Tandem Computers Incorporated, Re

Tandem Computers Incorporated sought to register the trade marks NONSTOP V+ and NONSTOP-UX for computer goods and software. The examiner objected to registration under paragraphs 24(1)(c), (d), and (e) of the Act, arguing that NONSTOP was the predominant feature and directly described the goods as suitable for continuous operation, with the additional elements V+ and -UX being insufficient to render the marks distinctive as a whole. The applicant contended that the marks, viewed in their entirety, were distinctive.

The delegate was required to determine whether the marks NONSTOP V+ and NONSTOP-UX were registrable in either Part A or Part B of the Register. This involved considering whether the word NONSTOP was inherently distinctive or had acquired distinctiveness through use, and whether the additions of V+ and -UX, when combined with NONSTOP, created a distinctive mark. The delegate also had to consider previous decisions regarding the registrability of the word NONSTOP on its own.

The delegate reasoned that the word NONSTOP, by its ordinary dictionary meaning, was an apt description of the character or quality of computer goods, referring to their ability to operate continuously. Previous applications for the registration of NONSTOP had been refused on this basis, and the delegate found no persuasive new evidence or arguments to alter this conclusion. While the applicant argued that the additions of V+ and -UX, particularly when forming a pronounceable unit like NONSTOP-UX, rendered the marks distinctive as a whole, the delegate found these additions to be common practice in the computer industry for denoting model or version numbers and that they did not create a special or distinctive arrangement. The delegate also noted a lack of convincing evidence of factual distinctiveness for the combined marks, distinguishing the case from others where similar composite marks had been registered.

Ultimately, the delegate concluded that the marks NONSTOP V+ and NONSTOP-UX were not registrable in either Part A or Part B of the Register. The delegate found that the word NONSTOP was inherently non-distinctive and that the evidence of factual distinctiveness was insufficient to outweigh this lack of inherent distinctiveness, even when considering the marks as a whole. Consequently, the applications were refused.