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Time Impact Analysis

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Heather Spong
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Over the past few years there has been a debate as to where, when and by who Time Impact Analysis was developed.

Time Impact Analysis (TIA), a method of apportioning schedule delay between the various participants to a construction project, was developed by MDCSystems in the early 1980’s. A past Vice President of MDCSystems introduced the concept of Time Impact Analysis(TIA)in a paper presented at an American Association of Cost Engineers (AACE) conference on October 17-21, 1983. Since then, it is clear that TIA services were originally developed and provided by MDC. MDC has continued to provide this service with over a twenty-five year historical record of real life project management scheduling applications, change order evaluations, negotiations, Mediation, Arbitration, and in both United States State and Federal Court cases as well as many types of International dispute resolution forums. This makes TIA the most unbiased and reliable state of the art techniques for CPM schedule analysis for both prospective and retrospective analysis timeframes.

The world-wide acceptance, throughout all dispute forums, is based upon the history, accuracy and the unbiased fact intensive method of the TIA service. TIA can only be properly applied by experienced project management professionals, knowledgeable of both technical, schedule and cost issues for the project under examination.

Time Impact Analysis (TIA)® is Registered Trademark of IMDISI, Inc. and licensed to MDCSystems in the European Union and a Registered Service Mark in the United States.

Replies

Andrew Flowerdew
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Heather,

Can’t remember which thread I suggested it, awhile back now.

The SCL Protocol is used as a standard in the UK, but only if adopted. It has no standing however such as a "British Standard" or similar. It is however recognised quite widely, both in the UK and some other countries.

Bottom line, there is no universally accepted standard (I know of anyway) for any method of delay analysis, hence my thoughts.
Heather Spong
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Thank you for the article. It was a very nice overview of the different schedule analysis techniques for those of us who do not spend our days doing such analysis.

"A universally recognised method or standard would clear up some of the confusion between Windows analysis and TIA.
Even Windows analysis now has three names in the UK that I know of – Windows, snapshot and watersheds. Mainly down to one well known author who seems to like introducing new terms. Apparently we now have internal and external float due to the same person.

Although this is done in an attempt to better explain things, I believe it mainly serves to confuse and complicate and give the impression that time analysis is some mysterious and complicated art – which it isn’t."

I agree!

"I suggested PP users write a standard for TIA some while ago but the response was non existent."
Andrew,
In what forum/situation did you suggest a standard be written? I am asumming this is not what was published in the SCL protocol?
In the US, TIA is a standard published by MDC since we hold the servicemark. In the UK we hold the trademark for TIA but this does not seem to matter to those who use TIA and the process/methodology is not what it was defined as when trademarked.
This raises the issue of those who use terms like TIA, Terminal Float, End Float, External Float, etc. to do their research and educate themselves on what already exsists and not just assigning a name to something just because they think thay have just done it for the first time. This only creates confusion and a so-called "new" definition for something that already exists.

In regards to the SCL Protocol, is this the only standard in the UK by which professionals rely upon for delay analysis standards and techniques?
What about in other parts of the world where people have been doing TIA...What standards do you have to look to when doing schedule analysis?
Andrew Flowerdew
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If you want a useful but breif overview of delay analysis have a look at the following article:

http://www.driverconsult.com/articles/article_pdf_25.pdf

You could win a case of wine too if you enter the competition!!!!!!!!!!!!!
Andrew Flowerdew
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Heather,

Capital Project Management Inc is separate from MDC Systems, but MDC have another trademarked product called Capital Project Management System. Possibly designed to confuse and mislead!!!!!!

Where ever TIA was first carried out and by whom is irrelevant. A universally recognised method or standard would clear up some of the confusion between Windows analysis and TIA.

Even Windows analysis now has three names in the UK that I know of – Windows, snapshot and watersheds. Mainly down to one well known author who seems to like introducing new terms. Apparently we now have internal and external float due to the same person.

