`PRECEDENT OF THE TTAB
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`Mailed: 9/11/07
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________
`
`Trademark Trial and Appeal Board
`________
`
`In re Panasonic Corporation of North America
`________
`
`Serial No. 76002076
`_______
`
`Morton Amster of Amster, Rothstein & Ebenstein for
`Panasonic Corporation of North America.
`
`Tamara G. Frazier, Trademark Examining Attorney, Law Office
`116 (Michael W. Baird, Managing Attorney).1
`_______
`
`Before Seeherman, Quinn and Walsh, Administrative Trademark
`Judges.
`
`Opinion by Quinn, Administrative Trademark Judge:
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`An application was filed by Panasonic Corporation of
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`
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`North America to register the mark E-WEAR for “portable
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`audio products, namely, digital audio players that may be
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`worn on various parts of the user’s body, such as the head,
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`wrist, arm, neck or hair.”2
`
`
`1 Ms. Frazier did not assume responsibility of the application
`until the filing of the appeal brief.
`2 Application Serial No. 76002076, filed March 16, 2000, alleging
`a bona fide intention to use the mark in commerce. Applicant
`subsequently filed an amendment to allege use setting forth a
`date of first use anywhere and a date of first use in commerce of
`January 29, 2001.
`
`
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`Ser No. 76002076
`
`
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`The trademark examining attorney refused registration
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`under Section 2(e)(1) of the Trademark Act, 15 U.S.C. §
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`1052(e)(1), on the ground that applicant’s mark, as applied
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`to applicant’s goods, is merely descriptive thereof.
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`
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`When the refusal to register was made final, applicant
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`appealed. Applicant and the examining attorney filed
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`briefs.
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`
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`The examining attorney maintains that the prefix “e”
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`is a well-known abbreviation for “electronic,” and that the
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`term “wear” is descriptive of audio products designed to be
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`worn by the user (as reflected in the identification of
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`goods). The examining attorney contends that the terms “e-
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`wear” and “wearable electronics” are used interchangeably
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`within the electronics industry, and that both terms are
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`merely descriptive of audio products worn by the user. In
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`support of the refusal, the examining attorney introduced
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`dictionary definitions of “e” and “wear,” articles
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`retrieved from the NEXIS database and the Internet, and a
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`printout listing the results of a search using the GOOGLE
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`search engine.
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`
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`Applicant argues that its mark does not forthwith
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`convey an immediate idea about its goods and that,
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`therefore, its mark is, at worst, just suggestive when
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`applied to the goods. Applicant points to various meanings
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`2
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`Ser No. 76002076
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`of the letter “E” other than “electronic.” Applicant also
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`contends that while the term “wear” may be descriptive as
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`applied to conventional clothing, it is only suggestive of
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`non-clothing items, such as applicant’s portable
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`electronics. The average consumer does not think,
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`applicant maintains, of electronic products being “worn” as
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`opposed to be carried on the user’s body. Applicant
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`questions the probative value of the examining attorney’s
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`evidence, pointing out that the terms “wearable
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`electronics” and “e-wear” are often used in the context of
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`goods (e.g., clothing) completely different from
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`applicant’s audio products. Moreover, applicant contends,
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`even if the term “wearable electronics” were viewed as
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`merely descriptive, it is a leap therefrom to conclude that
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`E-WEAR is merely descriptive. Also noteworthy, according
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`to applicant, is the number of articles (over 100) in
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`printed publications wherein E-WEAR is used as a trademark
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`to identify applicant’s products. Finally, applicant urges
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`that any doubt be resolved in its favor. In support of its
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`position, applicant submitted articles in printed
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`publications, and third-party registrations of marks that
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`include the non-disclaimed term “wear” for goods other than
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`clothing.
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`3
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`Ser No. 76002076
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`A term is deemed to be merely descriptive of goods or
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`services, within the meaning of Trademark Act Section
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`2(e)(1), if it forthwith conveys an immediate idea of an
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`ingredient, quality, characteristic, feature, function,
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`purpose or use of the goods or services. See, e.g., In re
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`Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and
`
`In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215,
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`217-18 (CCPA 1978). A term need not immediately convey an
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`idea of each and every specific feature of the applicant’s
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`goods or services in order to be considered merely
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`descriptive; it is enough that the term describes one
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`significant attribute, function or property of the goods or
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`services. See In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
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`1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973).
`
`Whether a term is merely descriptive is determined not
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`in the abstract, but in relation to the goods or services
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`for which registration is sought, the context in which it
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`is being used or is intended to be used on or in connection
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`with those goods or services, and the possible significance
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`that the term would have to the average purchaser of the
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`goods or services because of the manner of its use or
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`intended use. That a term may have other meanings in
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`different contexts is not controlling. In re Bright-Crest,
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`Ltd., 204 USPQ 591, 593 (TTAB 1979). It is settled that:
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`4
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`Ser No. 76002076
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`....the question of whether a mark is
`merely descriptive must be determined
`not in the abstract, that is, not by
`asking whether one can guess, from the
`mark itself, considered in a vacuum,
`what the goods or services are, but
`rather in relation to the goods or
`services for which registration is
`sought, that is, by asking whether,
`when the mark is seen on the goods or
`services, it immediately conveys
`information about their nature.
