Wikipedia evidence granted limited admissibility by TTAB

In In re IP Carrier Consulting Group, the US Trademark Trial and Appeal Board (TTAB) has affirmed the refusal to register the marks IPPICS and IPPIPE for telecommunications access services featuring a device for accessing images and video via the Internet under Section 2(e)(1) of the Lanham Act. The decision was based on various sources of descriptiveness evidence, including the applicant's (IP Carrier Consulting Group) own website and evidence based on entries from collaborative online encyclopaedia Wikipedia. The TTAB took the opportunity to explain the admissibility of, and the weight to be accorded to, Wikipedia evidence.

In refusing registration at first instance, the examining attorney asserted that IPPICS "is understood to mean an internet protocol-based means" of accessing pictures, and that IPPIPE "is understood to mean an internet protocol-based connection to a communications network", both immediately describing the applicant's (IP Carrier Consulting Group) internet access services. Against both applications, the attorney cited evidence of the meaning of the term 'IP' in various publications, where it was defined as 'internet provider' or 'internet protocol'. These included the 'About Us' webpage from IP Carrier Consulting Group's website, which used 'IP' as an acronym in 'IP-based services', and other promotional use by IP Carrier Consulting Group.

With regard to the terms 'PICS' and 'PIPE', the examining attorney held the following:

• dictionary evidence showed 'pics' to be short for 'photographs' and 'motion pictures',
  
  
• website evidence showed descriptive use of 'pictures' for photographs; and
  
  
• numerous publications defined or used 'PIPE' as an asynchronous (one-way) connection to a network.

Thus, the examining attorney asserted that the components of the marks were merely descriptive, when used in connection with IP Carrier Consulting Group's telecommunications services, and did not create a new term with an incongruous meaning when combined.

IP Carrier Consulting Group argued that the marks were not descriptive because it required "a significant leap of imagination, thought and perception" to take the meaning of each mark to describe the respective services, based on evidence that 'IP' and 'PIPE' have multiple common meanings other than those that may be descriptive of the services. The evidence included an entry from Wikipedia, showing that the most common abbreviation for 'internet provider' is 'ISP', which prompted the TTAB to explain the inherent possibly unreliable nature of Wikipedia entries and state a rule of admissibility of such evidence. According to the TTAB, it must be subject to corroboration from other reliable sources and is admissible only where the non-offering party has an opportunity to submit rebuttal evidence, which had been the case here.

In reaching its decision, however, the TTAB noted that IP Carrier Consulting Group's analysis erroneously started with 'internet provider' and asked: what is the most common acronym, whereas the correct analysis "should start with the term at issue (IPPICS) and inquire whether the term described the high-speed transmission of images and video". The TTAB therefore began with an inquiry whether each mark describes a function or purpose of IP Carrier Consulting Group's identified services, and considered the evidence of meanings of the various terms making up the marks, placing heavy emphasis on the evidence of IP Carrier Consulting Group's own use.

Finding that 'IP' means 'internet provider' or 'internet protocol', the TTAB held that IPPICS "directly engenders the commercial impression or meaning of pictures transmitted through the Internet", and IPPIPE "means asynchronous internet communications protocol" and is merely descriptive of IP Carrier Consulting Group's services, concluding "[s]o long as any meaning of a word is descriptive, the word may be merely descriptive".

Thomas M Small, Birch Stewart Kolasch and Birch LLP, Santa Ynez