Although this is done in an attempt to better explain things, I believe it mainly serves to confuse and complicate and give the impression that time analysis is some mysterious and complicated art – which it isn’t.

I suggested PP users write a standard for TIA some while ago but the response was non existent. I’m guessing it will never happen, too many vested interests out there wanting to keep the industries methods cloaked in a veil of darkness.
KongChung Chan
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Isnt this akin to the Bismati rice affair?

When Bismati rice was grown for hundreds if not thousands of years in India. Some US company then patented that name Bismati, with some jazzy legal footwork.

Not much use to talk more on this Time Impact Analysis or TIA. That term and the concepts have been in use for years in the past by me and countless others, maybe before the company claiming it ever existed.

Just like the Indians in India growing, calling and eating Bismati rice even before USA was even conceived of.
Heather Spong
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Andrew,
I assure you that MDC did not pay off anyone. TIA is simply just a service mark in the US.

TIA as I have been told, was first run on a computer in the early 80s and the computer was the size of an entire room. Prior to that it was done by hand.

I whole heartedly agree with your statement: "Much more importantly, which would be of a great assistance to the world, is an approach to the method could be standardized so everyone at least sang from the same hymnsheet in a dispute. A worldwide accepted standard would be a great benefit."

There is no reason that schedule analysts around the world can not agree on terms and definitions to be used in the industry. We have been to repeated settlememt proceedings were analysts have not defined there methods and terms. This creates havoc for negotiators, mediators and the like.
If a company or an individual has trademarked a term, shouldn’t that term also have a standard definition attached to it?
This is the very reason why I started this topic.
If I say "Time Impact Analysis" was the methodology used to analyse the impact of a delay to someone it means one thing, but when I say it to another it may mean something completely different. This should not happen! It should not happen to any methodology that has been published and defined.

Capital Project Management, Inc. is NOT a part of and is NOT associated with MDC Systems. As I stated before, one of the original owners of CPMI was a former employee of MDC and when he left, he tried to take intellectual property with him. I assure you he had no involvement in TIA development. My boss is an engineer. As an engineer, like some of you know, he is "hard headed" and will never change his mind about them or their attempt to claim rights to something that they did not develop.
Heather Spong
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David,
Sorry for the absence from this topic. I had several urgent matters that required my attention.

I am not a Lawyer. I work as a Paralegal and Analyst for an engineering and architectural consulting firm that specializes in solving problems.
Heather Spong
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I find all of the previous posting to be very informative.

It is my understanding that MDC did NOT sue anyone. MDC did not pay anyone off. MDC did not purchase TIA from anyone. MDC simply applied for the trademarks in the USA and was then opposed by CPMS (a competitor and former employee of MDC). MDC was simply defending what was rightfully developed and publsihed by MDC. Millions of companies have gone throught the same process for trademarks.

The first use of Time Impact Analysis and the first publication refering to Time Impact Analysis that can be identified is in 1983 that we know of. Can any of you rebut this?
Andrew Flowerdew
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Trevor

It’s not the lawyers that take things to court - they only do as instructed. It’s the people asking them to take it to court that obviously think there’s some commercial advantage in putting a trade mark on TIA
David Bordoli
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Heather

I think this thread has just about gone as far as it can without your input.

If you are not willing to contribute then I must conclude my original observations about the purpose of your post were correct.

As a lawyer, I thought you would be willing to defend your position... seems not though.

David
Anoon Iimos
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Trevor,

(ahh! taking a deep breath)...

This is Africa (TIA), this is Real Time and i got nothing to do!

