The USPTO refused registration of the proposed mark DIGITAL VISUAL OBSERVER for software and hardware for managing, controlling, and tracking drones, including collision avoidance and object detection, finding the mark merely descriptive of the goods and services. Examining Attorney Megan Mischler contended that the mark describes features of the goods and services that perform the functions of a person who is a member of a drone crew tasked with visually monitoring a drone in flight. Applicant Skydio argued that because its drones monitor themselves, there is no "observer," and furthermore that the mark is incongruous and/or a double entendre. How do you think this came out? In re Skydio, Inc., Serial No. 88928113 (May 10, 2022) [not precedential] (Opinion by Judge Peter W. Cataldo).
Dictionary definitions and third-party webpages submitted by the Examining Attorney established that a "Visual Observer" is "a member of a drone crew tasked with maintaining visual line of sight with the drone during operation. The VISUAL OBSERVER serves as a second set of eyes, monitoring the drone in flight during operation by the remote pilot in command (PIC)." The Board found that DIGITAL VISUAL OBSERVER describes "an electronic, computer readable and controllable, or DIGITAL, version of an individual tasked with determining a drone's location and air traffic hazards, or VISUAL OBSERVER. with determining a drone's location and air traffic hazards, or VISUAL OBSERVER."
Applicant's computer hardware, software, drones and its services of providing software for observation, detection and collision avoidance perform, inter alia, the functions of a computer readable or DIGITAL version of a human VISUAL OBSERVER. The proposed mark DIGITAL VISUAL OBSERVER merely describes a feature or characteristic of, at least, Applicant's computer hardware, software, drones and the services of providing use of non-downloadable software, all used for maintaining the position of drones and avoiding collisions and other air traffic hazards.
Applicant Skydio argued that its goods and services use cameras and software that "allow the drone itself to monitor its own surroundings in order to automatically avoid collisions and detect objects." The Board was not impressed. "Applicant acknowledges that its goods and services allow drones to detect objects and avoid collisions. These are some of the functions performed by a human VISUAL OBSERVER."
The Board saw no incongruity in Sydio's proposed mark, nor did it perceive a double entendre: the mark "immediately describes computer hardware and software, either downloadable or available as a service, as well as drones, that feature the ability to monitor a drone in flight to fix its position and avoid collisions and other air traffic hazards."
And so, the Board affirmed the refusal.
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