Videndum Production Solutions, Inc. v. Core SWX, LLC

OCR transcription for search; preserved printed pages are authoritative

This Opinion is Not a
Precedent of the TTAB

Mailed: August 18, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

Videndum Production Solutions, Inc.

v.
Core SWX, LLC

Opposition Nos. 91287612 (parent) and 91287614

David M. Magee of Greenberg Traurig LLP, for Videndum Production Solutions,
Inc.

Steven C. Berlowitz, Jessica M. Moore, and Moish E. Peltz of Falcon Rappaport &
Berkman LLP, for Core SWX, LLC.
Before Goodman, Stanley, and Brock,

Administrative Trademark Judges.

Opinion by Stanley, Administrative Trademark Judge:

Core SWX, LLC (“Applicant”) seeks registration on the Principal Register of the
standard-character marks NATIVE DUAL VOLTAGE (with DUAL VOLTAGE
disclaimed) (Application Serial No. 97511849) and NATIVE DV (with DV disclaimed)

(Application Serial No. 97511858), both for “Battery packs; Battery packs for

Opposition Nos. 91287612 and 91287614
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cameras; Battery packs for video cameras; Battery packs for camera lighting; Battery
packs for production monitors; Auxiliary battery packs,” in International Class 9.1
Opposer Videndum Production Solutions, Inc. (“Opposer”) opposes registration of
Applicant’s proposed marks on the grounds that: (1) the marks are merely descriptive
of the identified goods under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1); and (2) the marks are deceptively misdescriptive under Section 2(e)(1).2
In its Amended Answer in both oppositions, Applicant denies the salient
allegations of the Notices of Opposition.3
These opposition proceedings were consolidated by the Board’s order of January
17, 2024, to be presented on the same record and briefs.4 The Board’s file has been
1 Application Serial Nos. 97511849 and 97511858 were both filed on July 20, 2022, under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a
bona fide intention to use the marks in commerce.
2 Notice of Opposition, 1 TTABVUE in both proceedings.
The TTABVUE citations refer to the Board’s electronic docket, with the first number
referring to the docket entry and the second number, if applicable, referring to the page
within the entry.
3 7 TTABVUE in both proceedings. Applicant also asserted three “affirmative defenses” in
both proceedings (lack of standing, failure to state a claim, and unclean hands). 7 TTABVUE
4 in both proceedings. “Lack of standing, now referred to as entitlement to a statutory cause
of action … is … not a true affirmative defense because the facts regarding standing … are
part of [a plaintiff's] case and must be affirmatively proved.” Empresa Cubana Del Tabaco v.
Gen. Cigar Co., No. 92025859, 2022 WL 17844056, at *2 n.14 (TTAB 2022) (quotation
omitted). Failure to state a claim is likewise not a true affirmative defense; it challenges the
sufficiency of the plaintiff’s pleading rather than stating an independent defense to a properly
pleaded claim. See Blackhorse et al. v. Pro Football, Inc., No. 92046185, 2011 WL 1886402,
at *6 (TTAB 2011); Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., No. 91110043,
2001 WL 1512024, at *6 n.7 (TTAB 2001). Unclean hands is a true affirmative defense, but
Applicant did not pursue it at trial and it is therefore waived. See Sabhnani v. Mirage
Brands, LLC, No. 92068086, 2021 WL 6072822, at *1 n.5 (TTAB 2021) (“Respondent’s ...
affirmative defenses ... [were] not pursued by Respondent in its brief and [thus] were ...
waived.”).
4 Consolidation Order entered separately in both proceedings at 8 TTABVUE.

Opposition Nos. 91287612 and 91287614
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maintained in Opposition No. 91287612 as the “parent case.” From this point on, all
references to the record will be to Opposition No. 91287612 unless otherwise
indicated.
The case is fully briefed.5 Opposer, as plaintiff in the consolidated proceedings,
bears the burden of proving its entitlement to a statutory cause of action and
substantive claim(s) by a preponderance of the evidence. See Hangzhou Mengku Tech.
Co., Ltd v. Shanghai Zhenglang Tech. Co., Ltd, No. 91272143, 2024 WL 5265081, at
*2 (TTAB 2024). For the reasons discussed below, we find that Opposer has
established its entitlement to a statutory cause of action and has shown that
Applicant’s proposed marks are merely descriptive of the identified goods under
Section 2(e)(1). We further find that Applicant has not established that its proposed
marks have acquired distinctiveness. Accordingly, we sustain the consolidated
oppositions.6
I. The Record
The record consists of the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the files of Applicant’s opposed applications. Before either party
5 Opposer’s brief appears at 37 TTABVUE, Applicant’s brief appears at 38 TTABVUE, and
Opposer’s reply brief appears at 39 TTABVUE.
6 As discussed below, Opposer has expressly abandoned its deceptive misdescriptiveness
claim. We therefore do not address it.

Opposition Nos. 91287612 and 91287614
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filed any trial evidence, the parties stipulated to the authenticity of certain discovery
materials,7 which the Board approved.8
During its trial period, Opposer submitted:
• Affidavit of David Pasko, Director of Engineering at Opposer (“Pasko
Affidavit”), with exhibits.9
• Opposer’s Notice of Reliance No. 1: Documents produced by Applicant during
discovery.10
• Opposer’s Notice of Reliance No. 2: Documents produced by Opposer during
discovery.11
• Opposer’s Notice of Reliance No. 3: Third-party technical publications
produced by Opposer during discovery.12
During its trial period, Applicant submitted:
• Applicant’s Notice of Reliance on Discovery Responses: Documents produced
by Applicant during discovery (“Applicant’s Notice of Reliance No. 1”).13
• Applicant’s Notice of Reliance on Discovery Responses: Opposer’s discovery
responses and documents produced by Opposer during discovery (“Applicant’s
Notice of Reliance No. 2”).14
7 Joint Stipulation, 12 TTABVUE 2. More specifically, the parties stipulated to “the
authenticity of their respective documentary materials produced in this matter, and those
documentary materials produced by the other party (with the only exception being that
Applicant does not stipulate to authenticity of VPS000020 (the Affidavit of Jared Cohn).” Id.
8 Board Order dated February 11, 2025, 18 TTABVUE.
9 14 TTABVUE. Opposer submitted a copy of the Pasko Affidavit without exhibits at 13
TTABVUE and a copy with exhibits at 14 TTABVUE. We have not considered the version at
13 TTABVUE.
10 Opposer’s Notice of Reliance (“NOR”) No. 1, 15 TTABVUE.
11 Opposer’s NOR No. 2, 16 TTABVUE.
12 Opposer’s NOR No. 3, 17 TTABVUE.
13 Applicant’s NOR No. 1, 34 TTABVUE.
14 Applicant’s NOR No. 2, 35 TTABVUE.

Opposition Nos. 91287612 and 91287614
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• Deposition Testimony of Andrew Hutton, Opposer’s Rule 30(b)(6) corporate
representative, with Errata Sheet and Exhibits A-E thereto (“Hutton
Deposition Transcript”).15
II. Preliminary Matters
A. Deceptive Misdescriptiveness
In its opening brief, Opposer did not address its pleaded claim of deceptive
misdescriptiveness, and in its reply brief, Opposer expressly stated that “it does not
pursue the deceptive misdescriptiveness ground pleaded in the Notices of Opposition,
and the Board need not address it further.”16 Opposer’s deceptive misdescriptiveness
claim is therefore waived or forfeited in both proceedings, and we give it no further
consideration.
B. Failure to Function
In its opening brief, Opposer argues that NATIVE DUAL VOLTAGE and NATIVE
DV “fail to function as trademarks.”17 Specifically, Opposer asks the Board to “refuse
registration because the record shows that NATIVE DUAL VOLTAGE and NATIVE
DV are used as informational matter conveying a key product feature—dual native-
voltage operation—rather than as source-identifying trademarks.”18 Applicant
objects, arguing that failure to function was not pleaded in the Notices of Opposition
and was raised for the first time in Opposer’s brief.19
15 Hutton Dep. Tr., 36 TTABVUE.
16 Opposer’s Reply Br., 39 TTABVUE 27.
17 Opposer’s Br. 37 TTABVUE 25-27.
18 Id. at 25.
19 Applicant’s Br., 38 TTABVUE 24-25.