May I suggest that you proceed taking up Law courses!
Trevor Rabey
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OK, I read some of the paper because I had some time to waste in between doing real work.
Perhaps TIA might also mean, in a construction industry context of course, "Thanks In Advance" or "This Is Absurd". Others might suggest others.
Surely this is just a gigantic leg pull, merely the obvious consequences of lawyers actually taking themselves seriously?
I suppose these things have to be tested sometime, somewhere, but isn’t it just a big waste of time to take it to court? Does the legal system have nothing useful to do? Only in America... maybe.
Raphael Adeyemi, ...
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Please I would be most grateful if you could e mail me the PDF copy of the documents
David Bordoli
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If any one wants a more comfortable read of the documents that Andrew refers to in his postings they can be found at:

http://www.uspto.gov/web/offices/com/sol/foia/ttab/2eissues/2003/121819.pdf

and

http://www.oblon.com/files/news/281.pdf

or if you PM me with your email address I will send you PDF copies.

David
Andrew Flowerdew
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I looked at this a couple of years ago. Looks like the opposition was bought out by MDC, so they may have now managed to register TIA. Can’t be bothered to look it up as it’s of no real importance to anyone - just as long as people are aware of the history and the facts behind MDC’s claim, they can be there own judges. TIA (as we know it) was probably developed by many people all over the world as computers made CPM analysis a more practical option. Someone had to be the first though, but I’m sure it would be impossible to prove who was the very first person to impact a series of events on a CPM program to see what thier effect would be. Probably happened pre computers anyway and was done manually on a small scale somewhere. Much more importantly, which would be of great assistance to the world, is an approach to the method could be standardized so everyone at least sang from the same hymnsheet in a dispute. A worldwide accepted standard would be a great benefit. Given the protectionism shown, unlikely to be achieved though.
Andrew Flowerdew
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So does the continued use of a registered trademark symbol against TIA constitute, as claimed by Capital Project Management at the time:-

The use of the mark TIA by Applicant on
the services specified in Application
Serial No. 75/474,121 is likely to cause
confusion, mistake or deception such that
consumers will believe that Opposer’s use
(and the use by others in the construction
management trade) of Time Impact Analysis
techniques in their daily business are
actually techniques that belong to, or
originate from, the Applicant.

Capital Project Management now appear to be part of MDC Systems now so they’ve probably changed their mind!!!

But as long as you know the real story as per the case below, I guess you can make up your own minds.
David Bordoli
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Andrew

I admire you investigative skills or should I say I salute your indefatigability!

You have answered one of the questions I put to Heather, in that where has the debate about TIA been raging – obviously in the US courts!

I think it would be an opportune moment for Heather to make a response as to her claims or do you think her interests in participation in discussions related to claims analysis, schedule techniques, and construction law for my educational and professional development purposes have suddenly evaporated?

Ho hum – can you hear the sound of tumble weed blowing across this thread from the direction of MCDS!

David
Andrew Flowerdew
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Sorry to go on but this bit really is the best:

Mr. McCue adds, “[I]t is my testimony now and forever more that we do it right and other people are imitators and they do it wrong."

Now and forever more - maybe he would like to rethink that and come down to earth as he’s plainly somewhere on Pluto (sorry, that’s lost it designation as a planet hasn’t it - a common thread maybe) when making this statement.
Andrew Flowerdew
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it makes very interesting reading: In a letter dated March 13, 2002 from Mr. McCue to Harold Yoh, D&Z’s president, Mr. McCue essentially requested Mr. Yoh to confirm that rights to designations such as “TIA” and “Time Impact Analysis” were transferred to applicant. Mr. McCue wrote: “In fact, during the negotiations between myself, on behalf of [applicant], this decision. Opposition No. 121,819 39 and Barry Beuchner [the now deceased employee of D&Z], on behalf of the Day & Zimmerman conglomerate, it was made clear that [applicant] purchased all of the intellectual property of the claims unit, but so that there was no misconceptions or misinterpretations, the D&Z marks were specifically identified in the parties’ Asset Purchase Agreement as not being sold to [applicant] because this language in the agreement prepared by Day & Zimmerman conglomerate was so broad that it could be misinterpreted by third parties to include the D&Z marks.” Mr. McCue goes on to request Mr. Yoh to confirm that D&Z does not reserve any rights in “TIA” or “Time Impact Analysis.” Upon such confirmation, Mr. McCue writes that “we will gladly release the remaining funds and complete the payment for these assets.”
Andrew Flowerdew
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I like this bit of the post below:

Mr. McCue, states that “Iam aware of some people using the term time impact analysis infrequently because it is associated so closely with us that it is just marketing for MDC every time they use it.” Mr. McCue adds, “[I]t is my testimony now and forever more that we do it right and other people are imitators and they do it wrong. They use the name to bastardize the technique to make their case, make their claim.”

