Skyline Communications NVDownload PDFTrademark Trial and Appeal BoardAug 1, 201979194686 (T.T.A.B. Aug. 1, 2019) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: August 1, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Skyline Communications NV _____ Serial No. 79194686 _____ Clifford D. Hyra of Symbus Law Group, LLC, for Skyline Communications NV. Natalie L. Kenealy, Trademark Examining Attorney, Law Office 104, Zachary Cromer, Managing Attorney. _____ Before Cataldo, Adlin, and Lynch Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: I. Background Skyline Communications NV (“Applicant”) seeks to register on the Principal Register the proposed mark for: Software for managing networks of broadcast-specific devices in the satellite industry and the broadcasting sector, namely, for management and configuration of broadcast-specific devices including encoders, modulators, and RF signal routers, and for setting up broadcast services across chains of devices from different vendors, and to monitor the status of the broadcast devices and facilitate Serial No. 79194686 - 2 - the remote control of those devices, and showcase errors and defects in the networks of broadcast devices; software for operation support systems in the nature of software to monitor, control, analyze and manage a network of broadcast-specific devices in the satellite industry and the broadcasting sector, namely, for management and configuration of broadcast-specific devices including encoders, modulators, and RF signal routers, and for setting up broadcast services across chains of devices from different vendors, and to monitor the status of the broadcast devices and facilitate the remote control of those devices, and showcase errors and defects in the networks of broadcast devices; computer hardware and software for managing, monitoring and securing networks, computer disk drives, electronic data storage systems, databases and other storage media via computer, namely, for management and configuration of broadcast-specific devices including encoders, modulators, and RF signal routers, and for setting up broadcast services across chains of devices from different vendors, and to monitor the status of the broadcast devices and facilitate the remote control of those devices, and showcase errors and defects in the networks of broadcast devices; all of the aforesaid goods exclusively relating to mobile telecommunications, internet, television and satellite services in International Class 9; and Technical support services, namely, monitoring technological functions of computer network systems in the field of computers, software and hardware, storage networks for computers, storage media for computers, namely, monitoring the status of broadcast-specific devices in the satellite industry and the broadcasting sector, including encoders, modulators, and RF signal routers, and showcasing errors and defects in the broadcast-specific devices; technical support services, namely, monitoring technological functions of computer networks systems in the nature of managing, monitoring and protecting computer networks, computer disk drives, electronic data storage systems, databases and other storage media via computer networks, namely, monitoring the status of broadcast-specific devices in a network, including encoders, modulators, and RF signal routers, and showcasing errors and defects in the broadcast-specific devices; technical support services, namely, providing Serial No. 79194686 - 3 - backup computer programs and facilities; aforementioned services rendered in the context of mobile telecommunications, internet, television, and satellite services in International Class 42.1 The application includes this description of the mark: “[t]he mark consists of the stylized wording ‘DATAMINER’ displayed in blue.” The Examining Attorney refused registration on the grounds that the proposed mark is generic, and in the alternative, that it is merely descriptive and has not acquired distinctiveness. II. Genericness “A generic term ‘is the common descriptive name of a class of goods or services.’ [citation omitted]. A generic mark, being the ‘ultimate in descriptiveness,’ cannot acquire distinctiveness.” Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1045 (Fed. Cir. 2018) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986)). Whether a proposed mark is generic rests on its primary significance to the relevant public. In re Am. Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999); Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991). Making this determination “involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered … understood by the relevant public primarily to refer to that genus of goods or services?” Marvin Ginn, 228 USPQ at 530; 1 Application Serial No. 79194686 is based on Section 66(a) of the Trademark Act, 15 U.S.C. § 1141f(a), relying on International Registration Number 1315712, and has a filing date of July 20, 2016. Serial No. 79194686 - 4 - see also Royal Crown, 127 USPQ2d at 1046. A term also can be considered generic if the public understands it to refer to a part of the genus, “even if the public does not understand the term to refer to the broad genus as a whole.” In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1637-38 (Fed. Cir. 2016). The Examining Attorney must establish by clear evidence that a mark is generic. In re Hotels.com, L.P., 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009); In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987). A. The Genus Because the identification of goods in an application defines the scope of rights that will be accorded the owner of any resulting registration under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), generally “a proper genericness inquiry focuses on the description of [goods] set forth in the [application or] certificate of registration.” Cordua Rests., 118 USPQ2d at 1636 (quoting Magic Wand, 19 USPQ2d at 1552). Based on Applicant’s identification, the Examining Attorney has opined that the genus is “software and technical support services that analyze activity, monitor and showcase errors and defects in computer systems and hardware.”2 Applicant does not object to this characterization of the genus in its Reply Brief. After a careful review of the identification and the record, we find the appropriate genus to be software and technical support services that monitor and analyze the 2 14 TTABVUE 5 (Examining Attorney’s Brief). Serial No. 79194686 - 5 - status of broadcast devices and showcase errors and defects in the networks of broadcast devices, in the field of mobile telecommunications, internet, television and satellite services. See In re Empire Tech. Dev. LLC, 123 USPQ2d 1544, 1548 (TTAB 2017) (“distillation of a complicated or lengthy description of goods/services into a clear, more succinct genus greatly facilitates the determination of whether a term is generic”) (quoting In re ActiveVideo Networks, Inc., 111 USPQ2d 1581, 1600 (TTAB 2014)). B. The Relevant Public’s Understanding of “Dataminer” “[E]vidence of the public’s perception may be obtained from ‘any competent source, such as consumer surveys, dictionaries, newspapers and other publications.’” Princeton Vanguard, LLC v. Frito-Lay North Am., Inc., 786 F.3d 960, 114 USPQ2d 1827, 1833 (Fed. Cir. 2015) (quoting In re Northland Aluminum Prods., Inc., 777 F.2d 1556, 1559 (Fed. Cir. 1985)). The Examining Attorney submitted a wide variety of evidence reflecting the public’s understanding of the term “dataminer” and the variations “data miner” and “data mining.” Several definitions (with emphasis added) provide general background on the term: A Wikipedia entry for “Data mining” defines it as “the computing process of discovering patterns in large data sets…” and states in pertinent part that “[t]he overall goal of the data mining process is to extract information from a data set and transform it into an understandable structure for further use…. It also is a buzzword and is frequently applied to any form of large-scale data or information processing (collection, extraction, warehousing, analysis, and statistics) as well as any application of computer decision support system, including Serial No. 79194686 - 6 - artificial intelligence, machine learning, and business intelligence.”3 A Webopedia entry for “data miner” defines it as “[a] software application that monitors and/or analyzes the activities of a computer, and subsequently its user, [for] the purpose of collecting information that typically will be used for marketing purposes.”4 PC Magazine’s Encyclopedia defines “data miner” as “[a] program that analyzes activity in the computer. It may refer to legitimate analyses commonly performed by organizations internally (see data mining) or to spyware that secretly captures a user’s Web surfing habits (see spyware).”5 Several online articles and a book excerpt (with emphasis added below) use “data miner” or “data mining” to refer to a type of software, a company that makes such software, or the industry in general: The PAT Research website features an article on “Top 33 Data Mining Software,” and explains that “[d]ata mining software refers to software that allows companies and other users to extract usable data from a large set of raw data to find correlations, patterns, and anomalies.”6 An article from Analytics Magazine titled “Understanding data miners” reports on an annual survey “of the data mining community,” which although not specifically defined by the surveyor, included “representatives of data mining software companies,” and these “data miners” responded to questions about issues such as “preferences for analytic software” and “the future of data mining.” “The data miners responding to the survey apply data mining in a diverse set of industries and fields” ranging from “telecommunications to pharmaceuticals to military 3 June 30, 2017 Office Action at 26-32 (Wikipedia.org). 