Opposition Nos. 91287612 and 91287614
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We agree with Applicant that a failure-to-function claim was not properly pleaded
in these consolidated proceedings. The Notices of Opposition set forth two grounds:
mere descriptiveness and deceptive misdescriptiveness.20 While Paragraph 16 of each
Notice of Opposition states that “Applicant’s Mark does not function as a source
identifier or to distinguish Applicant’s Goods from those offered by others,” this
language is preceded by allegations expressly setting forth Opposer’s claim of mere
descriptiveness under Section 2(e)(1).21 Read in context, the allegation in Paragraph
16 on which Opposer relies flows from the descriptiveness allegations rather than
constituting an independently pleaded failure-to-function ground.22
Nor was failure to function tried by implied consent. Applicant objected to this
theory in its brief, and “[i]mplied consent to the trial of an unpleaded issue can be
found only where the non-offering party (1) raised no objection to the introduction of
evidence on the issue, and (2) was fairly apprised that the evidence was being offered
in support of the issue.” Hangzhou Mengku Tech. Co., 2024 WL 5265081, at *5; see
also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP)
§ 507.03(b) (2026). Because Applicant timely objected, implied consent is not present.
Accordingly, the failure-to-function theory is not before us, and we confine our
analysis to the properly pleaded and tried claim of mere descriptiveness.
20 1 TTABVUE in both proceedings.
21 Notice of Opposition at ¶16, 1 TTABVUE 5 in both proceedings.
22 “Failure to function” involves an analytical inquiry that is distinct from descriptiveness,
even though the evidentiary bases may overlap. See In re Eagle Crest Inc., No. 77114518,
2010 WL 3441109, at *2 (TTAB 2010).

Opposition Nos. 91287612 and 91287614
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C. Bebob Materials
Both parties rely heavily on materials from Bebob Factory GmbH (“Bebob”), a
third-party competitor.23 Certain Bebob user manuals and a technical paper titled
“WHY BEBOB B-MOUNT? About voltage, power — and virgin olive oil” were
produced by Opposer and submitted into evidence by both parties.24 Although both
parties rely on the Bebob materials, Applicant objects to the consideration of these
materials for “the truth of what has been printed” therein.25
Third-party materials such as the Bebob materials are hearsay when offered for
the truth of their contents. “Internet materials accompanied by the requisite URL
and date are admissible, but standing alone without accompanying testimony, they
constitute hearsay, and we consider such materials only for what they show on their
face, not the truth of their contents.” See, e.g., Hangzhou Mengku Tech. Co., 2024 WL
5265081, at *2. Opposer’s witness, Mr. Pasko, attaches the Bebob materials to his
affidavit, identifying them as “true and correct copies of the afore-mentioned Bebob
user manuals (‘User Manuals’), which User Manuals were produced by [Opposer] in
these Proceedings and are publicly available and published online.”26 He further
testifies that Bebob “used and uses the term ‘native’ together with the phrase ‘dual
23 See, e.g., Opposer’s Br., 37 TTABVUE 8-10, 15, 21, 23-25; Applicant’s Br., 38 TTABVUE 7,
12-15, 17-18, 22-23.
24 Appendix A to Pasko Aff., 14 TTABVUE 9-40; Opposer’s NOR 2, 16 TTABVUE 14-45 (same
documents attached to Pasko Affidavit); Applicant’s NOR No. 2, 35 TTABVUE 63-94 (same
documents attached to Pasko Affidavit).
25 Applicant’s Br., 38 TTABVUE 13.
26 Pasko Aff. at ¶ 14, id. at 6.

Opposition Nos. 91287612 and 91287614
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voltage’ to describe its battery products, including products marketed and sold in the
United States since at least July 2021[.]”27
Mr. Pasko’s testimony, however, does not provide a sufficient foundation for us to
consider the Bebob materials for the truth of the matters asserted therein. See
Hangzhou Mengku Tech. Co., 2024 WL 5265081, at *3. His only basis for
authenticating these documents is that he accessed them online; he does not establish
personal knowledge of Bebob’s operations or the accuracy of the statements contained
in the materials. Accordingly, we consider the Bebob materials for what they show on
their face − not for the truth of their contents. See Trademark Rule 2.122(e)(2), 37
C.F.R. § 2.122(e)(2); TBMP § 704.08(b). To be clear, the Bebob materials remain
probative of how the terms “native” and “dual voltage” are used in the marketplace −
that is, what they show on their face − even though we do not credit the truth of the
specific technical or historical claims made therein.
III. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes proceeding. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303
(Fed. Cir. 2020); Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1274
(Fed. Cir. 2014). A party in the position of plaintiff may oppose registration of a mark
when such opposition is within the zone of interests protected by the statute, and the
plaintiff has a reasonable belief in damage that is proximately caused by registration
of the mark. JNF LLC v. Harwood Int’l Inc., No. 92070634, 2022 WL 4379238, at *1
27 Pasko Aff. at ¶¶ 11, id. at 5.

Opposition Nos. 91287612 and 91287614
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(TTAB 2022) (citing Meenaxi Enter., Inc. v. Coca-Cola Co., 38 F.4th 1067, 1070 (Fed.
Cir. 2022)).
Where, as here, descriptiveness is the basis for the challenge, an opposer may
establish entitlement by showing that it sells the same or related goods and that the
opposer has an interest in using the term at issue descriptively in its business.
Hangzhou Mengku Tech. Co., 2024 WL 5265081, at *7; Univ. of Ky. v. 40-0, LLC, No.
91224310, 2021 WL 839189, at *6 (TTAB 2021). The opposer need not prove present,
specific use of the exact applied-for term; it is sufficient to show that Opposer “has a
present or prospective interest in using the term in its business.” Univ. of Ky., 2021
WL 839189, at *6 (emphasis added); see also De Walt, Inc. v. Magna Power Tool Corp.,
289 F.2d 656, 661 (CCPA 1961) (“[D]amage to an opposer or injury to a petitioner for
cancellation will be presumed or inferred when … the opposer or petitioner is one who
has a sufficient interest in using the descriptive term in its business.”).
Here, the record establishes that: (1) Opposer is a direct competitor of Applicant,
manufacturing and selling battery packs, chargers, and accessories for the cinema
and broadcast industry;28 (2) Opposer currently uses the term “native” descriptively
on its Anton/Bauer website to distinguish its batteries from “regulated” batteries;29
(3) Opposer has a reasonable belief that its ability to use “native dual voltage” and
related terminology descriptively is “key” to communicating product functionality and
28 Pasko Aff. at ¶¶ 5-6, 14 TTABVUE 3.
29 Opposer’s NOR No. 2, 16 TTABVUE at 11-13.

Opposition Nos. 91287612 and 91287614
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compatibility to purchasers;30 and (4) Opposer “is actively developing battery
products which are capable of operating and functioning to output one or more of at
least two different voltages” and “is actively developing equipment and electronics
[that] have ‘native dual functionality,’ in that they operate at one of two or more
distinct voltages or voltages within two set of ranges.”31
Applicant argues that Opposer lacks entitlement because: (1) Opposer does not
actually use the terms “Native Dual Voltage” or “Native DV,” rendering its interest
speculative; and (2) registration of Applicant’s marks would not prevent Opposer from
describing its products because the “fair use” doctrine would protect Opposer’s
descriptive use.32
As to the first argument, the standard for entitlement does not require present
use of the applied-for wording. Univ. of Ky., 2021 WL 839189, at *6. The record
establishes that Opposer uses “native” in the same descriptive context at issue −
contrasting native voltage with regulated voltage for professional cinema batteries.
That demonstrated use, together with Opposer’s status as a direct competitor, its
active development of dual-voltage products, and its reasonable belief that
registration would impede descriptive use, are more than sufficient to satisfy the
threshold for entitlement. Id.; see also Nature’s Way Prods. Inc. v. Nature’s Herbs Inc.,
No. 92016634, 1989 WL 277824, at *4 (“In the present case, petitioner has
30 See, e.g., Hutton Dep. at 52:15-20, 56:17-57:10, 60:6-61:11, 61:17-62:3, 36 TTABVUE 56,
60-61, 64-66.
31 Pasko Aff. at ¶¶ 6, 8, 14 TTABVUE 3-4.
32 Applicant’s Br., 38 TTABVUE 9-11.

Opposition Nos. 91287612 and 91287614
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demonstrated its standing by showing that it manufactures and sells products similar
to those recited in respondent’s registration and that, being a competitor of
respondent, it is in a position to use the designation sought to be cancelled in a
descriptive manner.”).
Applicant’s reliance on Nobelle.com, LLC v. Qwest Commc’ns Int’l, Inc., No.
92030454, 2003 WL 1789052 (TTAB 2003) for the proposition that Opposer’s interest
is too speculative, is misplaced.33 In Nobelle.com, the petitioner could not offer a
timeframe for bringing a relevant product to market and had no demonstrated
connection to the relevant industry. Id. at *3. Here, by contrast, Opposer is an
established competitor in the identical market segment, currently uses “native”
descriptively in connection with its own battery products, and is actively developing
battery products with dual-voltage output functionality.34 Nobelle.com is thus
distinguishable.
As to the second argument, we are not persuaded that the availability of the fair-
use defense eliminates Opposer’s reasonable belief in damage. Registration on the
Principal Register creates statutory presumptions of validity and exclusive rights. 15
U.S.C. § 1057(b). That fair use might be asserted as an affirmative defense in a future
infringement action does not negate the potential competitive harm flowing from
registration of a merely descriptive term. See KP Permanent Make-Up, Inc. v. Lasting
Impression I, Inc., 543 U.S. 111, 118-24 (2004).
33 Id. at 11.
34 Pasko Aff. at ¶¶ 6, 8-9, 14 TTABVUE 3-4.

