PSI Systems, Inc.

Trademark Trial and Appeal Board

Aug 21, 2007

No. 78648563 (T.T.A.B. Aug. 21, 2007)

Mailed: August 21, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re PSI Systems, Inc.
________

Serial No. 78648563
_______

James W. Geriak of Orrick, Herrington & Sutcliffe LLP for
PSI Systems, Inc.

Jennifer H. Dixon, Trademark Examining Attorney, Law Office
110 (Chris A. F. Pedersen, Managing Attorney).
_______

Before Bucher, Zervas and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

PSI Systems, Inc. has applied to register the mark
iPOSTAGE, in standard character form, on the Principal
Register for the following goods and services, as amended:
“Computer software, namely software for
generating and printing information on documents,
labels, postage and other products, using digital
technology” in International Class 9;

“Conversion and transfer of data from one medium
to another, namely conversion and transfer of
digital data to tangible media” in International
Class 40; and

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 78648563
2
“Computer services, namely, providing temporary
use of non-downloadable computer software for
users to convert and transfer data from one
medium to another, namely, convert and transfer
digital data to tangible media” in International
Class 42.1

The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act on the ground
that applicant’s mark is merely descriptive of a feature or
quality of applicant’s goods and services. When the
refusal was made final, applicant appealed. Applicant and
the examining attorney filed briefs on the issue under
appeal.
Evidentiary Matters
Before turning to the substantive ground for refusal,
we note that applicant has submitted several exhibits with
its brief. These exhibits consist of printouts of various
“I” formative third party registrations from the United
States Patent and Trademark Office’s Trademark Electronic
Search System (TESS). We agree with the examining attorney
that these exhibits are untimely, and they have not been
considered. See Trademark Rule 2.142(d) (the record in the
application should be complete prior to the filing of an
appeal). We note, however, that had we considered these

1 Application Serial No. 78648563 was filed June 10, 2005 based
upon applicant’s assertion of its bona fide intent to use the
mark in commerce in connection with the goods and services.

Ser No. 78648563
3
exhibits in our determination of the issue on appeal, the
result would be the same.
Refusal to Register Under Section 2(e)(1)
It is well settled that a term is considered to be
merely descriptive of goods and/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 and/or services. See Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052. See also In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
It is not necessary that a term describe all of the
properties or functions of the goods and/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 feature about them. Moreover,
whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods and/or services
for which registration is sought. See In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). Thus, "[w]hether consumers
could guess what the product is from consideration of the
mark alone is not the test." See In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985).
Ser No. 78648563
4
With her Office actions, the examining attorney
submitted dictionary definitions of “i” and “postage.”
Based upon these definitions, “i” may be defined, inter
alia, as a shorthand for “Internet.” “Postage” may be
defined as “price for mail delivery: the amount of money
paid for the delivery of a piece of mail” or “marks showing
payment: the stamps, labels, or other marks on an item of
mail showing that the charge has been paid.”2 The examining
attorney further made of record articles retrieved from the
Nexis database and Internet web pages. Certain excerpts
from the referenced articles and web pages are reproduced
below (emphasis added):
With Internet postage, customers can print U.S.
Postal Service-approved stamps with an inkjet or
laser printer.
Besides growth potential, Internet postage boasts
a quality many mature industries can only dream
of: pricing power. (Investor’s Business Daily,
December 12, 2005);

Fifth, any such Internet postage system would
never stay cheap. Feature creep and accounting
justifications would drive the price from $0.01
to $0.10 to $1 as inevitably as death and taxes.
I could go on with detailed objections but, when
it comes down to it, there is simply no way to
implement Internet postage that would be
practical. (Network World, February 9, 2004);

2 The examining attorney cites to Acronym Finder
(www.acronymfinder.com) and Encarta (www.encarta.msn.com)
respectively, for these definitions.
Ser No. 78648563
5
Pitney Bowes Inc., the world’s largest maker of
postal meters and mailing equipment, and Internet
competitor Stamps.com Inc. said they have
resolved patent litigation that dates to 1999.
The companies have been fighting in the courts
since Stamps.com was a 3-year-old upstart and
analysts predicted that Internet postage would
become a real challenge to the U.S. Postal
Service. Instead, it’s a niche market, with less
than 1 percent of the $21 billion postage meter
market. (The Atlanta-Constitution, December 25,
2003);

Internet Postage Providers Add ‘Stealth’ Feature
for Online Sellers
Many eBay buyers object to sellers adding
handling charges for their purchases. Sellers
who use Internet postage services can hide their
actual USPS shipping costs, minimizing potential
complaints from buyers.

