The MARKETPRICE is right for Revenue Technologies

In the interesting decision of In re Revenue Technologies Corporation, a split Trademark Trial and Appeal Board (TTAB) panel has reversed a lower US Patent and Trademark Office (USPTO) ruling and allowed the registration of the term 'marketprice' as a service mark. The majority of the panel held that the term is suggestive rather than descriptive of the services offered by the applicant.

Revenue Technologies Corporation, a provider of revenue and price management software, applied for a US federal service mark registration for MARKETPRICE in relation to business consulting services in the fields of product and service pricing. During prosecution, the USPTO's examining attorney refused registration pursuant to Section 2(e)(1) of the Trademark Act on the grounds that the term 'marketprice' was merely descriptive of Revenue Technologies' recited services. Revenue Technologies appealed.

The TTAB reversed the examining attorney's decision and allowed the mark to proceed to the publication stage. The majority of the panel rejected the evidence supporting the examining attorney's finding that the mark was descriptive. The majority accepted Revenue Technologies' arguments and a White Paper (government report) submitted in support thereof, holding that the purpose of Revenue Technologies' services is not to arrive at the market price of a product or service but to "help [Revenue Technologies'] client enterprises [...] to implement dynamic, customized price management using e-commerce in business-to-business transactions" considering such factors as markets, customers, channels, and timing in combinations unique to each client company. The majority also agreed with Revenue Technologies' assessment that "the enterprise benefiting from [its] services will actually be ignoring any prevailing, readily ascertained, and publicly-known market price for merchandise [and] services".

The majority concluded that MARKETPRICE is suggestive rather than descriptive of Revenue Technologies' services since the "traditional concept of 'market price' does not convey information about this emerging area of price management in business-to-business dealings".

One TTAB panellist dissented from the majority decision. The panellist disagreed with the rejection of the examining attorney's supporting evidence and suggested that evidence in the form of articles originating from Revenue Technologies, apparently indicating the descriptive nature of MARKETPRICE for its services, should not be dismissed lightly.

Miika Fukuwa, Knobbe Martens Olson & Bear LLP, Irvine