Skyline Communications NV

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

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
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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.

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Serial No. 79194686

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).

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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

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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).

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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).

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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).

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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).

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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).

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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).
30Applicant 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.

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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).

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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).

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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

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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.”

32September 30, 2018 Reconsideration Letter at 51-52 (prlog.org) (“mining valuable key
performance data”).
33This 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).

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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).
3512 TTABVUE 13-14 (Applicant’s Brief); see also 4 TTABVUE; June 2, 2017 Office Action
at 23-24 (Vandenberghe Declaration).
36 4 TTABVUE 13.

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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.

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Serial No. 79194686

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.

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