Opposition Nos. 91287612 and 91287614
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We find that Opposer has established its entitlement to a statutory cause of action
to oppose registration of Applicant’s proposed marks.
IV. Mere Descriptiveness
A. Applicable Law
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register, absent acquired distinctiveness, of a mark that is merely descriptive of the
identified goods. 15 U.S.C. § 1052(e)(1). “‘A mark is merely descriptive if it
immediately conveys information concerning a feature, quality, or characteristic of
the goods or services for which registration is sought.’” Real Foods Pty Ltd. v. Frito-
Lay N. Am., Inc., 906 F.3d 965, 975 (Fed. Cir. 2018) (quoting In re N.C. Lottery, 866
F.3d 1363, 1367 (Fed. Cir. 2017)). A mark is suggestive, rather than merely
descriptive, if it “‘requires imagination, thought and perception to reach a conclusion
as to the nature of the goods[.]’” In re Fat Boys Water Sports LLC, No. 86490930, 2016
WL 3915986, at *5 (TTAB 2016) (quoting StonCor Grp., Inc. v. Specialty Coatings,
Inc., 759 F.3d 1327, 1332-33 (Fed. Cir. 2014)); see also In re Gyulay, 820 F.2d 1216,
1217 (Fed. Cir. 1987). Suggestive marks, unlike merely descriptive terms, are
inherently distinctive, and thus registrable on the Principal Register without proof of
acquired distinctiveness. See Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372
F.3d 1330, 1340 (Fed. Cir. 2004).
The determination of mere descriptiveness must be made “in relation to the
particular goods for which registration is sought, the context in which [the mark] is
being used, and the possible significance that the term would have to the average

Opposition Nos. 91287612 and 91287614
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purchaser of the goods because of the manner of its use or intended use.” In re
Chamber of Commerce of the U.S., 675 F.3d 1297, 1300 (Fed. Cir. 2012) (quotation
omitted). “The 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.” DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695
F.3d 1247, 1254 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc., No. 75709532, 2002
WL 992268, at *3 (TTAB 2002)). It is not necessary that the term describes each
feature of the goods or services, only that it describes a single ingredient, quality,
characteristic, function, feature, purpose or use of the goods or services. Chamber of
Commerce, 675 F.3d at 1300.
We must “consider the commercial impression of a mark as a whole[.]” Real
Foods, 906 F.3d at 974 (emphasis in italics in original). “‘Where a mark consists of
multiple words, the mere combination of descriptive words does not necessarily create
a non-descriptive word or phrase.’” In re Zuma Array Ltd., No. 79288888, 2022 WL
3282655, at *4 (TTAB 2022) (quoting In re Omniome, Inc., No. 87661190, 2019 WL
7596207, at *5 (TTAB 2019)). “[I]f each component retains its merely descriptive
significance in relation to the goods or services, the combination results in a composite
that is itself merely descriptive.” Omniome, 2019 WL 7596207, at *5. Only where the
combination of merely descriptive terms creates a unitary mark, or a mark with a
unique, incongruous, or otherwise nondescriptive meaning in relation to the goods or
services is the mark registrable as suggestive. See In re Oppedahl & Larson LLP, 373

Opposition Nos. 91287612 and 91287614
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F.3d 1171, 1174 (Fed. Cir. 2004) (citing In re Nat’l Data, 753 F.2d 1056, 1058 (Fed.
Cir. 1985)). Because Applicant has disclaimed “DUAL VOLTAGE” and “DV,” we note
that disclaimers do not remove disclaimed matter from the mark for purposes of
evaluating the mark as a whole; we must still consider the mark in its entirety while
recognizing that a disclaimer reflects the descriptive character of the disclaimed
portion. Nat’l Data, 753 F.2d at 1059.
Evidence of the public’s understanding of a term “may be obtained from any
competent source,” including the applicant’s own materials, websites, product
literature, third-party usage, and marketplace evidence. Real Foods, 906 F.3d at 974;
N.C. Lottery, 866 F.3d at 1368. Applicant’s own merely descriptive use of the term in
question is especially probative evidence of mere descriptiveness.35 See In re Fallon,
No. 86882668, 2020 WL 6255423, at *12 (TTAB 2020) (“the text used on [Applicant’s]
website is the most compelling evidence of the mere descriptiveness of Applicant’s
proposed mark”); In re Mecca Grade Growers, LLC, No. 86358219, 2018 WL 1314995,
at *11 (TTAB 2018) (quoting In re Gould Paper Corp., 834 F.2d 1017, 1019 (Fed. Cir.
1987)) (“an applicant’s own website or marketing materials may be probative, or even,
… ‘the most damaging evidence,’ in indicating how the relevant public perceives a
term”).
35 Although the involved applications were filed based on an intent to use under Trademark
Act Section 1(b) (see supra at note 1), both parties submitted evidence of Applicant’s actual
use of the proposed marks. Cf. In re Promo Ink, Ser. No. 76541018, 2006 WL 478994, at *2-3
(TTAB 2006) (examining attorney may introduce evidence that applicant’s own literature
supports descriptiveness of term despite the fact that application is based on intent-to-use
under Trademark Act Section 1(b)).

Opposition Nos. 91287612 and 91287614
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“The major reasons for not protecting [merely descriptive] marks are: (1) to
prevent the owner of a mark from inhibiting competition in the sale of particular
goods; and (2) to maintain freedom of the public to use the language involved, thus
avoiding the possibility of harassing infringement suits by the registrant against
others who use the mark when advertising or describing their own products.” In re
Abcor Dev. Corp., 588 F.2d 811, 813 (CCPA 1978) (citation omitted).
B. The Relevant Purchasers
Descriptiveness is determined from the perspective of a relevant consumer who is
familiar with the goods. See, e.g., In re Bayer AG, 488 F.3d 960, 964 (Fed. Cir. 2007)
(descriptiveness evaluated from perspective of “average purchaser of the goods”). We
therefore first consider who the relevant purchasers are. The parties agree, and we
find, that the relevant purchasers for Applicant’s goods are purchasers of battery
packs, including sophisticated professionals in the cinema and broadcast industry −
cinematographers, lighting technicians, camera assistants, equipment managers at
rental houses, and production companies − who evaluate battery packs based on
voltage compatibility and performance characteristics.36 In the descriptiveness
context, sophistication tends to support, rather than undercut, immediate
understanding of technical feature terminology; that is, technically knowledgeable
purchasers are more, not less, likely to immediately understand technical feature
terminology when they encounter it.37
36 Opposer’s Br., 37 TTABVUE 7-8, 13-14, 19-20; Applicant’s Br., 38 TTABVUE 6, 17-19.
37 Applicant argues that sophisticated purchasers are more likely to recognize brand names
and distinguish between product descriptions and trademarks, citing LVL XIII Brands, Inc.

Opposition Nos. 91287612 and 91287614
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C. Analysis of the Component Terms
1. “DUAL VOLTAGE” and “DV”
Applicant disclaimed “DUAL VOLTAGE” in Application Serial No. 97511849 and
“DV” in Application Serial No. 97511858.38 These disclaimers constitute concessions
that the disclaimed terms are descriptive when used in connection with the identified
goods. See, e.g., Zuma Array, 2022 WL 3282655, at *7 (applicant’s disclaimer of
“SMART” was a concession “that ‘smart’ is merely descriptive of electronic sensor
modules”); In re DNI Holdings Ltd., No. 76331011, 2005 WL 3492365, at *8 (TTAB
2005) (“[I]t has long been held that the disclaimer of a term constitutes an admission
of the merely descriptive nature of that term … at the time of the disclaimer.”).
The record independently confirms the descriptive significance of these terms.
“Dual Voltage.” The term “dual voltage” directly describes a core capability of the
identified goods: battery packs that operate at two voltage levels (e.g., 14V and 28V).
Applicant’s own product specifications identify this feature: “Native Dual Voltage, DC
11v-16.8v/DC 22v-33.6v.”39 Images for a representative product are below:
v. Louis Vuitton Malletier S.A., 209 F. Supp. 3d 612, 676 (S.D.N.Y. 2016), aff’d sub nom., LVL
XIII Brands, Inc. v. Louis Vuitton Malletier SA, 720 F. App’x 24 (2d Cir. 2017). See Applicant’s
Br., 38 TTABVUE 17-18. Applicant’s reliance on this case is misplaced. LVL XIII Brands
addresses the role of purchaser sophistication in the likelihood of confusion analysis,
where sophistication tends to reduce confusion. In the descriptiveness analysis, by
contrast, the relevant inquiry is whether purchasers would immediately understand the
mark’s meaning in relation to the goods − and technically sophisticated purchasers are more
likely to immediately recognize technical feature terminology than lay consumers would be.
Indeed, evidence Applicant relies upon to demonstrate purchaser sophistication — the reader
comments to a third-party article − shows purchasers evaluating battery options based on
technical specifications and performance characteristics. See Applicant’s NOR No. 1, 34
TTABVUE at 20-21.
38 See supra at p. 1.
39 Applicant’s Notice of Reliance No. 1, 34 TTABVUE 23-26.

