TSG Enterprises, LLC

Trademark Trial and Appeal Board

Dec 21, 2017

No. 86873239 (T.T.A.B. Dec. 21, 2017)

Mailed:
December 21, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re TSG Enterprises, LLC
________

Serial No. 86873239
_______

Adam S. Baldridge and Mitchell S. Ashkenaz of Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC, for TSG Enterprises, LLC.

Christopher Buongiorno, Trademark Examining Attorney, Law Office 102
Mitchell Front, Managing Attorney.
_______

Before Ritchie, Lykos, and Adlin, Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

TSG Enterprises, LLC (“Applicant”) filed an application to register on the
Principal Register the mark INTELLIGENT QUEUE,1 in standard character
format, for the following goods and services:

1 Serial No. 86873239, filed on January 12, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s assertion of a bona fide
intent to use the mark in commerce.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser. No. 86873239
2
International Class 9: Software for expense management; software for
invoice processing; software for invoice auditing.

International Class 42: Providing a website featuring non-downloadable
software for expense management and processing and invoice auditing;
software as a service (SAAS) services featuring software for expense
management and processing and invoice auditing.

The Trademark Examining Attorney refused registration on the ground that
the applied-for mark is merely descriptive of the goods and services pursuant
to Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). When the
refusal was made final, Applicant filed this appeal, which is fully briefed. For
the reasons discussed below, we affirm.
Mere Descriptiveness
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the
goods or services. See In re Chamber of Commerce of the U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (citing In re Gyulay, 820 F.2d 1216,
3 USPQ2d 1009 (Fed. Cir. 1987)); see also In re TriVita, Inc., 783 F.3d 872,
114 USPQ2d 1574, 1575 (Fed. Cir. 2015) and In re Abcor Dev. Corp., 588 F.2d
811, 200 USPQ 215, 217-18 (CCPA 1978). Whether a term is 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
Ser. No. 86873239
3
because of the manner of its use. In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). That a term may have other meanings in different contexts is
not controlling. Id. Moreover, 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). See also In re
Patent & Trademark Services Inc., 49 USPQ2d 1537 (TTAB 1998); In re
Home Builders Association of Greenville, 18 USPQ2d 1313 (TTAB 1990); and
In re American Greetings Corp., 226 USPQ 365 (TTAB 1985).
On the other hand, if a mark requires imagination, thought and
perception to ascertain the nature of the goods or services, then the mark is
suggestive. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd, 695 F.3d
1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (citing In re Abcor Dev. Corp.,
200 USPQ 215). A composite of descriptive terms is registrable only if it has a
separate, non-descriptive meaning. In re Colonial Stores, Inc., 394 F.2d 549,
157 USPQ 382, 385 (CCPA 1968) (holding SUGAR & SPICE not merely
descriptive of bakery products). The applied-for mark is INTELLIGENT
QUEUE.
The Examining Attorney argues that INTELLIGENT QUEUE is merely
descriptive because it describes a feature or characteristic of Applicant’s
software and website featuring non-downloadable software, that is, that the
Ser. No. 86873239
4
software is considered “intelligent” in that it will “queue” invoices and assist
users in expense management. The Examining Attorney relies on the
following definition of “queue”:
queue: a waiting line especially of persons or vehicles.
Example: Three jobs remain in the printer queue.2

We take judicial notice of the definition of “intelligent,” in relevant part:

intelligent: guided or controlled by a computer.3

The Examining Attorney provided evidence which reveals that these
terms are used in their ordinary sense in connection with Applicant’s
software. Specifically, third parties use the terms “intelligent” and “queue” to
describe similar expense management and other software or websites
providing non-downloadable software.
Partners to invest in QPID Health software; Tool helps doctors
make better use of digital patient records: . . . The primary
purpose of the Epic system will be to catalogue patient data,
while QPID’s intelligent software will retrieve data from that
virtual storage bin within microseconds to display a “concise
snapshot” of a patient as they are sitting with their doctor.4

Chat up a retailer on Messenger?: . . . reports indicate people
may be sharing less personal information on the social network
– either because of privacy concerns or the appeal of competing
apps. Facebook is joining several tech companies working to
promote the use of intelligent software programs known as

2 Merriam-webster.com. Attached to April 29, 2016 Office Action, at 3.
3 Merriam-webster.com. The Board may take judicial notice of dictionary definitions.
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).
4 Lexis.com. The Boston Globe, January 14, 2016. Attached to April 29, 2016
Office Action, at 24.
Ser. No. 86873239
5
“chatbots,” which let businesses interact with customers in
conversational language.5

The Race to Control Artificial Intelligence, and Tech’s Future: . .
. . Intelligent software applications will become commonplace,
said Jeff Dean, a computer scientist who oversees Google’s A.I.
development. “And machine learning will touch every
industry.”6

Vanderlande: Intelligent Software: Tighter schedules, higher
volumes and increasing customer demands make intelligent
software an essential part of the sorting process. In addition to
hardware, it now forms a key part of Vanderlande’s proposition.7

Route Exception Invoices: This workflow automatically routes
invoices with incomplete and/or invalid information to an
Exception queue so that Accounts Payable personnel can
complete and/or correct the information.8