4 February 16, 2018 Office Action at 35 (webopedia.com) 5 November 9, 2016 Office Action at 12 (pcmag.com). 6 September 30, 2018 Reconsideration Letter at 4-5 (predictiveanalyticstoday.com). Serial No. 79194686 - 7 - security.”7 At one point, the article refers to “the open source data mining software R” in comparing it to other software.8 An article from Bloomberg Technology about Oracle’s potential acquisition of “data-analytics company Palantir Technologies Inc.” states that there were talks “about having the software maker acquire the data miner.”9 The headline of another article about Palantir Technologies in Forbes.com refers to it as “CIA-backed Data-Miner Palantir,” and the body of the article refers to it as a “data-mining company.”10 An article from Bloomberg Politics about technology firm Cambridge Analytica bears the headline “Cruz-Connected Data Miner Aims to Get Inside U.S. Voters’ Heads.”11 An excerpt from the book Ethical Data Mining Applications for Socio-Economic Development refers to “[t]he computer science (software engineering and data miner) field.”12 Third parties in the software industry use “dataminer,” “data miner” and “data mining” in a similar manner to identify their own products and services (emphasis added below): 7 June 30, 2017 Office Action at 38-41 (analytics-magazine.org). 8 June 30, 2017 Office Action at 40 (analytics-magazine.org). 9 June 30, 2017 Office Action at 8 (Bloomberg.com). The Examining Attorney also submitted screenshots from the Palantir website that promote aspects of its goods and services such as the ability to “Harness massive-scale data to limit exposure, detect information security threats, and harden defenses against cyber attacks” as well as to “Leverage data to identify vulnerabilities, protect personnel and resources, and prepare better for the unexpected.” Id. at 16-22 (palantir.com). The webpage for Palantir GOTHAM promotes the ability to “Integrate, manage, secure, and analyze all of your enterprise data.” Id. at 19. 10 June 30, 2017 Office Action at 13 (forbes.com). 11 June 30, 2017 Office Action at 9 (Bloomberg.com). 12 June 30, 2017 Office Action at 42-51 (reference on p.46). Serial No. 79194686 - 8 - The KD Nuggets website lists “Software Suites/Platforms for Analytics, Data Mining, Data Science, and Machine Learning.”13 The website of STATISICA Solutions promotes its “Data Miner,” described as “the most flexible and powerful data mining solution available on the market today, with more predictive modeling and other data mining algorithms, options, and capabilities than any comparable package.”14 The Praxis website “introduces the most powerful query engine and dataminer in medicine,” which allows users to “create their own queries and gather data” and “comply with all reporting requirements.”15 Think Enterprise Data Miner uses “data mining techniques and knowledge discovery” to help users manage their information.16 Estard Data Miner describes itself as “a comprehensive data mining application, able to discover hidden relations both in structured and unstructured data. The newest data mining techniques were incorporated into this data mining software for carrying out automated data analysis.”17 A screenshot from the Thales website about its “Fully Homomorphic Encryption” states that “Credit card companies, banks, research organizations, educators, data miners and anyone who wants to share data without losing control of it could one 13 September 30, 2018 Reconsideration Letter at 40 (kdnuggets.com). 14 June 30, 2017 Office Action at 23-24 (statsoft.com). 15 February 16, 2018 Office Action at 25 (praxisemr.com). 16 September 30, 2018 Reconsideration Letter at 36 (predictiveanalyticstoday.com). 17 September 30, 2018 Reconsideration Letter at 46 (estard-data-miner.soft112.com). Serial No. 79194686 - 9 - day use Homomorphic Encryption….” In addition, two third-party registrations in the record for software include disclaimers of “data miner.”18 There are also numerous examples of third parties in the industry using “Data Miner” or “DataMiner” to name software that monitors and analyzes data. For example (with emphasis added): The IDL DataMiner “allows IDL users to access and manipulate information from a variety of database management systems.”19 Elite Merchant Solutions describes its DataMiner as follows: “DataMiner is a tracking tool that collects the demographic, geographic, and economic attributes of your customers into data you can use to optimize your marketing and social media campaigns….”20 The IBM i2 Analyst Workstation, “an integrated collection of analytical tools,” includes “Data Miner.”21 The IntegraSystems webpage promotes PixelPoint POS Software that includes the “powerful reporting tool[] DataMiner” to help “generate a wealth of meaningful, easy to read, real time information that can help you make smarter management decisions based on actionable information.”22 “The Oracle Data Miner is an extension to Oracle SQL Developer that enables data analysts to view their data, built [sic] and evaluate multiple machine learning/data mining models and accelerate model deployment.”23 18 June 30, 2017 Office Action at 2-3. 