Opposition Nos. 91287612 and 91287614
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40
41
Third-party battery manufacturers likewise use “dual voltage” descriptively to
identify the same feature. For example, Bebob identifies certain products as “Dual-
Native-Voltage 14,4V/28,8V [14.4V/28.8V].”42 Images for representative products are
below:
40 Id. at 23.
41 Id.
42 Appendix A to Pasko Aff., 14 TTABVUE 13-31.

Opposition Nos. 91287612 and 91287614

bebob

B90Cine

Dual-Native-Voltage 14,4V/28,8V - 86Wh

r geable Li-lon t Battery - 20A/400W
USER MANUAL

WE STRONGLY RECOMMEND THAT YOU READ THIS.
INSTRUCTION BEFORE USING YOUR BEBOB
B90HSCINE BATTERY! PLEASE KEEP THIS MANUAL
FOR FUTURE REFERENCE

Features

A high capacity, Dual-Native-Voltage high load battery, which is compact and lightweight
Direct fitting to a camera or device via B-Mount

Enabling flight carry-on luggage transportation with a capacity of 86Wh
DualNative-Voltage 14,4V/4s and 28,8V/8s

400W continuous power drain

20A continuous discharge current

Five-step LED power indicator (100% - 80% - 60% - 40% - 20%)

Full capacity status LED (green over 80%; yellow between 60% and 80%; red under 60%)
«Enhanced data communication (B-Mount protocol)

bebolb

B155Cine
Dual-Native-Voltage 14,4V/28,8V - 156Wh
rechargeable Li-lon stackable Battery 20A/400W

USER MANUAL

WE STRONGLY RECOMMEND THAT YOU READ THIS
INSTRUCTION BEFORE USING YOUR BEBOB
B155CINE BATTERY! PLEASE KEEP THIS MANUAL

Features
« Ahigh capacity, Dual-Native-Voltage high load battery, which is compact and lightweight
« Direct fitting to a camera or device via B-Mount
+ Enabling flight luggage transportation attached to devices with a capacity of 156Wh
« Dual-Native-Voltage 14,4V/4s and 28,8V/8s
« 400W continuous power drain
* 20A continuous discharge current
« Five-step LED power indicator (100% - 80% - 60% - 40% - 20%)
« Full capacity status LED (green over 80%; yellow between 60% and 80%: red under 60%)
«Enhanced data communication (B-Mount protocol)

43 Td. at 13.
44 Td. at 23.

- 18 -

43

44

Opposition Nos. 91287612 and 91287614
- 19 -
Similarly, PowerWorks, another third-party, displays “DUAL VOLTAGE 24/48V” in
a battery description:45
This evidence − from Applicant’s own materials and from third-party competitors
− demonstrates that “dual voltage” immediately conveys to the relevant purchaser
that the battery operates at two voltage levels. It is merely descriptive of a feature of
the identified goods.
“DV.” An initialism or an acronym is merely descriptive when it is a recognized
abbreviation for the goods or services in the application or is otherwise understood as
being “substantially synonymous” with the merely descriptive words it represents. In
re Thomas Nelson, Inc., No. 76681269, 2011 WL 481341, at *4 (TTAB 2011) (citing
Modern Optics, Inc. v. Univis Lens Co., 234 F.2d 504, 506 (CCPA 1956)); see also In
re BetaBatt Inc., No. 77036122, 2008 WL 5232795, at *4 (TTAB 2008) (holding DEC
substantially synonymous with merely descriptive term “direct energy conversion”
and thus merely descriptive of a type of batteries and battery related services).
Here, the record establishes that “DV” is understood by the relevant purchasers
as shorthand for “dual voltage.” Applicant’s disclaimer of “DV” during prosecution is
itself an acknowledgment of the term’s descriptive character. Mr. Hutton’s testimony
further confirms this understanding: “[DV is] an abbreviation that I was referring to
45 Opposer’s NOR No. 2, 16 TTABVUE 46.

Opposition Nos. 91287612 and 91287614
- 20 -
earlier of dual voltage. … I think DV has been used in wider market context for quite
some time in relation to power or batteries.”46 Accordingly, “DV” is merely descriptive
of the identified goods for the same reasons as “dual voltage.”
2. NATIVE
The central dispute is the impact of the word “NATIVE” when combined with the
concededly descriptive terms “DUAL VOLTAGE” and “DV.” Applicant contends that
“the word ‘NATIVE’ is an arbitrary, coined term that conveys no information to
consumers.”47 We disagree.
The record establishes that “native,” as used in the professional cinema battery
market, communicates that voltage output is produced through direct cell
configuration rather than through conversion circuitry (i.e., without a boost or buck
converter). This meaning is established by multiple competent sources.
Opposer’s witness testimony. Mr. Pasko testified that “‘Native Voltage’
describes batteries with a direct connection between cells, generating a specific
voltage output without additional circuitry manipulation.”48 Mr. Hutton testified that
“native” is used in the industry “to describe that it is a native voltage” and to “show
that the voltage being supplied hasn’t been manipulated with,” meaning “there is no
buck-boost technology inside the battery, which means it’s never boosted up or
dropped down from a different voltage.”49
46 Hutton Dep. Tr. at 64:10-18, 36 TTABVUE 68.
47 Applicant’s Br., 38 TTABVUE 12.
48 Pasko Aff. at ¶ 7, 14 TTABVUE 3. We note that Applicant chose not to cross-examine Mr.
Pasko on this testimony, and therefore his testimony stands unrebutted.
49 Hutton Dep. Tr. at 31:19-32:8; 66:4-23, 36 TTABVUE 35-36, 70.

Opposition Nos. 91287612 and 91287614
- 21 -
Opposer’s descriptive use of “native.” Opposer’s Anton/Bauer “Native VS
Regulated” webpage uses “native” as a technical descriptor contrasting with
“regulated” voltage. The webpage states: “26V batteries come in two varieties, ‘native’
and ‘regulated’. Native 26V batteries stack more lithium cells in a series than 14.4V
batteries. … A ‘regulated’ 26V battery is just a 14.4V battery with an internal boost
regulator to create the 26V output voltage.”50
Third-party use (Bebob). Bebob’s user manuals, dated July 2021, use “native”
in technical specification format.51 For example, the specification tables list: “Voltage
(native nominal voltage) 14,4V/4s and 28,8V/8s DC (native).”52 Bebob’s product
feature descriptions identify batteries as “Dual-Native-Voltage high load battery”
with “Dual-Native-Voltage 14,4V/4s and 28,8V/8s.”53 This usage in specification
tables and feature descriptions demonstrates that “native” communicates a technical
attribute to purchasers in the relevant market. Images from one of Bebob’s user
manuals is provided below; identical language is used across multiple Bebob
products:54
50 Opposer’s NOR No. 2, 16 TTABVUE 11.
51 As discussed above, we consider the Bebob materials for what they show on their face.
52 Appendix A to Pasko Aff., 14 TTABVUE 13, 18, 23.
53 Id. at 16, 21, 26.
54 Id. at 13, 16; see also, e.g., id. at 18, 21, 23, 26.

Opposition Nos. 91287612 and

91287614

Features

B90Cine

USER MANUAL

bebob

Dual-Native-Voltage 14,4V/28,8V - 86Wh
rechargeable Li-lon stackable Battery - 20A/400W

WE STRONGLY RECOMMEND THAT YOU READ THIS.
INSTRUCTION BEFORE USING YOUR BEBOB
B9OHSCINE BATTERY! PLEASE KEEP THIS MANUAL
FOR FUTURE REFERENCE

Ahigh capacity, Dual-Native-Voltage high load battery, which is compact and lightweight

Direct fitting to. a camera or device via B-Mount

Enabling flight carry-on luggage transportation with a capacity of 86Wh

Dual-Native-Voltage 14,4V/4s and 28,8V/8s
400W continuous power drain
20A continuous discharge current

Five-step LED power indicator (100% - 80% - 60% - 40% - 20%)
Full capacity status LED (green over 80%; yellow between 60% and 80%; red under 60%)

Enhanced data communication (B-Mount protocol)

Specifications

Model B90CineHS
Mount B-Mount
Energy/Capacity 86Wh

bebob

Voltage (native nominal voltage) 14,4V/4s and 28,8V/8s DC (native)

Max. Continuous Discharge Current 20,04

Continuous Power Drain 400W

Max. Charge/Output Voltage 16,8 V/33,6V DC

End Voltage (discharge cut-off) 10,0 V/20,0V DC

Cells Lithium-lon

Twist D-Tap 13,2V; 2,54

USB-C Port 5,0V; 1,04

Fuel Gauge 5-Step LED

Status Green: Full Capacity over 80%

Yellow: Full Capacity between 60 and 80%
Red: Full Capacity under 60%

Weight 0,62 kg
Dimensions (WxHxD) 94x144x47mm
Chargers Bebob B-Mount or Equivalent

Charging time (bebob BS2/BS4)

1 hour / 80% @5A/16,8V
apprx. 1,9 hours / 100% @5A/16,8V

Operating Temp. Range Charge: + 10°C ~ + 30°C recommended
Discharge:- 20°C ~ + 55°C
Storage:- 20°C ~ + 35°C (<85% RH )

Certification Conformity

Product Safety: IEC 62133-2
Transport Safety: UN38.3

22.

