MPHASE Tech-nologies, Inc.

Trademark Trial and Appeal Board

Sep 12, 2001

No. 75510925 (T.T.A.B. Sep. 12, 2001)

9/12/01 Paper No. 14

GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re MPHASE Technologies, Inc.
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Serial No. 75/510,925
_______

Janik Marcovici of Perman & Green, LLP for MPHASE Technologies,
Inc.

Mark Sparacino, Trademark Examining Attorney, Law Office 103
(Dan Vavonese, Acting Managing Attorney).
_______

Before Cissel, Hohein and Drost, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

MPHASE Technologies, Inc. has filed an application to
register the term "INTELLIGENT NETWORK INTERFACE" for
"electronic components; namely audio and video transmitters and
receivers, electronic circuit boards and microwave circuit
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/510,925
2
boards, all used in communication systems that provide digital
subscriber lines."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 "INTELLIGENT NETWORK INTERFACE" is merely descriptive of
them.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested. We affirm the refusal to
register.
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, 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

1 Ser. No. 75/510,925, filed on June 30, 1998, which is based on an
allegation of a bona fide intention to use such term in commerce. The
Ser. No. 75/510,925
3
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).
Applicant, in its response to the initial Office
Action, has conceded that "transmitters, receivers, electronic
and microwave components and systems for use in communications
systems in providing digital subscriber lines have some
processing capability, wherein an electronic signal having an
initial form is processed into another form" and that such goods
"do indeed interface with ... communications systems." However,
relying upon various dictionary definitions,2 applicant argues

words "NETWORK INTERFACE" are disclaimed.

2 Although, in response to the initial Office Action, applicant made of
record definitions of "transmitter" and "receiver" from The
Illustrated Dictionary of Electronics (7th ed. 1997), it did not
submit definitions from such dictionary of "intelligence" and "network
interface unit" until it filed its appeal brief. While submission of
the latter is untimely under Trademark Rule 2.142(d), we nevertheless
have considered such evidence inasmuch as it is settled that the Board
Ser. No. 75/510,925
4
that "[t]he phrase INTELLIGENT NETWORK INTERFACE is not
synonymous with" its goods "nor does it stand for the function
or effect of processing signals with transmitters, receivers,
and microwave boards in communication systems for providing
digital subscriber lines." Specifically, applicant notes that:
The Illustrated Dictionary of Electronics,
7th Ed., 679 (1997), ... defines
"transmitters" [in the singular] as
equipment for producing and sending signals
or data. Also, a "receiver" is defined as a
device or system operated at the destination
end of a communications link[; it accepts a
signal and processes or converts it for
local use]. Id. at 575-76 .... By
comparison, "intelligence" is defined as
meaningful data that modulates a carrier
[(e.g., the voice or music in a frequency-
modulated (FM) radio signal, or the image in
a television signal)], Id. at 365 ..., and
"network interface unit", is defined as a
device provided to each subscriber that
connects telephones, television sets, and
personal computers to an electrical or
fiberoptic cable, Id. at 465 .... In the
context of communication systems for
providing digital subscriber lines, the word
INTELLIGENT does not stand for the
processing performed by transmitters,
receivers, electronic boards and microwave
boards used for providing digital subscriber
lines even if the transmitters and receivers
use microprocessors to perform the function.

In addition, applicant points out that "the phrase
INTELLIGENT NETWORK INTERFACE is not defined in the dictionary"

