Open Access Technology International, Inc.

Trademark Trial and Appeal Board

Aug 16, 2013

No. 85480384 (T.T.A.B. Aug. 16, 2013)

Mailed: August 16, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Open Access Technology International, Inc.
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Serial No. 85480384
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Richard A. Arrett of Vidas, Arrett & Steinkraus PA for Open
Access Technology International, Inc.

Jordan A. Baker, Trademark Examining Attorney, Law Office
102 (Mitchell Front, Managing Attorney).
_______

Before Bucher, Kuhlke, and Wellington,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Open Access Technology International, Inc. filed, on
November 23, 2011, an intent-to-use application to register
the mark WEBTRADERMOBILE (in standard characters) for
“Computer application software for mobile phones, handheld
computers, and touchscreen devices, namely, software for
all energy trading, risk management, regulatory compliance,
logistics, scheduling, accounting, settling all
transactions and trades to address all aspects of
enterprise business activities” in International Class 9.
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 85480384
2
The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1), on the ground that applicant’s mark is merely
descriptive of the identified goods.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
A term is deemed to be merely descriptive of goods
within the meaning of Section 2(e)(1), if it forthwith
conveys an immediate idea of a quality, characteristic,
feature, function, purpose or use of the goods. In re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828
(TTAB 2007); and In re Abcor Development, 588 F.2d 811, 200
USPQ 215, 217-18 (CCPA 1978). A term need not immediately
convey an idea of each and every specific feature of the
applicant’s goods in order to be considered merely
descriptive; rather, it is sufficient that the term
describes one significant attribute, function or property
of the goods. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973).
Whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods for which
registration is sought, the context in which it is being
used on or in connection with the goods, and the possible
significance that the term would have to the average
Serial No. 85480384
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purchaser of the goods because of the manner of its use.
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
It is settled that “[t]he question is not whether someone
presented with only the mark could guess what the goods or
services are. Rather, the question is whether someone who
knows what the goods or services are will understand the
mark to convey information about them.” In re Tower Tech
Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002).
The record demonstrates that the composite terms of
applicant’s mark, i.e., web, trader, and mobile, are each
merely descriptive of the identified goods. As illustrated
below, each term describes a prominent feature, purpose or
application of applicant’s software “for mobile phones” for
“all engery trading” over the web.
The term “Web” is a common abbreviation for the World
Wide Web, a “system of interlinked hypertext documents
accessed via the internet.”1 This term describes a key
feature of the software, namely, that it is web-based
because it operates on or interacts with the internet.
As to the term “trader,” it is defined as “one that
trades.”2 Viewing this term in the context of the

1 Wikipedia (www.wikipedia.com), printouts attached to Office
action dated January 3, 2012.
2 Taken from the website The American Heritage Dictionary of the
English Language (www.amdictionary.com), based on the American
Serial No. 85480384
4
identified goods, namely, "software for all energy
trading...,” it will immediately be understood by
prospective consumers as describing the software’s ability
to perform or assist the user in trading, e.g., allow the
user to conduct energy trading transactions. As further
evidence of the descriptiveness of this term, the examining
attorney submitted seventeen third-party registrations for
marks containing the term TRADER, and a disclaimer thereof,
for software used in connection with financial trading.3
Finally, as to the term “mobile,” it is defined in the
context of “digital technology” as “of or relating to
wireless communication devices, such as cell phones”4 and
applicant’s software is described as being for “mobile”
phones. In addition, the examining attorney submitted
seventeen third-party registrations for marks containing
the term MOBILE, with said term disclaimed, for software
thus indicating it to be merely descriptive of the
identified goods.
When combined to form the proposed mark, each term
retains its descriptive significance. A consumer

Heritage Dictionary of the English Language (2012). A printout
was submitted with the August 1, 2012 Office action.
3 Copies of the registrations were attached to Office actions
dated January 3, 2012 and August 1, 2012.
4 Taken from the website The American Heritage Dictionary of the
English Language (www.amdictionary.com), based on the American
Serial No. 85480384
5
encountering the mark in connection with software such as
applicant’s will have no trouble understanding the goods as
being for mobile devices, interacting with the Web (or
internet) and performing or assisting the user to make
financial trades in the energy field. The combination of
these descriptive terms, with or without a space, does not
result in a non-descriptive mark or otherwise create any
new meaning or unique commercial impression created by such
combination. See In re Petroglyph Games, Inc., 91 USPQ2d
1332 (TTAB 2009) (BATTLECAM merely descriptive for computer
game software); In re Carlson, 91 USPQ2d 1198 (TTAB 2009)
(URBANHOUZING merely descriptive of real estate brokerage,
real estate consultation, and real estate listing
services).
In its brief, applicant’s main, if not only, argument
is that the examining attorney’s evidence “actually
supports registrability in this case” and points to a few
of the third-party registrations submitted by the examining
attorney wherein the term TRADER or MOBILE was disclaimed.5
Brief, pp. 2-3. However, a cursory review the registered
marks referenced by applicant reveals that they contain

Heritage Dictionary of the English Language (2012). A printout
was submitted with the August 1, 2012 Office action.
5 Applicant was specifically referencing the registered marks CSI
MOBILE, MAGIC TRADER, GRAVITY MOBILE, FOX TRADER, STERLING TRADER
and ONE-STEP TRADER.
Serial No. 85480384
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additional terms that were presumably not determined to be
descriptive and thus the marks, in their entirety, were not
held to be merely descriptive. In any event, the Board is
not bound by prior decisions of examining attorneys. See In
re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566
(Fed. Cir. 2001); In re Davey Products Pty Ltd., 92 USPQ2d
1198 (TTAB 2009).
In sum, applicant’s proposed mark WEBTRADERMOBILE is
merely descriptive of the identified goods.
Decision: The refusal to register is affirmed.