BSH Home Appliances Corporation

Trademark Trial and Appeal Board

Mar 2, 2010

No. 77465647 (T.T.A.B. Mar. 2, 2010)

Mailed: 3/2/10

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re BSH Home Appliances Corporation
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Serial No. 77465647
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James E. Howard for BSH Home Appliance Corporation.

Hanno Rittner, Trademark Examining Attorney, Law Office 117
(Loretta C. Beck, Managing Attorney).
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Before Quinn, Holtzman and Ritchie, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

BSH Home Appliances Corporation filed, on May 5, 2008,
an intent-to-use application to register the mark COUNTDOWN
for goods identified, as amended, “electronic timers of
control panels sold as a component part of apparatus for
cooking, namely, cooktops.”
The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), on the ground that applicant’s mark, when
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser. No. 77465647
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applied to applicant’s goods, is merely descriptive
thereof.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
The examining attorney maintains that the term
“countdown” merely describes the function, purpose and
nature of applicant’s electronic cooktop timers that count
from a user-designated time down to zero. The examining
attorney points to a “countdown timer” feature of numerous
cooking appliances manufactured and sold by others. In
support of the refusal, the examining attorney introduced a
dictionary definition of “countdown”; a third-party patent
registration showing use of “countdown” in connection with
an “oven preheat countdown timer”; an excerpt of the
Office’s identification of goods manual showing an entry
for “countdown timer”; and excerpts of third-party websites
showing use of “countdown” in connection with timers for
cooking appliances, including cooktops of applicant and
others.
Applicant contends that its mark is only suggestive,
and that consumers “would undergo a mental pause and would
use some measure of imagination in order to grasp the
import of the mark COUNTDOWN in connection with the goods.”
(Brief, p. 2). The mental pause, applicant argues, is
Ser. No. 77465647
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because the term has more than one meaning; “does COUNTDOWN
connote a product or service having a constantly reducing
product life or duration, or does it connote a product or
service relating to the measurement of time?” (Brief, p.
3). According to applicant, the examining attorney has
“misconstrued the circumstances in which one judges whether
a mark is suggestive rather than descriptive – one does not
evaluate the impression of a consumer or potential consumer
viewing the mark on the product itself but, instead,
evaluates a consumer or potential consumer viewing the mark
alone.” (Brief, p. 3). Applicant further states that “the
mere fact that the term ‘countdown’ finds industry-wide
usage with electronic timers does not automatically lead to
the conclusion that a consumer such as a potential customer
would, upon viewing the term ‘countdown,’ automatically
without further reflection conclude that the term must
necessarily refer to an electronic timer.” (Reply Brief,
p. 5). Applicant concludes by stating that any doubts on
the issue of descriptiveness must be resolved in its favor.
In support of its position, applicant submitted three
third-party registrations (one issued on the Supplemental
Register) of marks that include the term “COUNTDOWN.”
A term is deemed to be merely descriptive of goods
within the meaning of Section 2(e)(1), if it forthwith
Ser. No. 77465647
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conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the
goods. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828 (TTAB 2007); and In re Abcor Development, 588
F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). A term need
not immediately convey an idea of each and every specific
feature of the applicant’s goods in order to be considered
merely descriptive; rather, it is sufficient that the term
describes one significant attribute, function or property
of the goods. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973).
Whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods for which
registration is sought, the context in which it is being
used on or in connection with the goods, and the possible
significance that the term would have to the average
purchaser of the goods because of the manner of its use.
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
Contrary to the gist of a portion of applicant’s arguments,
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
Ser. No. 77465647
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Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002). Further, the
fact that a term may have meanings other than the one the
Board is concerned with is not controlling on the question
of mere descriptiveness. In re Bright-Crest, Ltd., 204
USPQ at 593.
The term “countdown” is defined, in relevant part, as
“the backward counting in fixed time units from the
initiation of a project, as a rocket launching, with the
moment of firing designated as zero.” The Random House
Unabridged Dictionary (2006).
The record is replete with uses of “countdown” in
connection with timers as a feature of cooking appliances
(not to mention other appliances, such as laundry washers
and dryers, toasters and mixers). The following uses in
connection with cooking appliances are representative
examples:
Frigidaire
Full Gas Slide-in Range
Electric Clock/Countdown Timer
(www.kamonline.com)