may properly take judicially notice of dictionary definitions. See,
e.g., Hancock v. American Steel & Wire Co. of New Jersey, 203 F.2d
737, 97 USPQ 330, 332 (CCPA 1953) and University of Notre Dame du Lac
v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594, 596 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser. No. 75/510,925
5
and asserts that "a person reading the phrase ... [would not]
think of it as being transmitters, receivers, electronic boards
and microwave boards used for providing digital subscriber
lines." As to the "NEXIS" evidence (discussed hereinafter) on
which the Examining Attorney relies, applicant contends that
such "shows that the phrase may indeed mean several different
things including television set top boxes which provide an
interface/connection point between TV and cable." Applicant, in
light thereof, asserts that:
Although ... the fact that a term or phrase
is not found in the dictionary is not
controlling on the question of
registrability when the phrase has a well
understood and recognized meaning, in this
case, [as shown by the "NEXIS" evidence,]
the phrase INTELLIGENT NETWORK INTERFACE
does not have a well understood and
recognized meaning. Accordingly, the lack
of a dictionary definition is further
indication that the phrase INTELLIGENT
NETWORK INTERFACE is at most suggestive of
transmitters, receivers, electronic boards
and microwave boards used for providing
digital subscriber lines, but not [merely]
descriptive of these goods.

The Examining Attorney, on the other hand, maintains
that, based upon applicant's broad identification of its goods,
the goods "may all contain microprocessors" and, as such, "the
goods have processing capability and[,] therefore, ... are
intelligent. Inasmuch as applicant's "intelligent" goods are

Ser. No. 75/510,925
6
for use in a network interface as part of providing digital
subscriber lines, the Examining Attorney concludes that the term
"INTELLIGENT NETWORK INTERFACE merely describes the purpose or
use of the goods." Of record in support of the refusal to
register is a definition from The Computer Glossary (8th ed.
1998) at 207, which lists "intelligence" as meaning
"[p]rocessing capability. Every computer is intelligent!"3 In
addition, The American Heritage Dictionary of the English
Language (3rd ed. 1992) defines "intelligent" in relevant part
as "5. Computer Science. Having certain data storage and
processing capabilities: an intelligent terminal; intelligent
peripherals." The same dictionary, in pertinent part, sets
forth "network" as 4. a. A group or system of electronic
components and connecting circuitry designed to function in a
specific manner. b. Computer Science. A system of computers
interconnected by telephone wires or other means in order to
share information" and lists "interface" as "3. Computer
Science. The point of interaction or communication between a

3 Such dictionary also lists such terms as: "intelligent controller,"
which is defined as "[a] peripheral control unit that uses a built-in
microprocessor for controlling its operation"; "intelligent hub,"
which is set forth as "[a] central connecting device in a network that
performs a variety of processing functions such as network management,
bridging, routing and switching"; "intelligent modem," which is stated
to mean "[a] modem that responds to commands and can accept new
instructions during online transmission"; and "intelligent terminal,"
which is defined as "[a] terminal with built-in processing capability,
but no local disk or tape storage. It may use a general-purpose CPU
Ser. No. 75/510,925
7
computer and any other entity, such as a printer or human
operator."
Contending, furthermore, that "the phrase 'intelligent
network interface' is commonly used in the industry," the
Examining Attorney also notes in support of his position that
the record contains numerous excerpts, of which the following
are representative, showing use of the phrase "INTELLIGENT
NETWORK INTERFACE" which were retrieved from a search of such
phrase in the "NEXIS" database (emphasis added):
"The Teleperm XP control system
includes modular controllers and intelligent
network interfaces. It offers functions for
data acquisition and signal conditioning
...." -- Modern Power System, January 31,
2000;

"With the intelligent network
interface, subscribers can use an Internet
browser to change the parameters of their
[wireless] service." -- Telephony, April 26,
1999;

"[ARM] entered into a strategic
alliance with networking giant 3Com Corp.
... that will see the ARM9 32-bit RISC
processor core providing the smarts in a
future range of intelligent network
interface cards from 3Com.
....
Under terms of the alliance, 3Com has
designed a network controller known as the
3XP around the ARM9 core, and will use it to
power a forthcoming range of intelligent
network interface cards (NICs) due to be
announced in the first half of this year." -

or may have specialized circuitry as part of a distributed
intelligence system."
Ser. No. 75/510,925
8
- Electronic Engineering Times, March 1,
1999;

"Fast IP allows intelligent network-
interface cards to handle some switching and
routing decisions at the desktop level ...."
-- Internet World, February 3, 1997;