Stamps.com and Endicia.com both offer online
sellers the ability to hide USPS postage costs on
packages.

Endicia.com has offered its Stealth Postage
feature since last summer, and is available to
users of its Premium service, with fees of
$15.99/month or $174.05 for the year.
(www.auctionbytes.com).

The examining attorney also submitted the following article
and Internet story concerning applicant’s d/b/a, Endicia:
Internet postage debuted in the United States in
August 1999. When the idea was first announced,
many wondered if it might not be one of the next
big things.
But the idea was slow to get off the ground. In
the interim, companies selling, or trying to
sell, Internet postage, lost money and moved on
Ser No. 78648563
6
to other ventures, such as shipping services, to
make up for lost revenue….
But Internet postage is back for three companies
offering it in the United States: Neopost, the
Hayward, Calif. subsidiary of Paris-based Neopost
Group; Stamps.com; and Endicia, the Internet
postage tradename of Envelope Manager Software.
All have returned to focusing on Internet postage
rather than other ventures….
Endicia is the trade name for PSI Systems’
Internet postage product, doing business as
Envelope Manager Software. PSI Systems, a
consulting company, has been in business since
1976. Endicia started offering Internet postage
in October 2000, said Harry Whitehouse, CEO of
the company. Whitehouse is hoping Endicia’s
products will help the U.S. Postal Service get
back in the package trade it lost to United
Parcel Service and FedEx….
Endicia allows customer to print labels similar
in style and substance to those of UPS and FedEx.
With similar labels, customers can compare USPS
with FedEx and UPS based on service and cost, he
said….
The company also now is offering an express mail
form over the Internet, replacing USPS’s
multipart carbon form.
Whitehouse also is offering his Internet postage
as an alternative to mail manifesting. With
Endicia’s solution, users don’t need to go to the
post office to drop off mail, nor do they need a
minimum amount of mail. They also don’t need
paperwork or a permit, he said. Some of
Endicia’s higher-volume customers have switched
from manifesting to Internet postage because it
is easier, he said. (Traffic World, August 5,
2002).

Internet Postage
More than five years after the USPS authorized
third-party Internet postage sales, Endicia
Ser No. 78648563
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offers Internet Postage, the first Mac service
that allows you to print postage for all your
mail. It was worth the wait.
Signing up for this service online takes only a
few minutes-plus a credit card or checking
account for buying postage at face value and
paying Endicia service fees. Once you receive
your account number, returning to Endicia’s Web
site is optional, as you can handle most of your
mailing activities via the SwordfishExpress 2.0
software you download from the Web site when you
set up your account.
To create a mailing, you enter the name and
address of the recipient, specify the class of
service you want…input the weight of your item,
and then indicate whether you desire insurance…or
delivery and signature confirmation.
Printable shipping labels cost between $0.05 and
$0.15 each; you can print them with or without
postage on a Dymo and Zebra Mac-compatible label
printer (also available from Endicia), or on any
laser or inkjet printer. A mail log tracks all
printed labels, allowing you to check delivery
status and seamlessly request refunds for
printing errors, although filing insurance claims
requires visiting the Endicia Web site.
(www.macaddict.com).

It is settled that excerpts from articles taken from the
Nexis database are competent evidence of how a mark may be
perceived. See In re Shiva Corp., 48 USPQ2d 1957 (TTAB
1998). It is further settled that material obtained from
the Internet is acceptable in ex parte proceedings as
evidence of potential public exposure to a term. See In re
Fitch IBCA, Inc., 64 USPQ2d 1058 (TTAB 2002).
Ser No. 78648563
8
Finally, applicant submitted pages from its Internet
website in response to the examining attorney’s requirement
for information regarding applicant’s goods and services.
Certain excerpts from the referenced web pages are
reproduced below (emphasis added):
Endicia Internet Postage, the first Internet
postage service to offer Electronic Delivery
Confirmation, was launched in 2000. This service
also became the first Internet postage service to
support International Mail in 2001.
Endicia Internet Postage lets you print postage
for all your mail. All you need is a PC, an
Internet connection, and a laser of inkjet
printer. (www.endicia.com).