Kleenmaid Cooktop
99 minute countdown timer with
automatic shut off
(www.productview.com)

St. George Cooktop
Four zone ceramic cooktop
Countdown timer
(www.windrowtas.com)

Ser. No. 77465647
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Shop for countdown timer appliance in
these Departments
Cooktops
(ww.bizrate.com)

Wolf cooktops come with...traditional
pan-sensing technology and lock mode
for your family safety, as well as the
new high power boost and countdown
timer features.
(www.appliancist.com)

The following two advertisements are for applicant’s
cooktops featuring a “countdown timer”:
This electric cooktop from Bosch
Appliances features...Countdown timer
allows you to pre-set the burners to
turn off. Multi-task without burning.
(www.sears.com)

COUNTDOWN Timer
The days of “slaving over a hot stove”
are long gone, thanks to this ingenious
function that allows you to pre-set a
cooking time for each individual
heating element. Now you can multi-
task in the kitchen, and the cooktop
will automatically shut off the
individual cooking elements when their
programmed time has expired.
(www.appleappliances.com)

The record includes a copy of Patent No. 5767488
(issued June 16, 1998) for “Oven preheat countdown timer”
owned by a third party. The patent reads in pertinent part
as follows:
The present invention relates to
household appliances, mainly ranges
having an oven and more particularly to
a [sic] oven having a preheat countdown
timer and decrementing display.
Ser. No. 77465647
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[A] need has arisen in the area of
thermal convection ovens to provide a
countdown timer that displays a preheat
time in a decrementing manner.

It is an advantage of the present
invention to provide a countdown timer
for displaying the preheat time in a
decrementing manner after the user
inputs the desired preheat temperature
setting...A further advantage of the
present invention is to provide a pre-
heating system for the oven that
displays a counting down of the time
until the oven is ready to be used at
the preset pre-heat temperature
selected by the user.

Also of record is evidence retrieved from an Internet
consumer chat forum on induction cooktops. Consumers refer
to goods of applicant’s type as “countdown timers” and
“shutoff timers.”
Lastly, the term “countdown timer” is an entry in the
Office’s U.S. Acceptable Identification of Goods and
Services Manual (2010), albeit in connection with a
specific use. (“Countdown timer(s) and alarms to remind a
person to take or give a medication(s) and/or to remind a
person to do a daily routine(s) incorporated into a
wristband.”).
Based on the commonly recognized and understood term
comprising the entirety of applicant’s mark, we find that
COUNTDOWN is merely descriptive of “electronic timers of
Ser. No. 77465647
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control panels sold as a component part of apparatus for
cooking, namely, cooktops.” The mark immediately informs
prospective customers that applicant’s timer component of
cooktops is a countdown timer, that is, a timer that counts
from a user-designated time down to zero. No imagination
or thought is required to discern this feature of
characteristic of applicant’s goods as identified.
Applicant’s evidence of three third-party
registrations of marks that include “COUNTDOWN” is entirely
nonpersuasive of a different result. The mark WEDDING TIME
COUNTDOWN CLOCK for clocks is registered on the
Supplemental Register with a disclaimer of “COUNTDOWN
CLOCK”; and the other two marks cover goods (and services)
far removed from timers for cooktops.
In any event, each case must be decided on its own
facts, and a mark that is merely descriptive should not be
registered on the Principal Register simply because similar
marks may appear on the register. In re Scholastic Testing
Service, Inc., 196 USPQ 517 (TTAB 1977). To state the
obvious, we are not bound by the prior actions of examining
attorneys. See 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
[applicant’s] application, the PTO’s allowance of such
Ser. No. 77465647
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prior registrations does not bind the board or this
court.”).
Decision: The refusal to register is affirmed.