"Company officials say they are
concentrating on developing an intelligent
network interface that would be attached to
a set-top box, enabling it to interact with
any kind of video transmission system ...."
-- Telephony, June 10, 1996;

"This intelligent device emulates the
venerable Ethernet cable. You still have
the intelligent network interface cards in
your workstation, sending the Ethernet
packets as if you were still on that single
cable." -- HP Professional, May 1993;

"AT&T's Advanced Intelligent Network
interfaces could serve as gateways either to
standalone devices such as voice mail or to
databases that will assemble and/or
manipulate information." -- Business
Communications Review, May 1991 (article
headlined in part: "Local competition - let
the games begin! Local telephone
service");

"With the new intelligent network
interface, DEC service developers will be
able to more easily connect to intelligent
networks ...." -- PC Week, March 15, 1988;

"TelLAN runs on existing telephone wire
without affecting voice traffic, the company
said. Intelligent network interface units
link devices to the net." -- Network World,
March 23, 1987; and

"Ungermann-Bass, Inc. has announced the
Net/One Personal Connection, an intelligent
network interface unit (NIU) which is
compatible with Xerox Corp.'s Ethernet local
Ser. No. 75/510,925
9
area network and IBM's Systems Network
Architecture (SNA)." -- Computerworld,
October 10, 1983.

Because the term "INTELLIGENT NETWORK INTERFACE" describes any
network interface which is intelligent, that is, has processing
capability, the Examining Attorney insists that a function or
use of applicant's electronic components, which are used in
communication systems that provide digital subscriber lines, is
merely described by such term and that the refusal to register
is therefore proper.
In the present case, we concur with the Examining
Attorney that, when used on or in connection with applicant's
"electronic components; namely audio and video transmitters and
receivers, electronic circuit boards and microwave circuit
boards, all used in communication systems that provide digital
subscriber lines," the term "INTELLIGENT NETWORK INTERFACE"
immediately describes, without conjecture or speculation, a
significant purpose or use of such goods, namely, that they
collectively function to provide an intelligent network
interface in digital subscriber line communications systems.
Contrary to applicant's principal contention, as reiterated in
its reply brief, that such term "does not have a readily
understood meaning either in popular or technical usage
context," the "NEXIS" excerpts plainly demonstrate, and the
dictionary definitions confirm that the term "INTELLIGENT
Ser. No. 75/510,925
10
NETWORK INTERFACE" is used to designate any network interface,
including those utilized in communications systems, which is
intelligent in the sense that it has processing capability.
Applicant, as noted previously, has admitted that its
goods "have some processing capability, wherein an electronic
signal having an initial form is processed into another form,"
and that such goods "do indeed interface with ... communications
systems." Clearly, to the engineers, network designers and
managers of digital subscriber line communications systems who
would constitute the primary customers for applicant's goods,
there is nothing in the term "INTELLIGENT NETWORK INTERFACE"
which, in the context of applicant's audio and video
transmitters and receivers, electronic circuit boards and
microwave circuit boards for use in communication systems that
provide digital subscriber lines, would be ambiguous,
incongruous or susceptible to any other plausible meaning.
Accordingly, because such term conveys forthwith a significant
purpose or use of applicant's electronic components, it is
merely descriptive thereof within the meaning of the statute.
See, e.g., In re Analog Devices Inc., 6 USPQ2d 1808 (TTAB 1988),
aff'd in op. not for pub., 871 F.2d 1097, 10 USPQ2d 1879 (Fed.
Cir. 1989) [term "ANALOG DEVICES" held merely descriptive of,
and in fact found to be a generic name for a category of,
various electronic data communications components, including
Ser. No. 75/510,925
11
"computer interface products, namely, realtime interfaces and
data exchangers, serial transmittal card/modules, serial
receiver card/modules and serial multiplier card/modules"].
Decision: The refusal under Section 2(e)(1) is
affirmed.