Comments David.
Andrew Flowerdew
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David,

You couldn’t send me the paper could you.

Copyright or registered trade mark is applicable (unless they’ve appealed and won) - does the below say that!!!!! And who did they buy it off?????????

We find that the testimony and evidence establishes
that the designation TIA is, at a minimum, merely
descriptive when used in connection with applicant’s
services. Given the interchangeability of “TIA” and
“time impact analysis,” the letters immediately and
directly convey information about applicant’s services,
that is, that the services involve time impact analysis.

Decision
The opposition is sustained, and registration to
applicant is refused.
Andrew Flowerdew
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I make no comment, the results speak for themselves.
Andrew Flowerdew
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Or this:Official Journal of the International Trademark Association

b. Terms Found Generic
TIA was found to be a generic designation for “investigation of
problems experienced on construction projects using a technique
that analyzes the effect of a particular event on schedulized
activities.”144 Petitioner’s two expert witnesses were found to
qualify as experts in the construction management field,
specifically with respect to claims analysis of time delays on
construction schedules. The Board did not consider them to be
experts in trademark law and any opinions related to the question
of law were given no weight. The discovery depositions of
applicant’s president, executive vice president and the chairman of
a subsidiary company introduced by opposer by notice of reliance145
were accepted as evidence. Because of their intimate knowledge of
applicant’s business, it was appropriate to impute their knowledge
to applicant. The fact that applicant did not call those individuals
as witnesses did not undermine the probative value of their
testimony during discovery depositions. Applicant was deemed to
have waived objection to evidence upon which it relied.
Applicant’s website, which was representative of other uses by
applicant, stated: “Time Impact Analysis . . . TIA is a courtaccepted
schedule analysis technique created by MDCSystems.”
Both parties specialized in analysis of the impact of time delays on
the schedules of construction projects. The category of services
identified in the application is clearly scheduling analysis services
144. Capital Project Management Inc. v. IMDISI Inc., 70 U.S.P.Q.2d 1172 (T.T.A.B.
2003).
145. 37 C.F.R. § 2.120(j).
Vol. 95 TMR 49
for construction projects. The relevant public is highly
sophisticated, is comparatively small in size and is involved in
some capacity with schedules and construction projects. Opposer
proved its claim of genericness by a preponderance of the evidence.
TIA is synonymous with “time impact analysis” and the relevant
public knows what TIA meant.
It did not follow from the fact that “time impact analysis” is
generic that the initial letters of the generic term are recognized as
being substantially synonymous. Whether the initials TIA should
also be deemed generic presented a separate but related issue. An
abbreviation or initialism of a generic name, that conveys to the
relevant public the original generic connotation of the abbreviated
name, is also generic. Acronyms and initialisms are often used
interchangeably with the full generic name and are recognized as
equivalents.146 There is a heavy burden on a trademark claimant
seeking to show an independent meaning of initials apart from the
descriptive words that are their source. Initials do not usually
differ significantly in their trademark role from the descriptive
words that they represent.147 There was testimony to the effect
that TIA was used interchangeably with “time impact analysis.”
The record showed an almost complete failure by applicant, in the
face of generic uses of TIA by others in the field, to police its
purported rights in the designation. The only uses of TIA in
printed materials were after the initial use of “Time Impact
Analysis,” but that did not warrant a finding that the initials
themselves were registrable. There was no doubt that the initials
TIA were perceived as the generic equivalent of “time impact
analysis.” TIA had fallen into the lexicon of the language utilized
in the field to name a particular type or kind of schedule analysis.
Different meanings of TIA in other fields were irrelevant. The
Board concluded that TIA had become so generally understood as
representing the generic term as to be accepted as substantially
synonymous.
Applicant’s counsel acknowledged that, if TIA were found to be
merely descriptive, but not generic, no registration would issue
based on the present application because there was no evidence or
claim of acquired distinctiveness under Section 2(f).148
Andrew Flowerdew
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I believe this might be of intertest!!!!!!!!!!