`
`
`In re Patent & Trademark Services Inc., 49 USPQ2d 1537,
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`1539 (TTAB 1998).
`
`The examining attorney has submitted evidence that the
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`letter “e-” is defined as “electronic; e-mail.”
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`(www.encarta.msn.com). See also In re SPX Corp., 63 USPQ2d
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`1592 (TTAB 2002); and In re Styleclick.com Inc., 57 USPQ2d
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`1445 (TTAB 2000), in both of which cases the Board noted
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`dictionary definitions that the prefix “E” indicates
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`“electronic.” The examining attorney also submitted a
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`dictionary definition showing that the term “wear” is
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`defined, in relevant part, as “the act of wearing or the
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`state of being worn.” (www.bartleby.com) The term is
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`further defined, in relevant part, as “to bear or have upon
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`the person; to have attached to the body or part of it or
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`to the clothing; to carry on or as if on the person.”
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`5
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`Ser No. 76002076
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`Webster’s Third New International Dictionary of the English
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`Language (unabrideged ed. 1993).3
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`Applicant’s advertisement for its goods, “SV-SD75 e-
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`wear SD Audio Player,” reads in pertinent part, as follows:
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`“Put Some Music On! Extremely compact for wearability.”
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`The advertisement, as well as many of the articles about
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`applicant’s product, attests to the small size of the
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`digital audio player, and touts that the goods are to be
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`worn. This is further borne out by pictures of the product
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`and by the language of the identification of goods
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`indicating that the digital audio player “may be worn on
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`various parts of the user’s body, such as the head, wrist,
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`arm, neck or hair.” In this connection, one of the
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`pictures shows the user wearing applicant’s audio digital
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`player around her neck in the manner of a necklace.
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`
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`Articles in printed publications and on the Internet
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`show the following relevant uses of “e-wear” in connection
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`with electronic devices:
`
`“At the Massachusetts Institute of
`Technology, they’ve been researching
`‘e-wear’ – wearable electronics and
`computers – for years,” says Bajarin.
`(www.abcnews.com, December 24, 2004)
`
`
`3 Judicial notice may be taken of dictionary definitions, and we
`have done so with respect to this additional definition.
`University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
`213 USPQ 594, aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
`1983).
`
`6
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`
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`Ser No. 76002076
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`Welcome to wearable computers, e-wear
`if you will, and digital jewelry.
`(Ventura County Star, December 10,
`2001)
`
`And jewelry that doubles as a camera,
`electronic organizer or music player.
`It’s not some future vision – some of
`these products are available now, and
`more are on the way. It’s being called
`wearable electronics, or “e-wear.”
`(www.sptimes.com, June 11, 2001)
`
`More fashionable and less expensive is
`the e-wear from VIA of Northfield,
`Minn. A Pentium PC, a voice-
`recognition hardware and four PC-card
`slots reside in a waistband that looks
`like Bruce Wayne’s bat-belt.
`(USA Today, November 22, 1996)
`
`At NAB, Panasonic showcased new digital
`media products such as “personal e-
`ware” (wearable electronics) and
`public-venue display systems.
`(Electronic Media, April 30, 2001)
`
`Although many wearable fashions sound
`futuristic, some are available today,
`and more are on the way. The
`crossroads between CE (consumer
`electronics) and high fashion couture
`is being called wearable electronics or
`“e-wear.”
`(www.realtytimes.com, March 17, 2006)
`
`The record also includes articles showing uses of “wearable
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`electronics” or “wearable” for various electronic devices:4
`
`
`4 The examining attorney also submitted copies of search results
`for the key words “wearable electronics” and “e-wear wearable
`electronics” generated by the GOOGLE search engine. In some
`cases, a webpage shown in the summaries has been submitted, and
`we have cited to the webpage; however, in most cases, the
`examining attorney did not submit the corresponding webpage.
`Although we have considered the GOOGLE summaries, they are
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`7
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`Ser No. 76002076
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`Some technology-minded fashionphiles
`say the future is not in accessories,
`but rather “wearable electronics” where
`the gadget actually becomes part of the
`clothing. IBM is developing digital
`jewelry, such as a necklace that
`doubles as a microphone; earrings with
`speakers, so wearers can answer calls;
`and watches and bracelets with video
`screens.”
`(The San Diego Union-Tribune, January
`28, 2002)
`
`Sony, meanwhile, is developing a
`version of the Memory Stick that’s half
`the size of current models. “The
`purpose of an ultrasmall type of flash
`media is to open the door for wearable
`electronics, like a wristwatch camera
`or a portable audio device that you
`could wear like a piece of jewelry,”
`Neiman explains.