19 February 16, 2018 Office Action at 2 (Dartmouth.edu). 20 February 16, 2018 Office Action at 4 (elitedatacorp.com). 21 February 16, 2018 Office Action at 13 (-01.ibm.com). 22 February 16, 2018 Office Action at 19 (integra-systems.net). 23 February 16, 2018 Office Action at 20 (oracle.com). Serial No. 79194686 - 10 - Space Update Inc.’s webpage offers “Data Miner,” which allows users to choose a data subject and topic and an optional “mining tool,” then “the software calculates a world map with the data values.”24 West Virginia University’s webpage for Data Miner states that “Data Miner is a flexible tool that enables accelerated retrieval of WVU’s administrative data stored in MAP.”25 Pacific Northwest National Laboratory’s website reports on “A Meaningful Data Miner,” with the subtitle “GEMS’ cooperative software framework helps tame ‘too Big’ data.”26 Aviation DataMiner Software is promoted as a tool that analyzes data “designed from the bottom up to deliver the range of industry metrics and trend reports that meet the challenges of the aviation industry of the 21st century.”27 The Knowlesys Web Data Miner “accurately extract[s] the semi-structured data on the target Internet webpages as structured records in batches, and save[s] them to the local database for further usage purposes. We are not persuaded by Applicant’s contention that the third-party evidence is “limited in nature and supports only that certain specific companies or products are referred to as data-miners or include ‘data miner’ as part of the product’s name.”28 While some of this latter group of third-party uses could have been intended as source identifiers, we find that given the definitions, articles and other third-party generic uses of record, DATAMINER is generic. 24 February 16, 2018 Office Action at 28 (spaceupdate.com). 25 February 16, 2018 Office Action at 38 (it.wvu.edu). 26 February 16, 2018 Office Action at 42 (pnni.gov). 27 February 16, 2018 Office Action at 44-46 (airportplanning.com). 28 12 TTABVUE 10 (Applicant’s Brief). Serial No. 79194686 - 11 - In fact, Applicant’s own press release uses the component terms “mining” and “data” to explain its identified software, referring to its DataMiner CPE Manager as “mining valuable key performance data from every single CPE object (such as set- top boxes, cable & DSL modems, eMTAs, etc.) … to provide an extremely detailed and precise look at every element that can impact a network’s performance.”29 See Empire Tech. Dev. LLC, 123 USPQ2d 1549 (“the way an applicant uses an alleged mark (or a component term in a mark), … in promotional materials or packaging, is relevant to whether consumers will perceive the mark as an indicator of source or instead as descriptive or generic.”); see also In re Reed Elsevier Props., 482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007) (appropriate to consider the applicant’s website to provide context for and inform the understanding of the identification); In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir. 2005) (examining the subject website in order to understand the meaning of terms). The evidentiary record provides clear and compelling evidence that the relevant public30 would understand “dataminer” to refer to software and technical support services that monitor and analyze the status of data and showcase errors and defects in the data. The definitions in the record and the third party use show that this type 29 September 30, 2018 Reconsideration Letter at 51-52 (prlog.org) (emphasis added). 30 Applicant argues that the relevant purchaser is in the telecommunications industry, and would be quite sophisticated. Even if we accept this argument, it does not change the genericness of the proposed mark. The evidentiary record includes generic use of the terms in Applicant’s mark within the relevant industry to which these sophisticated purchasers are accustomed. There is no basis to find that even relatively sophisticated purchasers would understand Applicant’s mark as anything other than a generic term for Applicant’s goods and services. Serial No. 79194686 - 12 - of software and technical support services bear the name or are known as “dataminer” and its close variants (“data miner” and “data mining”). While the genus of Applicant’s identified goods and services specifies the particular type of data being monitored and analyzed as coming from broadcast devices in the field of mobile telecommunications, internet, television and satellite services, this does not render “dataminer” any less generic. The term is used generically for software and technical support services in various fields, with all types of data, and therefore encompasses the broadcast and telecommunications data in