Hearing: Paper No. 13
March 5, 2003 TJQ
Mailed: July 30, 2003
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Capital Project Management, Inc.
v.
IMDISI, Inc.
_____
Opposition No. 121,819
to application Serial No. 75/474,121
filed on April 24, 1998
_____
Nicholas Guarente and Mark A. Garzia of the Law Offices
of Mark Garzia for Capital Project Management, Inc.
Camille M. Miller and Brian J. Urban of Cozen O’Connor
for IMDISI, Inc.
______
Before Hanak, Quinn and Rogers, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by IMDISI, Inc. to
register the designation TIA for “investigation of
problems experienced on construction projects using a
technique which analyzes the effect of a particular event
on schedulized activities.”1
1 Application Serial No. 75/474,121, filed April 24, 1998,
alleging first use anywhere and first use in commerce in October
THIS DECISION IS CITABLE
AS PRECEDENT OF THE
TTAB
Opposition No. 121,819
2
Registration has been opposed by Capital Project
Management, Inc. on the ground that the designation TIA,
when used in connection with applicant’s services, is
generic or merely descriptive thereof.2
Applicant, in its answer, denied the salient
allegations of the notice of opposition.
The record consists of the pleadings; the file of
the involved application; trial testimony, with related
exhibits, taken by each party; discovery depositions and
applicant’s responses to opposer’s discovery requests
1981. The application was originally filed by MDC Systems, Inc.
An assignment of the application to the above-named applicant
was recorded in the Assignment Branch records of the Office on
April 19, 2000 at reel 2069, frame 0798. In view thereof,
IMDISI, Inc. is substituted as the party defendant in this
proceeding. It should be noted, however, that references in
this decision to “applicant” mean MDC Systems, Inc.
2 To the extent that there is any confusion regarding the issues
in this case, it is clear that the issues are genericness and
mere descriptiveness under Section 2(e)(1) of the Trademark Act.
Applicant, in its brief, lists the above issues as well as a
third issue, namely likelihood of confusion under Section 2(d).
A review of the notice of opposition shows the following
allegation as paragraph 14:
The use of the mark TIA by Applicant on
the services specified in Application
Serial No. 75/474,121 is likely to cause
confusion, mistake or deception such that
consumers will believe that Opposer’s use
(and the use by others in the construction
management trade) of Time Impact Analysis
techniques in their daily business are
actually techniques that belong to, or
originate from, the Applicant.
It is clear from the trial in this case and the arguments in the
brief and at the oral hearing that opposer is not claiming any
proprietary rights in the designation TIA, and that the above
pleading is part of its claim under Section 2(e)(1).
Opposition No. 121,819
3
(interrogatories and requests for admissions), introduced
by way of opposer’s notices of reliance; and discovery
Opposition No. 121,819
4
depositions, and opposer’s responses to applicant’s
discovery requests (interrogatories and requests for
admissions) made of record by applicant’s notice of
reliance.3 The parties filed briefs, and both were
represented by counsel at an oral hearing before the
Board.
The record in this case is voluminous, with
thousands of pages of testimony and hundreds of pages of
exhibits. The deposition testimony is replete with
objections, most of them entirely unnecessary. It is
obvious, from a review of the record and the briefs, that
this litigation has been overly contentious. The clashes
between counsel contributed nothing in advancing the
merits of this case. Be that as it may, before turning
to the merits, we first direct our attention to some
evidentiary objections which applicant has maintained in
its brief.
3 Applicant also submitted with its notice of reliance documents
produced by opposer in response to applicant’s document
production requests. However, documents produced in response to
document production requests may not be made of record by way of
notice of reliance. See: Trademark Rule 2.120(j)(3)(ii). In
