IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

Applicant : Prolexic Technologies, Inc.

Appl. No. : 77/751,008

Filed : 06/03/2009

Mark : Real Browser Verification

Examining Attorney : Lott, Maureen Dall

Law Office : 117

A M E N D M E N T

Commissioner for Trademarks
P.O. Box 1451
Alexandria, VA 22313-1451

Examining Attorney Lott:

Responsive to the Office action dated September 8, 2009, kindly

amend the above-identified application as follows:

Amend the identification of Goods:

Class 045. Computer network security services, namely,

mitigating distributed denial of services (DDoS) attacks on

computer servers connected to the Internet computer network

security services, namely, monitoring of public-facing network

traffic for security purposes, for purposes of mitigating

distributed denial of service (DDoS) attacks on computer servers

connected to the Internet
Applic. No. 77/751,008
Response to Office Action Dated September 8, 2009
Response Mailed November 10, 2009

Amend the Docket Number to:

1156-T09-003

Remarks:

Mark is Merely Descriptive under Section 2(e)(1)

“Real Browser Verification” is at least suggestive, and not

merely descriptive, because additional information and

inspiration is required before an average consumer appreciates

what Applicant is selling.

Before discussing the rejection further, a description of the

services being sold by the Applicant is provided. The Applicant

sells services that detect and mitigate a Distributed Denial of

Services (DDoS) attack. The Examining Attorney can read about

DDoS attacks on Wikipedia at

http://en.wikipedia.org/wiki/Ddos#Distributed_attack. In DDoS

attacks, a number of computer systems are infected with virus-

like programs know as botnets. When the botnets are activated,

they request information from a targeted server at such high

frequencies and from so many different infected systems that the

server no longer can respond to legitimate traffic. The server

is effectively shut down.

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Applic. No. 77/751,008
Response to Office Action Dated September 8, 2009
Response Mailed November 10, 2009

As part of Applicant’s service that detects and mitigates DDoS

attacks, the Applicant confirms that a request to a client’s

server is from an actual Internet Browser, as contrasted to a

request from an infected botnet.

“Real Browser” is not a term used within the trade or by an

average customer to describe an actual browser. The term was

coined by the Applicant. An average consumer does not describe

a non-infected (i.e. a normal) browser as a “real browser”.

Accordingly, “Real Browser Verification” is at least a

suggestive term because an average customer would require some

imagination or inspiration to be able to interpret that “Real

Browser Verification” is referring to technology that is

confirming that Internet traffic is being generated by an actual

web browser program, as opposed to a botnet. Furthermore,

because no one refers to actual web browsers as “real browsers”,

additional information is required before an average consumer

appreciates that what Applicant is distinguishing by using “real

browser” is traffic from infected computers.

The Examining Attorney’s own mistaken analysis supports that the

mark is suggestive. In the Office action, the Examining

Attorney’s analysis of the mark suggested was descriptive

because it involves, “A non-simulated, actual verification of a

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Applic. No. 77/751,008
Response to Office Action Dated September 8, 2009
Response Mailed November 10, 2009

browser program, e.g. to verify that a website supports a

certain browser or that the browser can read or access certain

information.” So, in the Examining Attorney’s own words, the

mark suggests either a verification that a browser is authentic

licensed software or that a webpage is supported by a given

browser. However, as discussed, the Applicant is selling an

entirely different service. Because an average consumer would

make the same mistake as the Examining Attorney, and because the

mark does not describe the actual services being sold, the mark

being registered is not merely descriptive. The mark is at

least suggestive.

Because the mark is suggestive, the mark is inherently

distinctive and deserves registration on the principal register.

Identification of Goods:

The Examining Attorney rejected the identification of goods.

The listing has been amended in a manner that is different than

the Examining Attorney’s suggestion. The new listing is the

following: “Computer network security services, namely,

monitoring of public-facing network traffic for security

purposes, for purposes of mitigating distributed denial of

service (DDoS) attacks on computer servers connected to the

Internet.” The amended listing should clarify that the service

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Applic. No. 77/751,008
Response to Office Action Dated September 8, 2009
Response Mailed November 10, 2009

that is being sold is not about setting up system (i.e. not

class 042), but is a security service for customers running

servers that are connected to the internet. The service does

not relate to intra-local network traffic. The service relates

to outward facing (i.e. to and from the Internet) traffic.

Multiple-Classification Requirement

The multiple-classification requirement is moot in light of the

amended listing of services.

Conclusion:

Because the mark is at least suggestive and is therefore

inherently distinctive, the Examining Attorney is asked to allow

the mark to be registered on the principal register.

Respectfully submitted,

/Loren D. Pearson/

LOREN DONALD PEARSON
Registered Patent Attorney
Board Certified Intellectual Property Attorney
Reg. No. 42,987
Florida Bar 0095151
FLEIT GIBBONS GUTMAN BONGINI & BIANCO, PL
21355 E. Dixie Highway
Suite 115
Miami, FL 33180
Tel.: (305)830-2600
Fax: (305)830-2605

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