the genus in this case. We disagree with Applicant that the record reflects “no accepted meaning for the term DATA MINER,”31 as we find the definitions and usage in the record remarkably consistent. C. The Minimal Stylization Next, we consider whether the stylization of renders the mark eligible for registration. “A display of descriptive or otherwise unregistrable matter is not registrable on the Principal Register unless the design features of the asserted mark create an impression on the purchasers separate and apart from the impression made by the words themselves….” Cordua Rests., 118 USPQ2d at 1639 (quoting In re Sadoru Grp., Ltd., 105 USPQ2d 1484, 1486 (TTAB 2012)). In this case, the mark appears in all lowercase letters and the blue font is not particularly notable or distinctive. See Sadoru Grp., Ltd., 105 USPQ2d 1484 (stylization insufficient given blue “slightly stylized block lettering”). There is nothing about the color or font that 31 12 TTABVUE 9 (Applicant’s Brief). Serial No. 79194686 - 13 - creates its own impression, apart from the word “dataminer.” See Northland Aluminum, 777 F.2d at 1561 (affirming the TTAB’s rejection, as generic, of a stylized mark that was “not so distinctive as to create a commercial impression separate and apart from the” word itself). Thus, the stylization does not render the mark eligible. D. Conclusion as to Genericness Upon consideration of all of the evidence of record, we find that the Examining Attorney demonstrated, by clear evidence of generic use, that is understood by the relevant purchasing public primarily to refer to software and technical support services that monitor and analyze the status of broadcast devices and showcase errors and defects in the networks of broadcast devices, in the field of mobile telecommunications, internet, television and satellite services. III. Descriptiveness For completeness, we address the alternative refusal under Section 2(e)(1) of the Trademark Act, precluding registration of “a mark which, (1) when used on or in connection with the goods [or services] of the applicant is merely descriptive . . . of them.” 15 U.S.C. § 1052(e)(1). A term is merely descriptive within the meaning of the statute “if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used.” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2017) (quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); see also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015). Serial No. 79194686 - 14 - Descriptiveness must be assessed “in relation to the goods [and services] for which registration is sought, the context in which it is being used, 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 or intended use.” Bayer AG, 82 USPQ2d at 1831 (citing In re Abcor Dev., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). The descriptiveness analysis concentrates on the goods and services identified in the application. See Cordua Rests., 118 USPQ2d at 1636 (quoting Octocom Sys., Inc. v. Houston Comput. Servs., Inc., 918 F.2d 937, 16 USQP2d 1783, 1787 (Fed. Cir. 1990)). If a mark is descriptive of any of the goods or services in a class for which registration is sought, it is proper to refuse registration as to the entire class. Chamber of Commerce, 102 USPQ2d at 1219. Based on the record as a whole, for the same reasons set out above in the genericness discussion, we find Applicant’s mark highly descriptive. See Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1045 (Fed. Cir. 2018) (instructing Board to first determine whether a proposed mark is highly descriptive rather than merely descriptive before assessing acquired distinctiveness). Applicant’s argument that its mark is a neologism is belied by the record. Applicant’s reliance on five third-party registrations of marks that include the wording “datamine” is unpersuasive. The goods and services in those registrations differ from Applicant’s, so as to change the analysis, and we are not privy to the evidentiary records underlying those registrations that would inform a genericness or descriptiveness assessment. Regardless, each case must be decided on its own facts. In re Shinnecock Serial No. 79194686 - 15 - Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221 (Fed. Cir. 2009) (“Applicant’s allegations regarding similar marks are irrelevant because each application must be considered on its own merits.”). The eligibility determination in this case must be made based on “the evidence in the present record.” Cordua Rests., 118 USPQ2d at 1635. Applicant argues that even if “dataminer” has an accepted meaning, its goods and services do not involve datamining. Applicant’s identification of goods and services and promotional materials show, however, that the goods and services align with the accepted understanding of datamining software and technical support services.32 IV. Acquired Distinctiveness In the alternative, Applicant claims acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f).33 We determine whether Applicant’s asserted mark has acquired distinctiveness based on the entire record, keeping in mind that “[t]he applicant … bears the burden of proving acquired distinctiveness.” In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015) (citation omitted). Because we have found the proposed mark highly descriptive, Applicant’s burden of establishing acquired distinctiveness under Section 2(f) is “commensurately high.” 32 September 30, 2018 Reconsideration Letter at 51-52 (prlog.org) (“mining valuable key performance data”). 