Opposition Nos. 91287612 and 91287614
- 23 -
Applicant’s own use. Most significantly, Applicant itself uses “native” in a
descriptive, explanatory manner. In email communications regarding Applicant’s
marketing materials, an Applicant employee explains:
All our Helix Max V, G and B packs are Native Dual
Voltage™. What this means is that packs are native 14.4v
packs (a parallel 4S battery cell arrangement) which when
connected to a Helix plate (or Alexa 35 B-mount), switch to
native 28.8v (a series 8S battery cell arrangement).
Remember, the key is the Helix Max packs are native
14.4v and then native 28.8v! That means no power loss,
no up-conversion and no issues relating to regulation
or additional heat.55
In another email, an Applicant employee explains: “Our Dual voltage B-mt,
Gmt/Vmt Max packs are native dual voltage. They switch from 14v to 28v, just how
ARRI designed the B-mount system.”56 This communication directly defines “native
dual voltage” as describing how the packs operate − they switch between voltage
levels natively, consistent with the ARRI B-mount protocol − rather than identifying
Applicant as the source. As noted above, an applicant’s own descriptive use is
especially probative of how purchasers will understand the term. See supra at p.14
(citing cases).
Applicant’s reliance on the Bebob “meaningless” statement. Applicant
places considerable emphasis on a single passage from Bebob’s technical paper
stating: “The term ‘native’ is completely meaningless and therefore not suitable as a
55 Opposer’s NOR No 1., 15 TTABVUE 5 (internal email concerning Applicant’s marketing of
Helix V, G, and B packs).
56 Id. at 7 (emphasis added).

Opposition Nos. 91287612 and 91287614
- 24 -
distinguishing feature.”57 This statement does not aid Applicant’s position for
multiple reasons.
First, as explained in our evidentiary ruling above, neither party submitted
testimony laying a foundation for the truth of Bebob’s assertions. We therefore do not
accept as true the editorial claim that “native” is “meaningless.”58
Second, and independently, even reading the Bebob paper on its face and in full
context, it does not support Applicant’s argument. The paper acknowledges that “the
term ‘native voltage’ was introduced for marketing purposes as a further
distinguishing feature of rechargeable batteries − meant as a contrast to ‘regulated’
voltage.”59 The paper then reasons that because all batteries are technically
unregulated power sources, the native/regulated distinction is not a reliable technical
differentiator.60 Bebob’s ultimate conclusion − that “native” is “not suitable as a
distinguishing feature” − is an argument that the term fails to differentiate one
product from another. In trademark terms, a term that does not distinguish one
producer’s goods from another’s because it describes a common product characteristic
is, by definition, merely descriptive. Bebob’s conclusion thus cuts against
registrability of the term “native” in connection with the relevant goods, not in favor
of it.
57 Applicant’s Br., 38 TTABVUE 7, 14, 17, 23 (citing Applicant’s NOR No. 2, 35 TTABVUE
90).
58 See supra at pp. 7-8.
59 Applicant’s NOR No. 2, 35 TTABVUE 90.
60 Id.

Opposition Nos. 91287612 and 91287614
- 25 -
Third, Bebob’s characterization of “native” as “meaningless” is contradicted by
Bebob’s own marketing materials. In the very same product line, Bebob’s user
manuals use “native nominal voltage” and “Dual-Native-Voltage” as technical
specifications in product feature descriptions and specification tables.61 We find that
Bebob’s use of the term in technical specifications is more probative of marketplace
understanding than Bebob’s editorial opinion about the term’s utility as a
“distinguishing feature.”
Fourth, Bebob’s own analogy reinforces our finding. Bebob compares “native” to
terms like “organic food, untreated cotton or handicraft,” stating that it “suggests that
‘native’ batteries have an advantage over ‘conventional’ batteries — just as native
(virgin) olive oils obtained by cold pressing are pure, unrefined and healthier.”62
Terms like “organic” as applied to food and “untreated” as applied to cotton are
examples of descriptive terms that communicate a product characteristic. See In re
Eden Foods, Inc., No. 74056033, 1992 WL 355505, at *4-5 (TTAB 1992) (DOUBLE
CERTIFIED ORGANIC merely descriptive of pasta). That Bebob analogizes “native”
to such terms reinforces, rather than undermines, the conclusion that “native”
communicates a product characteristic in the battery field.63
61 See, e.g., id. at 35 TTABVUE 67, 70, 72, 75, 77, 82, 85.
62 Id. at 90.
63 We also note that Mr. Hutton expressly disagreed with Bebob’s “meaningless”
characterization. Mr. Hutton testified: “there is a difference between a native voltage and a
regulated voltage and being able to distinguish that to the market and advise people why
something is a native voltage instead of a regulated voltage … is key information.” Hutton
Dep. Tr. at 114:19-115:9, 36 TTABVUE 118-19. This testimony is consistent with the
remainder of the record evidence − including Applicant’s own explanatory usage − showing

Opposition Nos. 91287612 and 91287614
- 26 -
Finally, Applicant’s own materials confirm that “native” is not “meaningless” in
the context of the identified goods. Applicant’s marketing materials assign a specific,
concrete meaning to “native” − explaining that packs are “native 14.4v” and “native
28.8v” and that they involve “no up-conversion.”64 Applicant cannot simultaneously
argue that “native” is meaningless and use the term to communicate a specific
technical message to purchasers.
Conclusion on “native.” The question before us is not whether “native”
describes a scientifically rigorous distinction, but whether it immediately conveys
information concerning a feature of the goods to relevant purchasers. The evidence
clearly establishes that it does. “Native,” as used in connection with the identified
goods and in the context of the relevant marketplace, communicates that voltage
output is achieved through direct cell configuration without conversion or regulation
circuitry. This is a feature of the goods that has immediate meaning to the relevant
purchasers, who select batteries based on voltage delivery method, compatibility, and
performance characteristics.
D. The Composite Marks as a Whole
Having determined that each component of the proposed marks is descriptive of
the identified goods, we must determine whether the combination of terms “conveys
any distinctive source-identifying impression contrary to the descriptiveness of the
individual parts.” Oppedahl & Larson, 373 F.3d at 1174-75.
that “native” carries a recognized meaning in this marketplace tied to how voltage is
produced and delivered.
64 Applicant’s NOR No. 1, 34 TTABVUE 7.

Opposition Nos. 91287612 and 91287614
- 27 -
1. NATIVE DUAL VOLTAGE
Combining “NATIVE” (describing how voltage is delivered − through cell
configuration without conversion circuitry) with “DUAL VOLTAGE” (describing
what is delivered − two voltage levels) yields a straightforward, additive
combination: a battery that natively delivers two voltage levels. The combination does
not create any incongruity, double meaning, or unitary impression different from the
sum of its parts. Each component retains its descriptive significance within the
composite.
Relying on In re Colonial Stores, Inc., 394 F.2d 549 (CCPA 1968), Applicant argues
that the composite creates a “distinctive commercial impression” and that the
addition of “NATIVE” transforms the disclaimed elements into a source identifier.65
We disagree. In Colonial Stores, the combination SUGAR & SPICE evoked the well-
known nursery rhyme “sugar and spice and everything nice” − an association having
nothing to do with describing bakery goods. Id. at 551-52. No comparable external
association exists for NATIVE DUAL VOLTAGE. The composite tells the relevant
purchaser precisely what Applicant’s own materials explain it means: that the
battery operates at two voltage levels and does so natively, without conversion
circuitry. The combination communicates nothing beyond the descriptive content of
its parts.
65 Applicant’s Br., 38 TTABVUE 20-21.

Opposition Nos. 91287612 and 91287614
- 28 -
This conclusion is strongly reinforced by Applicant’s own use. Applicant’s product
pages repeatedly present the composite in specification format: “Operational Voltage:
Native Dual Voltage, DC 11v-16.8v / DC 22v-33.6v.”66 For example:
67
68
66 Applicant’s NOR No. 1, 34 TTABVUE 23-27.
67 Applicant’s NOR No. 1, 34 TTABVUE 23
68 Id.

Opposition Nos. 91287612 and 91287614
- 29 -
69
70
This placement − in a specification field, alongside voltage ranges, dimensions,
weight, and load capacity − is the manner in which sellers communicate product
attributes to purchasers, not source identity. It is also the manner in which
purchasers compare specifications across different products, often from different
manufacturers.
Moreover, Applicant’s marketing materials repeatedly define the proposed marks’
meaning in engineering terms, a practice inconsistent with the use of arbitrary or
69 Id. at 24.
70 Id. at 24.