The above dictionary definitions made of record by the
examining attorney and the excerpted material from
applicant’s own Internet website support a finding that
iPOSTAGE is an abbreviation for “Internet postage.” We are
not persuaded by applicant’s argument that because “I” and
“postage” have multiple meanings, the combination thereof
into iPOSTAGE is ambiguous and not merely descriptive. As
noted above, it is settled that descriptiveness must be
determined in relation to the goods and services for which
registration is sought. See In re Bright-Crest, Ltd.,
supra. The fact that a term may have different meanings in
other contexts is not controlling on the question of mere
descriptiveness. See In re Chopper Industries, 222 USPQ
Ser No. 78648563
9
258 (TTAB 1984); and In re Champion International Corp.,
183 USPQ 318 (TTAB 1974). Applicant’s own promotional
materials indicate that applicant’s goods and services are
directed toward Internet postage. Further, the above-
excerpted evidence of record establishes that Internet
postage is a recognized term applied to an alternative to
stamps or metered postage. As a result, the possibility
that iPOSTAGE may have other meanings in other contexts is
not controlling in our determination of likelihood of
confusion herein.
Turning to applicant’s goods and services, we must
determine whether iPOSTAGE or “Internet postage” merely
describes a function, feature or characteristic thereof.
In this case, the evidence made of record by the examining
attorney establishes that, as applied to applicant’s Class
9 goods, the term iPOSTAGE would immediately describe,
without conjecture or speculation, a significant
characteristic or feature of such goods, namely, that they
are used to generate and print U.S. Postal Service-approved
Internet postage as an alternative to using traditional
stamps and metering devices or obtaining postage at a U.S.
Post Office. The evidence of record further establishes
that iPOSTAGE merely describes a significant characteristic
or feature of applicant’s Class 40 services, namely, that
Ser No. 78648563
10
the services enable a user thereof to convert or transfer
Internet postage from digital data onto tangible media such
as shipping labels. Finally, the evidence of record
establishes that iPOSTAGE merely describes a significant
characteristic or feature of applicant’s Class 42 services,
namely that the services provide temporary use of non-
downloadable software to convert or transfer Internet
postage from digital data to shipping labels. In other
words, prospective purchasers, upon confronting the term
iPOSTAGE used in connection with applicant’s goods and
services, would immediately perceive that a significant
feature or characteristic of its goods and services is to
enable users thereof to convert and transfer digital data
into tangible media for the generation of Internet postage.
Thus, applicant’s mark iPOSTAGE merely describes goods and
services used to create Internet postage.
We are not persuaded by applicant’s speculation
regarding possible alternative meanings of iPOSTAGE, e.g.,
an Internet service that provides information for stamp
collectors or information regarding postage. Applicant has
provided no evidence that the consuming public would
perceive iPOSTAGE as having such meanings in order to
counter the examining attorney’s evidence that the mark
merely describes a significant feature or characteristic of
Ser No. 78648563
11
the recited goods and services. In the absence of any such
evidence, applicant’s arguments regarding other possible
meanings of its mark are mere conjecture, and as such are
unavailing.
Finally, applicant argues that the Office’s refusal to
register its iPOSTAGE mark, when the Office has previously
allowed registration of third party “I” formative marks,
violates applicant’s constitutional rights under the equal
protection component of the Due Process Clause of the Fifth
Amendment. The Federal Circuit, our primary reviewing
court, has specifically rejected this argument:

Boulevard also asserts that the PTO has
registered other sexually oriented marks and that
it accordingly violates Boulevard’s rights under
the equal protection component of the Due Process
Clause of the Fifth Amendment for the PTO to
refuse to register the marks at issue in this
case…In any event, the PTO must decide each
application on its own merits, and decisions
regarding other registrations do not bind either
the agency or this court. In re Nett Designs,
236 F.3d 1339, 1342, [57 USPQ2d 1564] (Fed. Cir.
2001). Even if the PTO had previously allowed a
mark similar to Boulevard's marks to be
registered, that would not give Boulevard an
equal protection right to have its mark
registered unless the agency acted pursuant to
some impermissible or arbitrary standard. See In
re Int'l Flavors & Fragrances, 183 F.3d 1361,
1368 [51 USPQ2d 1513] (Fed. Cir. 1999). The fact
that, whether because of administrative error or
otherwise, some marks have been registered even
though they may be in violation of the governing
statutory standard does not mean that the agency
must forgo applying that standard in all other
Ser No. 78648563
12
cases. The TTAB’s decision in this case
therefore does not violate the constitutional
principles that Boulevard invokes.

See In re Boulevard Entertainment Inc., 334 F.3d 1336, 67
USPQ2d 1475, 1480 (Fed. Cir. 2003). See also In re
Litehouse, Inc., 82 USPQ2d 1471, 1475 (TTAB 2007). Thus,
applicant’s constitutional argument in this case is
unavailing.
Accordingly, we find that applicant's mark is merely
descriptive as contemplated by Section 2(e)(1) of the Act.
Decision: The refusal to register is affirmed.