33 This claim would be considered only if our genericness determination were reversed, but the descriptiveness determination were upheld. “Of course, a generic term cannot be appropriated exclusively as a trademark irrespective of the length of use or level of promotional efforts.” See In re ActiveVideo Networks, Inc., 111 USPQ2d 1581, 1605 (TTAB 2014). Serial No. 79194686 - 16 - In re Virtual Independent Paralegals, LLC, 2019 BL 111512, *11 (TTAB 2019) (citing cases). The following six factors inform whether a mark has acquired secondary meaning: (1) association of the trade[mark] with a particular source by actual purchasers (typically measured by consumer surveys); (2) length, degree, and exclusivity of use; (3) amount and manner of advertising; (4) amount of sales and number of customers; (5) intentional copying; and (6) unsolicited media coverage of the product embodying the mark . . . All six factors are to be weighed together in determining the existence of secondary meaning. Converse, Inc. v. Int’l Trade Comm’n, 907 F.3d 1361, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018). In support of its Section 2(f) claim, Applicant relies on a declaration by its CEO alleging continuous use of the mark on software for ten years, and continuous and substantially exclusive use on the goods and services in the application for at least five years, annual sales in 2016 exceeding $8 million,34 customers which are “some of the largest companies in the world,” as well as “advertisement, publicity and recognition.”35 The record reflects some industry recognition, for example, placing Applicant among the winners of the “Teleport Technology of the Year,”36 on the “Shortlist” for the CSI Magazine award for Best Monitoring or Network Management 34 June 2, 2017 Response to Office Action at 23 (Vandenberghe Declaration). 35 12 TTABVUE 13-14 (Applicant’s Brief); see also 4 TTABVUE; June 2, 2017 Office Action at 23-24 (Vandenberghe Declaration). 36 4 TTABVUE 13. Serial No. 79194686 - 17 - Solution in 2017 and 2018,37 and as a BaM award finalist for 2018 in the “Manage” category.38 Given the highly descriptive nature of Applicant’s proposed mark, however, we find the evidence insufficient to show acquired distinctiveness. The use is not particularly long, and the record reflects that Applicant’s use of “dataminer” is far from substantially exclusive in the industry. “When the record shows that purchasers are confronted with more than one (let alone numerous) independent users of a term or device, an application for registration under Section 2(f) cannot be successful, for distinctiveness on which purchasers may rely is lacking in such circumstances.” Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984); see also Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1682 (TTAB 2007). The record lacks the necessary information and context to credit advertising and recognition with much probative value, because we have no sense of the extent of consumer exposure to the promotions and awards. While Applicant’s sales and customer base suggest that it has achieved some success in the industry, the evidence does not convince us that this translates to consumer recognition of this at best highly descriptive mark. See In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir 1999) (claim based on annual sales under the mark of approximately eighty- five million dollars, and annual advertising expenditures in excess of ten million dollars, not sufficient to establish acquired distinctiveness in view of highly 37 4 TTABVUE 33-34 38 4 TTABVUE 42-45. Serial No. 79194686 - 18 - descriptive nature of the mark); In re Melville Corp., 228 USPQ at 972 (affirming the rejection of Section 2(f) claim, despite substantial advertising and revenue figures, given “the absence of any direct evidence that the purchasing public has come to recognize applicant’s slogan as a term identifying applicant’s services”). Here, Applicant has failed to meet its burden to show that consumers would recognize the proposed mark as a source indicator. Decision: We affirm the refusal to register Applicant’s proposed mark on the ground that it is a generic designation of the identified goods and services, and in the alternative, we affirm the refusal to register on the ground that the mark is merely descriptive and without acquired distinctiveness. Copy with citationCopy as parenthetical citation