`(Computer Shopper, November 1, 2001)
`
`So even though the valuable components
`of today’s wearable electronics, such
`as the mobile phone, will be
`unplugged...
`(USA Today, June 1, 2001)
`
`Oakley’s line of “wearable electronics”
`includes sunglasses with a built-in MP3
`player...
`(Contra Costa Times (California),
`December 22, 2005)
`
`And you thought iPods were the pinnacle
`of wearable electronics.
`(St. Louis Post-Dispatch, December 21,
`2005)
`
`Oakley, the supplier and retailer of
`outdoor apparel and accessories,
`
`
`entitled to limited probative value in the absence of the
`corresponding webpages. In re Fitch IBCA, Inc., 64 USPQ2d 1058
`(TTAB 2002).
`
`8
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`Ser No. 76002076
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`shipped its second-generation MP3
`sunglasses with embedded memory, and it
`promises to expand its selection of
`wearable electronics.
`(Twice, December 5, 2005)
`
`Thanksgiving retailers stand to snag
`strong sales in televisions, digital
`cameras, cell phones and wearable
`electronic devices, Goldenberg says.
`(San Bernardino Sun, November 24, 2005)
`
`Wearable technology is now hitting the
`fashion runway. From sexy thigh
`holsters for cell phones to geeky hats
`with built-in cellular microphones,
`wearable electronics are now available
`in the marketplace.
`(Rochester Democrat and Chronicle,
`November 13, 2005)
`
`This Sunglass Icon will have a
`definitive Southern California flavor
`as well as a dedicated “store-within-a-
`store” concept which will highlight and
`feature select Oakley-branded apparel,
`accessories and wearable electronic
`products.
`(PrimeZone Media Network, November 10,
`2005)
`
`The decision for Motorola and Oakley to
`collaborate is natural; Razrwire is not
`the first time either company has tried
`creating wearable electronic
`technology.
`(Sacramento Bee, July 28, 2005)
`
`Samsung intros wearable digital audio
`player.
`(www.macworld.com, May 9, 2001)
`
`Keep the beat strong and your workout
`long with this wearable digital audio
`player/exercise sensor.
`(www.ebay.com)
`
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`9
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`Ser No. 76002076
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`The world’s first MP3 Watch is a cool
`combo wristwatch and wearable audio
`player by Casio that stores up to 33
`minutes of MP3 files.
`(The Boston Herald, November 23, 2000)
`
`Wearable Digital Audio Player
`(www.design.philips.com)
`
`The record establishes that the term “wearable
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`
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`electronics” refers to small electronic devices, such as
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`applicant’s, that may be literally worn by the user. The
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`evidence also shows that the term “e-wear” essentially has
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`been used as an interchangeable abbreviated version of the
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`term “wearable electronics.” In view of this evidence, we
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`find that consumers would equate “e-wear” with “wearable
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`electronics.” Accordingly, we conclude that the term E-
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`WEAR sought to be registered is merely descriptive when
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`applied to digital audio players that may be worn on the
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`user’s body. The term immediately describes, without
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`conjecture or speculation, a significant characteristic or
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`feature of the goods, namely, that applicant’s digital
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`audio players are wearable electronic devices.
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`
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`Applicant has submitted numerous articles that make
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`reference to “e-wear” as a trademark for its goods.
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`Although these articles may have a bearing on acquired
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`distinctiveness (if any) of the term sought to be
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`10
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`Ser No. 76002076
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`registered, the evidence is not persuasive in showing that
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`the term is inherently distinctive.
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`We also note that some of the articles not
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`specifically cited in this decision refer to a type of
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`clothing that actually incorporates electronics into the
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`clothing fibers, and that such clothing has been referred
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`to as “e-wear.” We also readily appreciate that the letter
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`“e” has various meanings, and that the term “wear” often
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`refers to clothing (although, as shown above, “wear” has
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`been used in connection with goods other than clothing).
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`Such uses, however, do not compel a different result in
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`this case. As noted earlier, that a term may have other
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`meanings in different contexts is not controlling.
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`
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`Applicant’s contention that the term “wear” is not
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`descriptive, but rather is “playfully suggestive,” is not
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`persuasive. In this connection, applicant submitted third-
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`party registrations of marks that include the non-
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`disclaimed term “wear” for goods other than clothing. The
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`fact that the term “wear” has not been disclaimed in the
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`context of various non-clothing items is of no significance
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`herein. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
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`1564, 1566 (Fed. Cir. 2001) [“Even if some prior
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`registrations had some characteristics similar to
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`[applicant’s] application, the PTO’s allowance of such
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`11
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`Ser No. 76002076
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`prior registrations does not bind the board or this
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`court.”].
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`
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`We conclude that the term E-WEAR is merely descriptive
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`of wearable electronics, that is, the specific type of
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`product identified in the involved application: “portable
`
`audio products, namely, digital audio players that may be
`
`worn on various parts of the user’s body, such as the head,
`
`wrist, arm, neck or hair.”
`
`
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`Decision: The refusal to register is affirmed.
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`12