Opposition Nos. 91287612 and 91287614
- 30 -
suggestive marks. For example, Applicant’s marketing materials explain: “The Core
Helix Max V/B/G packs are Native Dual Voltage™, meaning they can operate as a
native 14v battery pack and has a native 28v battery pack.”71 The presence of this
explanatory language is evidence that the wording is perceived and used as feature
information, not as a brand name. Cf. In re European-Am. Bank & Trust Co., 1979
WL 24821, at *2 (TTAB 1979) (applicant’s own usage reinforced ordinary meaning of
phrase).
Applicant’s evidence that the marks appear with the ™ symbol and in prominent
headline positions does not alter our analysis. The use of the ™ symbol does not
transform a merely descriptive term into a protectable trademark. “The ‘mere intent
that a term function as a trademark is not enough in and of itself, any more than
attachment of the trademark symbol would be, to make a term a trademark.’” In re
Aerospace Optics, Inc., No. 76171288, 2006 WL 1087849, at *3 (TTAB 2006) (quoting
In re Manco Inc., No. 74020176, 1992 WL 368706, at *4 n.11 (TTAB 1992) (“Use of
the symbol ‘(trade mark),’ … does not make unregistrable matter a trademark.”)); see
also Roux Labs., Inc. v. Clairol Inc., 427 F.2d 823, 828-29 (CCPA 1970) (“The mere
fact that a combination of words or a slogan is adopted and used by a manufacturer
with the intent … that it identify its goods and distinguish them from those of
others—does not necessarily mean that the slogan accomplishes that purpose in
reality.”); In re Volvo Cars of N. Am. Inc., No. 74212578, 1998 WL 239298, at *7
(TTAB 1998) ( “[U]se of the notice indicating that DRIVE SAFELY is a trademark of
71 Id. at 7.

Opposition Nos. 91287612 and 91287614
- 31 -
applicant does not transform this unregistrable phrase into a trademark indicating
source or origin.”).
We pause to address an important analytical distinction raised by the parties’
arguments. A term is suggestive when it requires imagination to connect the term to
the goods. A term is merely descriptive when it directly conveys a feature of the goods
− even if that feature is technologically complex and unfamiliar to some purchasers.
The former requires a mental leap from the words to the product; the latter requires
only factual knowledge about how a particular technology works. NATIVE DUAL
VOLTAGE falls into the latter category. That Applicant must explain the underlying
engineering to some purchasers does not render the term suggestive; it merely
demonstrates that the described feature − native operation at two voltage levels − is
technologically complex. A term is no less descriptive because the feature it describes
is sophisticated.
This principle addresses Applicant’s reliance on Mr. Hutton’s testimony that
customers at trade shows asked him to explain what “Native Dual Voltage” and
“Native DV” mean.72 Applicant argues that a term purchasers do not immediately
understand cannot be merely descriptive.73 We are not persuaded. The legal standard
requires that the mark “immediately convey[] information concerning a feature,
quality, or characteristic” of the goods. Real Foods, 906 F.3d at 972. It does not require
that every individual purchaser possesses a technical background to fully understand
72 Applicant’s Br., 38 TTABVUE 21 (citing Hutton Dep. Tr. at 45:9-24, 36 TTABVUE 49).
73 Id.

Opposition Nos. 91287612 and 91287614
- 32 -
the feature being described without further explanation. A descriptive term may
describe a feature that is itself complex or unfamiliar to some segment of purchasers.
The relevant inquiry is whether the term conveys information about the goods − not
whether every purchaser fully comprehends the underlying technology. Here, a
purchaser encountering NATIVE DUAL VOLTAGE in connection with a battery pack
would immediately understand that the term conveys information about how the
battery delivers voltage, even if that purchaser seeks further explanation of the
precise engineering mechanism.
Finally, the record contains evidence of third-party use of substantially similar
terminology for similar goods, which further undermines any claim that the
composite creates a distinctive impression unique to Applicant. Bebob’s user manuals
describe its batteries as “Dual-Native-Voltage” batteries with “Dual-Native-Voltage
14,4V/4s and 28,8V/8s.”74 Mr. Hutton testified that he understands Bebob and ARRI
together “developed this protocol, this type of battery so that one battery could do two
native voltages.”75
Applicant contends that “Dual-Native-Voltage” (Bebob’s formulation of the
phrase) creates a different commercial impression than “NATIVE DUAL VOLTAGE”
due to different word order and hyphenation.76 We are not persuaded. A sophisticated
cinema battery professional who encounters “Dual-Native-Voltage” in a Bebob user
74 See, e.g., Appendix A to Pasko Aff., 14 TTABVUE 13, 18, 23.
75 Hutton Dep. Tr. at 104:9-18, 36 TTABVUE 108.
76 Applicant’s Br., 38 TTABVUE 22-23.

Opposition Nos. 91287612 and 91287614
- 33 -
manual and “Native Dual Voltage” in a Core SWX specification understands both to
communicate the same technical concept: a battery capable of operating at two
voltage levels through native cell configuration. The trivial differences in word order
and punctuation do not transform the same descriptive concept into distinct
commercial impressions capable of functioning as source identifiers.
More broadly, Applicant’s argument that Opposer has not shown any third party
using the identical marks “NATIVE DUAL VOLTAGE” or “NATIVE DV” in
commerce misapprehends the role of third-party use in a descriptiveness analysis.
Third-party use of identical or similar terminology is relevant as evidence of
marketplace understanding, but it is not a prerequisite to a finding of descriptiveness.
The controlling inquiry is whether the proposed mark immediately conveys
information about a feature of the goods − not whether others have used the identical
formulation. See In re Zuma Array Ltd., No. 79288888, 2022 WL 3282655, at *4
(TTAB 2022); In re Omniome, Inc., No. 87661190, 2019 WL 7596207, at *5 (TTAB
2019).
Here, even setting aside third-party use entirely, the record amply supports
descriptiveness based on Applicant’s own usage, the testimony of Opposer’s witnesses
regarding marketplace understanding, and the application prosecution disclaimers.
The third-party evidence provides additional corroboration, but our finding does not
depend on it. The relevant point is that the concept described by the terminology −
native operation at two voltage levels − is a technical feature, and multiple market
participants have used “native” and “dual voltage” in close combination to describe

Opposition Nos. 91287612 and 91287614
- 34 -
that feature. That no competitor has adopted Applicant’s precise word order does not
transform a descriptive composite into a distinctive one. See In re Sun Microsystems,
Inc., No. 75430946, 2001 WL 461279, at *4 (TTAB 2001) (“[T]he fact that applicant
may be the first and/or only entity using the phrase AGENTBEANS is not dispositive
where, as here, the term unequivocally projects a merely descriptive connotation.”);
In re Acuson, No. 426945, 1985 WL 72021, at *2 (TTAB 1985) (“A descriptive term
used first or even only by an applicant is not registrable as long as the relevant
purchasing public perceives … the term as describing the goods.”).
For these reasons, NATIVE DUAL VOLTAGE is merely descriptive of the
identified goods.
2. NATIVE DV
As discussed above, “DV” is recognized by the relevant purchasers as an
abbreviation for “Dual Voltage” − a conclusion confirmed by Applicant’s concession
(i.e., disclaimer) and by Mr. Hutton’s testimony.77 NATIVE DV immediately conveys
the same message about a feature of the goods as NATIVE DUAL VOLTAGE: a
battery that delivers two voltage levels through native cell configuration. For the
same reasons discussed above, the combination of these descriptive terms does not
create any incongruity or distinctive impression beyond the sum of its descriptive
parts, and NATIVE DV is therefore merely descriptive of the identified goods.
Applicant argues that Opposer’s own Rule 30(b)(6) witness, Mr. Hutton, was
uncertain whether NATIVE DV immediately describes a characteristic of the goods,
77 See supra at pp. 19-20.

Opposition Nos. 91287612 and 91287614
- 35 -
pointing to his testimony: “I’m not sure. I’d have to think about that a bit more… I
don’t know. I honestly don’t know.”78 While we note this testimony, we do not find it
dispositive. Mr. Hutton was responding to a legalistic formulation posed by counsel.
Elsewhere he consistently testified that NATIVE DV “means the same thing” as
NATIVE DUAL VOLTAGE,79 that it is “a slightly shorter version of Native Dual
Voltage,”80 and that when customers asked about it, he “explained that Native DV …
is just a shortened version of Native Dual Voltage which describes how the battery
operates, functions, et cetera.”81 Mr. Hutton also testified that Opposer never sought
to register the mark NATIVE DV because it is “a descriptive about how the battery
operates and works, which is key to advise customers and consumers.”82 Taking Mr.
Hutton’s testimony as a whole, his qualified response to a single question does not
overcome the consistent body of evidence establishing that NATIVE DV is understood
as descriptive shorthand for the same technical feature.
E. Conclusion on Descriptiveness
We have considered the marks in their entireties, in relation to the identified
goods, in the context of the marketplace in which they are encountered, and from the
perspective of the relevant purchasers. We find that purchasers who know that
Applicant’s goods are battery packs for cameras, lighting, and production equipment
78 Applicant’s Br., 38 TTABVUE 16 (citing Hutton Dep. Tr. at 48:25-49:9, 36 TTABVUE 52-
53).
79 Hutton Dep. Tr. at 46:18-47:3, 36 TTABVUE 50-51.
80 Id.
81 Hutton Dep. Tr. at 49:24-50:10, id. at 53-54.
82 Hutton Dep. Tr. at 52:8-20, id. at 56.