Apptivo: What is Invoice Queue and how does it work?
Timesheets: All the approved timesheets are queued under
invoice queue for generating an invoice.9

One website even uses the exact terms together, to describe how invoices can
be queued in an intelligent manner by this type of software:
Even Invoice Queues Can be more Intelligent: Just Add Process
Automation: . . . . Intelligent queues are capable of treating
invoices differently in real-time for various processing needs like
work allocation, initiating workflows, identifying specific
processing tasks, and data analysis. They can be configured to
‘sense’ priority, instead of following the first-in-first-out rule.
http://sites.tcs.com/blogs/agile-business/intelligent-queues-
invoic-processing-automation.10

5 Lexis.com. Chicago Tribune, April 13, 2016. Attached to April 29, 2016
Office Action, at 22.
6 Lexis.com. The New York Times, March 26, 2016. Attached to April 29,
2016 Office Action, at 23.
7 Vanderlande.com. Attached to April 29, 2016 Office Action, at 20.
8 Penta.com. Attached to November 22, 2016 Final Office Action at 17.
9 Apptivo.com/answers December 19, 2012. Attached to November 22, 2016
Final Office Action at 6-7.
10 Attached to November 22, 2016 Final Office Action at 29-31.
Ser. No. 86873239
6

The Examining Attorney also included in the record the following
excerpt from Applicant’s website:
TSG Enterprises Announces New Name & Software: TSG
Enterprises announces the new name RadiusPoint© and the
release of ExpenseLogic™, a single platform solution for
Telecom and Utility Expense Management. RadiusPoint© a
technology based company was developed specifically for those
organizations that are seeking an expense management solution
. . . ExpenseLogic™ is an intelligent software package that will
benefit and meet the needs of the United States and European
companies.11

Applicant admits that the latter excerpt is from its website.12 However,
Applicant argues that since the reference on the website is to a different
software product, rather than to the one at issue in this proceeding, it is not
relevant. However, the software product appears to be a similar “expense
management” program, like the one for which Applicant seeks registration.
Thus, Applicant’s descriptive use of the term “intelligent” with regard to that
software product similarly indicates the informational nature of the term.
The Examining Attorney also submitted third-party registrations,
registered on the Principal Register, that contain the term “INTELLIGENT”
or “QUEUE” in the mark, with a disclaimer thereof for similar types of
software. These include the following:

11 http://radiuspoint.com. Attached to November 22, 2016 Final Office Action at 2.
12 4 TTABVUE 8.
Ser. No. 86873239
7
MARK REGISTRATION
NO.
RELEVANT
GOODS/
SERVICES
DISCLAIMER
INTELLIGENT
INSITES and
design
4906978 Software for
“asset and
inventory
management”
“INTELLIGENT”
GENISYS 2
INTELLIGENT
RENTAL
SOFTWARE
and design
4877087 Software for
“rental and
business
industries”
“INTELLIGENT
RENTAL
SOFTWARE”
QUEUE
MASTER
2075330 Software to
“control and
manipulate”
printing
functions
“QUEUE”
POWER!
QUEUE and
design
4080352 Software for
“managing,
tracking and
monitoring
real estate
appraisals”
“QUEUE”
QUICK
QUEUE
3987162 Software for
“creation of a
one-time
music
playlist”
“QUEUE”
HDS QUEUE
ONLINE
WAITING
LIST and
design
4757039 Software for
“management
of public and
tribal
housing
services”
“QUEUE”

Although these are not binding on our analysis,13 they are at least evidence
that the Office has required, or that third parties have found the terms

13 See In re Cordua Restaurants, Inc., 823 F.3d 594, 118 USPQ2d 1632, 1635 (Fed.
Cir. 2016) (“The PTO is required to examine all trademark applications for
compliance with each and every eligibility requirement . . . .”); In re Shinnecock
Smoke Shop, 571 F.3d 1171, 1174, 91 USPQ2d 1218, 1221 (Fed. Cir. 2009) In re Nett
Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some
prior registrations had some characteristics similar to Nett Designs’ application, the
PTO’s allowance of such prior registrations does not bind the Board or this court.”).
Ser. No. 86873239
8
“INTELLIGENT” and “QUEUE” for similar goods and services to merit, a
disclaimer.
Applicant argues that the composite term “INTELLIGENT QUEUE”
creates a unitary and non-descriptive meaning as applied to the goods and
services. See In re Colonial Stores, Inc., 157 USPQ at 385. Applicant does not,
however, explain what that non-descriptive meaning may be. Rather, we find
that the applied-for mark, when viewed in relation to Applicant’s goods and
services in International Classes 9 and 42, immediately conveys that
Applicant’s software goods and services may provide as a characteristic or
feature an “intelligent queue” for consumers. That is, Applicant’s expense
management software goods and services may provide some measure of
intelligent selection in the queuing of invoices and related devices. While
doubt is resolved for Applicant, we have no doubt that consumers who know
what the goods and services are will require no imagination, thought or
perception to arrive at this conclusion. See DuoProSS Meditech Corp. v.
Inviro Med. Devices, Ltd, 103 USPQ2d at 1755. Therefore, we find that the
proposed mark is merely descriptive of the identified goods and services, and
we affirm the refusal to register.
Decision: The descriptiveness refusal to register under Section
2(e)(1) is affirmed.