@radical.media, Inc.

Trademark Trial and Appeal Board

Jul 13, 2005

No. 78217142 (T.T.A.B. Jul. 13, 2005)

Mailed:
July 13, 2005
Kuhlke

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re @radical.media, Inc.
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Serial No. 78217142
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Edward H. Rosenthal of Frankfurt Kurnit Klein & Selz, PC
for @radical.media, Inc.

Shaunia P. Wallace Carlyle, Trademark Examining Attorney,
Law Office 110 (Chris A. F. Pedersen, Managing Attorney).
_______

Before Bucher, Drost and Kuhlke, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

@radical.media, Inc. has filed an application to
register THE AD NETWORK (standard character form) on the
Principal Register for “cable and satellite television
broadcasting services” in International Class 38.1

1 Application Serial No. 78217142, filed February 26, 2003,
alleging a bona fide intent to use the mark in commerce. On
March 20, 2003 applicant filed a preliminary amendment which
appears to request a change in the applicant, i.e., from
@radical.media, Inc., a New York corporation, to The Ad Network
LLC, a Delaware corporation. The examining attorney did not take
any action with regard to this amendment and applicant continues
to refer to itself as @radical.media, Inc. See generally, TMEP
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 78217142
2
The 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 its services. In addition, the examining
attorney required applicant to indicate if the term “AD”
has any significance in the relevant trade or industry as
applied to the services. Applicant responded that the
proposed mark “does not immediately convey the nature of
Applicant’s services.” Further, applicant argued that
“[w]hile the term ‘ad’ is an abbreviation for the term
‘advertisement,’ it does not automatically follow that it
describes Applicant’s services.” Applicant then confirmed
that “[o]ther than the fact that ‘AD’ is an abbreviation of
the term ‘advertisement,’...the wording has no other
significance in the relevant trade or industry.”
When the refusal was made final, applicant appealed.
Briefs have been filed, but applicant did not request an
oral hearing. We affirm the refusal to register.
The examining attorney contends the applicant “is
providing a network of programming featuring advertisements
or as the applicant refers to it – ‘information on products
and services available locally to viewers.’” (Brief, p. 4)

§§ 501.01(a) and 803.06. We note no change of name or assignment
has been filed with the Office.
Ser No. 78217142
3
She concludes that “in order to be held descriptive the
mark does not have to describe the subject matter of the
ads the applicant broadcasts...[i]t is enough to tell the
consumer that a feature or the purpose of the network’s
services is to broadcast ads.” (Brief, p. 4) We take
judicial notice of the definition of “advertisement”
presented in the examining attorney’s brief as set forth
below:2
Advertisement: a notice, such as a poster,
newspaper display, or paid announcement in the
electronic media, designed to attract public
attention or patronage. The American Heritage
Dictionary of the English Language (3rd ed. 1992).

We also take judicial notice of the following
definition of the term NETWORK:
Network: 3.a A chain of radio or television
broadcasting stations linked by wire or microwave
relay. b. A company that produces the programs
for these stations. The American Heritage
Dictionary of the English Language, (4th ed. 2000)

In arguing that its proposed mark is not descriptive
applicant states that its “channel will provide content and
programming grouped into different consumer interest
categories, as well as information on products and services
available locally to viewers in those categories...

2 University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983) (Board may take judicial notice of
dictionary definitions).

Ser No. 78217142
4
[V]iewers interested in the latest SUVs will be able to
choose and watch packaged car programming consisting of
commercials as well as augmented information (such as where
the consumer can find the product locally).” Further,
applicant argues that “[w]hile advertisements may be
included in the programming, the actual subject matter(s)
of the programming is not advertising...Thus, applicant’s
mark does not provide any real information about the
subject matter of applicant’s services.”3
“A mark is merely descriptive if it ‘consist[s] merely
of words descriptive of the qualities, ingredients or
characteristics of’ the goods or services related to the
mark.” In re Oppendahl & Larson LLP, 373 F.3d 1171, 71
USPQ2d 1370, 1371 (Fed. Cir. 2004), quoting, Estate of P.D.
Beckwith, Inc. v. Commissioner, 252 U.S. 538, 543 (1920).
See also In re MBNA America Bank N.A., 340 F.3d 1328, 67
USPQ2d 1778, 1780 (Fed. Cir. 2003). The test for

3 In addition, applicant submitted a print-out from the Trademark
Electronic Search System (TESS) of a third-party registration for
the mark HOME BOX OFFICE, noting that it registered without a
Section 2(f) claim. Third-party registrations are not probative
inasmuch as prior decisions of other examining attorneys are not
binding upon the Office and the Board must decide each case on
its own facts and record. In re International Taste Inc., 53
USPQ2d 1604 (TTAB 2000); In re Consolidated Foods Corp., 200 USPQ
477 (TTAB 1978). The second TESS print-out of another third-
party registration attached to its appeal brief is untimely.
Trademark Rule 2.142(d); In re Posthuma, 45 USPQ2d 2011, 2012 n.
2 (TTAB 1998).

Ser No. 78217142
5
determining whether a mark is merely descriptive is whether
it immediately conveys information concerning a quality,
characteristic, function, ingredient, attribute or feature
of the product or service in connection with which it is
used, or intended to be used. In re Engineering Systems
Corp., 2 USPQ2d 1075 (TTAB 1986); In re Bright-Crest, Ltd.,
204 USPQ 591 (TTAB 1979). It is not necessary, in order to
find a mark merely descriptive, that the mark describe each
feature of the goods or services, only that it describe a
single, significant quality, feature, etc. In re Gyulay,
820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). In re
Venuture Lending Associates, 226 USPQ 285 (TTAB 1985).
Further, it is well-established that the determination of
mere descriptiveness must be made not in the abstract or on
the basis of guesswork, but in relation to the goods or
services for which registration is sought, the context in
which the mark is used, and the impact that it is likely to
make on the average purchaser of such goods or services.
In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218
(CCPA 1978).
In this case, we are persuaded that the phrase THE AD
NETWORK when used in connection with cable and broadcasting
services would immediately inform the potential users of
those services that the programs involve, in applicant’s
Ser No. 78217142
6
words, “information on products and services...consisting
of commercials....” We are not persuaded otherwise by
applicant’s argument that because the programming is not
about advertising but rather is advertising, the proposed
mark is not descriptive.
When applied to applicant’s services, the phrase THE
AD NETWORK immediately describes, without conjecture or
speculation, a significant feature or function of
applicant’s services, namely the provision of
advertisements broadcast over a network. Nothing requires
the exercise of imagination, cogitation, mental processing
or gathering of further information in order for
prospective users of applicant’s services to perceive
readily the merely descriptive significance of the term THE
AD NETWORK as it pertains to applicant’s services.
Decision: The refusal to register is affirmed.