Opposition Nos. 91287612 and 91287614
- 36 -
will immediately understand both NATIVE DUAL VOLTAGE and NATIVE DV to
convey information about a significant feature of those goods − namely, that the
battery packs deliver two voltage levels (dual voltage) through cell configuration
without conversion circuitry (native). The combination of descriptive components
does not create any incongruity, double meaning, or distinctive commercial
impression beyond the straightforward aggregation of their individually descriptive
meanings. See, e.g., In re Omaha Nat’l Corp., 819 F.2d 1117, 1118-19 (Fed. Cir. 1987)
(FIRSTIER merely descriptive of banking services); Zuma Array, 2022 WL 3282655,
at *9 (SMART BEZEL merely descriptive of electronic devices); In re Petroglyph
Games, Inc., No. 78806413, 2009 WL 1759327, at *12 (TTAB 2009) (BATTLECAM
merely descriptive of computer game software).
Accordingly, Opposer has established by a preponderance of the evidence that
Applicant’s proposed marks NATIVE DUAL VOLTAGE and NATIVE DV are merely
descriptive of the identified goods within the meaning of Section 2(e)(1) of the
Trademark Act.
V. Acquired Distinctiveness
“Under Section 2(f) of the Trademark Act, matter that is merely descriptive under
Section 2(e)(1) may nonetheless be registered on the Principal Register if it ‘has
become distinctive of the applicant’s goods [or services] in commerce.”’ In re Virtual
Indep. Paralegals, LLC, No. 86947786, 2019 WL 1453034, at *11 (TTAB 2019)
(quoting 15 U.S.C. § 1052(f)). Applicant argues that if NATIVE DUAL VOLTAGE and

Opposition Nos. 91287612 and 91287614
- 37 -
NATIVE DV are found to be merely descriptive, the marks have nonetheless acquired
distinctiveness.83
“An applicant seeking registration of a mark under Section 2(f) bears the ultimate
burden of establishing acquired distinctiveness.” Id. at *12 (citing In re La. Fish Fry
Prods., Ltd., 797 F.3d 1332, 1335 (Fed. Cir. 2015)). Applicant’s burden is to prove
acquired distinctiveness by a preponderance of the evidence. In re GJ & AM, LLC,
No. 86858003, 2021 WL 2374670, at *17 (TTAB 2021).
The Federal Circuit has “long held that ‘the applicant’s burden of showing
acquired distinctiveness increases with the level of descriptiveness; a more
descriptive term requires more evidence of secondary meaning.”’ Royal Crown Cola
Co. v. Coca-Cola Co., 892 F.3d 1358, 1368 (Fed. Cir. 2018) (quoting In re
Steelbuilding.com, 415 F.3d 1293, 1300 (Fed. Cir. 2005)). As discussed at length in
our descriptiveness analysis and summarized here for purposes of calibrating
Applicant’s burden, we find that NATIVE DUAL VOLTAGE and NATIVE DV are
highly descriptive of the identified goods. Several factors support this conclusion.
First, “DUAL VOLTAGE” and “DV” were disclaimed during prosecution, confirming
that the primary substantive message of these terms is concededly descriptive.
Second, the remaining undisclaimed element, “NATIVE,” does not inject ambiguity
or require imagination to understand; rather, it further specifies how the dual-voltage
feature is delivered (through native cell configuration), adding descriptive precision
rather than distinctiveness. Third, Applicant uses the marks in technical
83 Applicant’s Br., 38 TTABVUE 21-23.

Opposition Nos. 91287612 and 91287614
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specification fields alongside voltage ranges and other product attributes,
demonstrating that the marks communicate product characteristics in the same
manner as other specification data. Fourth, Applicant’s marketing materials
repeatedly define the proposed marks’ meaning in engineering terms, a practice
inconsistent with the use of arbitrary or suggestive marks. And fifth, at least one
competitor uses substantially similar terminology (“Dual-Native-Voltage”) to
describe the same technical feature in the same professional marketplace for the
same goods. In short, the proposed marks communicate a core technical feature of the
identified goods using established vocabulary from the professional cinema battery
market, in a straightforward, additive manner. This places the marks at the high end
of the descriptiveness spectrum and correspondingly increases Applicant’s burden to
establish acquired distinctiveness.
“‘To show that a mark has acquired distinctiveness, an applicant must
demonstrate that the relevant public understands the primary significance of the
mark as identifying the source of a product or service rather than the product or
service itself.”’ Virtual Indep. Paralegals, 2019 WL 1453034, at *13 (quoting In re
Steelbuilding.com, 415 F.3d at 1297). In other words, the applicant must demonstrate
that “consumers have come to associate the mark with a single source.” In re MK
Diamond Prods., Inc., No. 86813875, 2020 WL 4346886, at *23 (TTAB 2020).
Acquired distinctiveness may be proven through both direct and circumstantial
evidence. Schlafly v. Saint Louis Brewery, LLC, 909 F.3d 420, 424 (Fed. Cir. 2018).
“Direct evidence includes actual testimony, declarations or surveys of consumers as

Opposition Nos. 91287612 and 91287614
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to their state of mind.” Kohler Co. v. Honda Giken Kogyo K.K., No. 91200146, 2017
WL 6547628, at *41 (TTAB 2017). “Circumstantial evidence is evidence from which
consumer association may be inferred, such as years of use, extensive amount of sales
and advertising, and any similar evidence showing wide exposure of the mark to
consumers.” Id. More specifically, we consider: (1) the association of the mark with a
particular source by actual purchasers (typically measured by customer surveys);
(2) the length, degree, and exclusivity of use; (3) the amount and manner of
advertising; (4) the amount of sales and number of customers; (5) intentional copying;
and (6) unsolicited media coverage. Converse, Inc. v. Int’l Trade Comm’n, 909 F.3d
1110, 1120 (Fed. Cir. 2018); In re SnoWizard, Inc., No. 87134847, 2018 WL 6923620,
at *4-5 & n.8 (TTAB 2018) (holding Converse factors applicable to Board proceedings);
see also Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1379 (Fed. Cir.
2012) (citing Steelbuilding.com, 415 F.3d at 1300). No single factor is determinative,
and each factor need not be considered. Steelbuilding.com, 415 F.3d at 1300. “Rather,
the determination examines all of the circumstances involving the use of the mark.”
Id. (citations omitted). We address the relevant factors below.
A. Direct Evidence of Consumer Perception
Applicant submitted no direct evidence that purchasers perceive NATIVE DUAL
VOLTAGE or NATIVE DV as source identifiers. Specifically, Applicant did not offer
any consumer surveys, customer declarations or testimony, dealer testimony, or
testimony from any witness. The complete absence of direct evidence is significant
given the heightened burden Applicant bears for these highly descriptive marks.

Opposition Nos. 91287612 and 91287614
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B. Length and Exclusivity of Use
Applicant claims in its brief that commercial use of its proposed marks began in
July 2022.84 This assertion, however, is not supported by any sworn testimony. The
applications were filed under Section 1(b) based on intent to use, and no statement of
use has been filed. As a result, Applicant has never made a verified statement to the
USPTO that it has used the proposed marks in commerce or identified specific dates
of first use.85 While the Board may consider evidence of actual use in an inter partes
proceeding regardless of the application’s filing basis, the absence of any verified
claim of use − or any testimony establishing the nature, continuity, and geographic
scope of that use − limits the weight we can accord to Applicant’s unverified assertion.
While we do not accept the specific date of July 2022 as established on this record,
marketing materials in the record indicate that Applicant has been promoting
products under these designations since at least mid-2022, and we accept that some
commercial activity occurred during that period. The probative value of this evidence
is, however, diminished by the absence of any quantitative data regarding the scope
of such use and by Applicant’s decision not to submit any testimony regarding its
commercial activities.
84 38 TTABVUE 7, 21-22.
85 Even if Applicant had filed an amendment to allege use, the Board could not rely on that
statement absent testimony. See Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2) (“The
allegation in an application for registration, or in a registration, of a date of use is not
evidence on behalf of the applicant or registrant; a date of use of a mark must be established
by competent evidence.”).

