Courts Rely on Internet Articles to Deny Trademark Application

In re DSS Environmental (Fed. Cir. 2004) (unpublished).

The USPTO refused to register DSS’s trademark DUALSAND on the grounds that the term is merely descriptive.

Under 15 USC 1052(e)(1), the PTO may refuse to register a mark if the mark, “when used on or in connection with the goods of the applicant,” is “merely descriptive” of the applicant’s goods. 

The Federal Circuit agreed with the PTO, concluding that the PTO’s decision was supported by substantial evidence.

Interestingly, the Appellate Panel supported the PTO’s reliance on articles from the Internet. 

DSS argues that the articles in the record lack credibility because their source was the Internet. However, the examining attorney was not relying on the articles for their accuracy, but merely to ascertain how the term “dual sand” is used in the context of water wastewater filtration. In making such a determination, the examining attorney may obtain evidence from “any competent source, such as dictionaries, newspapers, or surveys.” . . . The Internet articles in this case, including on-line copies of newspaper articles, fully satisfy that requirement.

Refusal to register mark affirmed.