The fact that applicant
has noted these aspects of its services, and has, in fact,
featured the communication connectivity as the first
heading on the back page of its four-sided brochure (one
sheet, folded in half to form four pages), shows that the
link to networks is not an insignificant feature of the
services. Moreover, the NEXIS excerpts show that such
linkage is a major characteristic of electronic funds
transfer services in general.
We have also considered applicant’s evidence in
support of its position that its mark is inherently
Ser No. 75/862,400
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distinctive, namely, five third-party registrations for
marks which include the term LINK.3 However, only one of
these registrations, for “banking services, namely,
accessing of customer accounts by computer,” is even
remotely related to electronic funds transfer services, and
we cannot conclude that the Office has a policy of
recognizing LINK as a distinctive term based on this single
registration. See In re Nett Designs Inc., 236 F.3d 1339,
57 USPQ2d 1564 (Fed. Cir. 2001).
In conclusion, we find that LYNK is merely descriptive
of electronic funds transfer services, and is not entitled
to registration as an inherently distinctive mark, without
resort to Section 2(f).
Decision: The refusal of registration pursuant to
Section 2(e)(1) is affirmed. However, because the
Examining Attorney had previously accepted applicant’s
alternative basis for registration, namely, applicant’s
claim of registrability pursuant to Section 2(f) of the
Act, the application will go forward on that basis, and
will be published for opposition with the Section 2(f)
claim.
3 As noted previously, the third-party registrations which were
submitted with applicant’s reply brief are untimely and have not
been considered. Only five registrations were properly submitted
during the application’s examination stage.