ActiveVideo Networks sought to register CLOUDTV for interactive, television content-based services offered by cable and satellite television providers to television customers.
The Patent and Trademark Office (“PTO”) Examining Attorney refused registration on the ground that the term is generic and, alternatively, that the mark is merely descriptive and has not acquired distinctiveness. On appeal, the Trademark and Trial Appeal Board (“Board”) confirmed the Examining Attorney’s refusal. The Board disagreed with the applicant’s attempts to demonstrate that “cloud” is an ambiguous term when considered in conjunction with its goods and services. In fact, the evidence showed the applicant repeatedly used the term “cloud” to describe its own goods and services.
The applicant also argued that the PTO has permitted numerous similar marks for computer software and related services to register. In response, the Board noted that rapid innovation in relation to online video streaming, interactive television and video-on-demand has led to quick adoption of terms, like cloud, by consumers. The Board noted that a term that was once distinctive, may become generic. The Board found the PTO met the burden of demonstrating by clear and convincing evidence that the relevant public perceive “CloudTV” to be a generic term for television provided through a video-on-demand service to consumers having screens connected to the Internet.
Despite the applicant’s assertion that “CloudTV” cannot be generic because the applicant coined the term, the Board found that “CloudTV” names the “central focus” or “key aspect” of the applicant’s goods and services, and thus, is generic. The Board also affirmed the alternative refusal that the mark is merely descriptive and has not acquired distinctiveness.
In re ActiveVideo Networks, Inc., Serial No. 77967395 (TTAB July 9, 2014) [Precedential].