Opposition Nos. 91287612 and 91287614
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Even accepting arguendo that use commenced in mid-2022, the period of use
through the close of Applicant’s trial period is approximately three years. For highly
descriptive technical terminology, this is a relatively brief period from which to
establish acquired distinctiveness, particularly in the absence of supporting
quantitative evidence demonstrating the impact of that use on consumer perception.
See La. Fish Fry Prods., 797 F.3d at 1336-37 (Board acted within its discretion in
declining to credit applicant’s allegation of five years’ use given the highly descriptive
nature of the mark); Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., No.
92050879, 2013 WL 5407315, at *19 (TTAB 2013), aff’d mem., 565 F. App’x. 900 (Fed.
Cir. 2014) (“Given the highly descriptive nature of registrant’s mark, continuous use
alone since 1992 would not be sufficient to establish acquired distinctiveness.”).
Despite its relatively short period of use, Applicant emphasizes its alleged
“substantially exclusive” use to support its claim of acquired distinctiveness.86 As
discussed above, Bebob’s user manuals use “Dual-Native-Voltage” to describe similar
battery products.87 While Bebob’s use is not identical in word order or format to
Applicant’s proposed marks, it demonstrates that the same conceptual terminology
has been used by at least one other market participant to describe the same technical
feature.
Applicant argues that “Dual-Native-Voltage” (Bebob’s formulation of the phrase)
creates a different commercial impression than “NATIVE DUAL VOLTAGE” and
86 Applicant’s Br., 38 TTABVUE 22-23 (arguing there is no evidence of any third-party using
an “identical” mark).
87 See, e.g., Appendix A to Pasko Aff., 14 TTABVUE 13, 18, 23.

Opposition Nos. 91287612 and 91287614
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therefore does not defeat Applicant’s claimed substantially exclusive use.88 The
relevant inquiry for acquired distinctiveness is whether purchasers associate the
designation with a single source. See MK Diamond Prods., Inc., 2020 WL 4346886, at
*23. A purchaser encountering “Dual-Native-Voltage” in a Bebob specification and
“Native Dual Voltage” in Applicant’s specification would reasonably understand both
as describing the same technical concept − dual voltage output achieved through
native cell configuration. This overlap in meaning undermines any perception that
the terminology exclusively identifies Applicant as a source.
We need not resolve definitively whether Bebob’s use is sufficient to defeat
Applicant’s claim of substantially exclusive use, because even on the assumption most
favorable to Applicant, the length and nature of its use do not establish acquired
distinctiveness. Even assuming that Applicant has enjoyed exclusive use of the
proposed marks, such use for approximately three years − standing alone and without
corroborating evidence of consumer perception − is not sufficient to establish acquired
distinctiveness. See In Re Guaranteed Rate, Inc., No. 87054820, 2020 WL 4383820, at
*8 (TTAB 2020) (“We first find that standing alone, Applicant’s use since 2000 [i.e.,
use for more than 15 years] is not dispositive, even if we would consider Applicant’s
use to be substantially exclusive.”).
C. Advertising, Sales, and Market Penetration
The record contains marketing materials, emails, newsletters, press releases, and
third-party articles showing Applicant’s promotion of its products under the NATIVE
88 Applicant’s Br., 38 TTABVUE 22-23.

Opposition Nos. 91287612 and 91287614
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DUAL VOLTAGE and NATIVE DV designations.89 Applicant, however, submitted no
advertising expenditure data, no evidence of the reach or frequency of these
marketing efforts, no sales figures, no revenue data, no unit volume data, and no
evidence of market share – much less the marketplace context in which we could
assess this data. Without quantitative data, we cannot assess the commercial impact
of Applicant’s promotional activities, the scope of its commercial penetration, or the
extent to which its marketing efforts have reached the relevant purchasing public.
See Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1320 (Fed.
Cir. 2018) (contextual evidence needed “to arrive at a proper understanding of
whether customers would recognize the mark”); State Permits, Inc. v. Fieldvine, Inc.,
No. 92075095, 2024 WL 3825297, at *14 (TTAB 2024) (“In the absence of contextual
evidence, we cannot ascertain whether [Applicant’s] advertising ... [is] extraordinary
or little more than commonplace.”).
Moreover, the nature of Applicant’s advertising cuts against its position. As
discussed at length in our descriptiveness analysis, Applicant’s marketing materials
use the proposed marks in a descriptive, definitional manner − explaining “what this
means,” placing the terms in specification fields, and describing the engineering
principles behind the feature. This mode of use conditions the market to perceive the
wording as product information rather than source identification. The record contains
no evidence of advertising that instructs consumers to seek out the marks as brand
identifiers – for example, advertising that says “Look for NATIVE DUAL VOLTAGE
89 See, e.g., Applicant’s NOR No. 1, 34 TTABVUE 7-72.

Opposition Nos. 91287612 and 91287614
- 44 -
− only from Core SWX” or that otherwise trains consumers to associate the
terminology with a single source rather than a product feature. To the contrary,
Applicant’s marketing consistently educates the market that NATIVE DUAL
VOLTAGE and NATIVE DV describe how its battery technology works, reinforcing
the descriptive significance of the terms rather than building source association.
D. Intentional Copying and Unsolicited Media Coverage
The record contains no evidence that any competitor intentionally copied
Applicant’s proposed marks as source identifiers. To the extent Bebob uses similar
terminology, such use appears to be independent descriptive use of technical
vocabulary rather than copying of a trademark. Additionally, the record contains no
evidence of unsolicited media coverage recognizing NATIVE DUAL VOLTAGE or
NATIVE DV as brands associated with Applicant as a source. While third-party
articles discuss Applicant’s products, the record does not show that any such coverage
identifies the designations as Applicant’s trademarks as distinguished from
descriptions of a product feature. These factors are therefore neutral at best and do
not support Applicant’s Section 2(f) claim.
E. Applicant’s Descriptive Use and the ™ Symbol
Applicant places weight on its consistent use of the ™ symbol alongside the
proposed marks, arguing that this reflects trademark use that supports acquired
distinctiveness.90 While use of the ™ symbol reflects Applicant’s intent to treat the
designations as trademarks, the affixation of a ™ symbol in Applicant’s own
90 Applicant’s Br., 38 TTABVUE 22.

Opposition Nos. 91287612 and 91287614
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marketing materials has no probative value on the dispositive question: how
purchasers perceive the designation. Consumer perception cannot be established by
an applicant’s own assertion that it is treating a term as a trademark. See Aerospace
Optics, 2006 WL 1087849, at *3.
More fundamentally, we observe that Applicant’s own use of the proposed marks
− ™ symbol notwithstanding − is in a descriptive, explanatory manner throughout
its marketing materials, which is affirmatively inconsistent with acquired
distinctiveness. A seller that consistently presents a designation as a feature
description − explaining its technical content, placing it in specification fields, and
defining it for customers − conditions the marketplace to perceive the designation as
product information rather than a source identifier. Attaching the ™ symbol to a term
while simultaneously defining that term’s technical content for purchasers does not
build source association; it merely reflects Applicant’s aspiration that the term
function as a trademark while using it in a manner that undermines that aspiration.
This evidence does not merely fail to support acquired distinctiveness − it actively
undermines the claim by demonstrating that even Applicant itself uses the
designations to communicate product features rather than to identify source. A
purchaser who reads Applicant’s marketing materials − which explain that “Native
Dual Voltage” means the battery switches between two native voltage levels without
conversion or regulation − is being trained to understand the term as a feature
description, regardless of whether the ™ symbol appears alongside it. We afford the
presence of the ™ symbol no weight in the acquired distinctiveness analysis, and we

Opposition Nos. 91287612 and 91287614
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find that Applicant’s descriptive manner of use of the proposed marks weighs against
a finding of acquired distinctiveness.
F. Conclusion on Acquired Distinctiveness
On this record, Applicant has failed to carry its burden of establishing that the
primary significance of NATIVE DUAL VOLTAGE and NATIVE DV to the relevant
purchasing public is to identify Applicant as the source of the goods rather than to
describe a feature of the goods themselves.
Most significantly, the record contains no direct evidence whatsoever − no
consumer surveys, no customer declarations, no dealer testimony, no testimony from
any witness − that purchasers perceive these designations as source identifiers. For
highly descriptive marks, where the applicant’s burden is correspondingly heavy, the
complete absence of direct evidence is a substantial gap that circumstantial evidence
must fill. Here, the circumstantial evidence fails to do so. The record reflects a
relatively brief period of asserted use (approximately three years), at least one
competitor using substantially similar descriptive terminology, no quantitative
advertising or sales data from which to infer market penetration, no evidence of
intentional copying, no unsolicited media coverage recognizing the designations as
trademarks, and − most problematically − a consistent pattern of descriptive use by
Applicant itself that trains the market to perceive the designations as product feature
information rather than source identifiers.
Accordingly, Applicant has not established acquired distinctiveness under Section
2(f) of the Trademark Act.

Opposition Nos. 91287612 and 91287614
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VI. Summary
We have found that: (1) Opposer has established its entitlement to a statutory
cause of action; (2) the proposed marks NATIVE DUAL VOLTAGE and NATIVE DV
are merely descriptive of Applicant’s identified goods because they immediately
convey to the relevant purchasers that the battery packs operate at two voltage levels
through cell configuration without conversion circuitry; and (3) Applicant has not
established that the proposed marks have acquired distinctiveness under Section 2(f).
As a result, the proposed marks are ineligible for registration on the Principal
Register.
VII. Decision
The consolidated oppositions are sustained on the ground of mere descriptiveness
under Section 2(e)(1) of the Trademark Act. The applications for registration of
NATIVE DUAL VOLTAGE (Application Serial No. 97511849) and NATIVE DV
(Application Serial No. 97511858) are refused.