this instance, however, opposer essentially has treated the
documents to be of record and, accordingly, we deem them to be
stipulated into the record. (It is further noted that many of
the produced documents were also identified as exhibits during
testimony.) In sum, all of the involved documents have been
considered by the Board.
Opposition No. 121,819
5
The first objection involves applicant’s attempt to
strike the expert witness testimony of Thomas Driscoll
and Walter Cosinuke.4 According to applicant, these
witnesses
4 Messrs. Driscoll and Cosinuke also were offered as fact
witnesses by opposer.
Opposition No. 121,819
6
“were unqualified to render expert opinion as to the
issues of registrability of the TIA service mark, and
their testimony was not scientific, technical or
specialized, nor based on reliable principles and methods
to qualify as admissible expert testimony.” (brief, p.
18)
The record shows that Messrs. Driscoll and Cosinuke
have numerous professional accreditations,
accomplishments and overall experience in the
construction management field. Although neither witness
has ever testified in a trademark case, that fact hardly
diminishes their expert knowledge in the construction
management field wherein opposer claims the subject mark
to be generic or merely descriptive. Neither witness
received any compensation for his testimony.
Mr. Driscoll indicated that he has testified as an
expert in at least twenty construction claim cases at the
state and federal levels, and that he has appeared before
arbitration panels and a jury. In addition, Mr. Driscoll
is a member of the American Arbitration Association Panel
of Construction Arbitrators, and he has been an
arbitrator on 3-4 occasions. Over a period of forty
years, Mr. Driscoll has taught numerous classes and given
presentations on scheduling techniques, and has been
Opposition No. 121,819
7
involved in authoring parts of three books on the
subject. Mr. Driscoll has been involved in scheduling
analyses for numerous projects, including Denver
International Airport and the Chunnel.
Although Mr. Cosinuke is testifying in this case as
an expert for the first time, he is now retired after a
long career in the construction management field. During
his career, Mr. Cosinuke taught at almost 200 seminars
and workshops (exhibits show Mr. Cosinuke scheduled as a
speaker on the Critical Path Method5 dating back to the
early 1960’s), and was involved in construction schedule
analyses of projects such as the World Trade Center and
the Apollo moon program (Vehicle Assembly Building, and
launch complexes). A representative list shows that Mr.
Cosinuke and his company have been involved in many “mega
projects” (i.e., at least $1 billion).
Accordingly, we find that both individuals qualify
as experts in the construction management field,
specifically with respect to claims analysis of time
delays in construction schedules. In reading their
testimony, we have not, of course, considered them to be
experts in trademark law, and any opinion relating to the
ultimate question of law in this case has been given no
5 See explanation of the Critical Path Method, infra.
Opposition No. 121,819
8
weight. See, e.g., Harjo v. Pro-Football Inc., 50 USPQ2d
1705, 1718 (TTAB 1999); and Medtronic, Inc. v. Medical
Devices, Inc., 204 USPQ 317, 325 (TTAB 1979).
Applicant also has lodged numerous objections,
grounded on hearsay and lack of proper foundation, to
testimony about certain documents. Suffice it to say, in
reviewing the record, that we have accorded this
testimony whatever probative weight it merits.
Applicant further has objected to opposer’s
“imputing particular knowledge to Applicant through
discovery deposition testimony from officers and
directors of Applicant that were not produced to testify
on behalf of Applicant.” (brief, p. 21) After reviewing
the testimony of the three individuals called by
opposer’s notices of deposition, it is readily apparent
that Robert McCue (applicant’s president), James McKay
(applicant’s executive vice president) and William
Wheatley (chairman of a subsidiary of applicant),
officers and shareholders of applicant, all possess
personal knowledge of many aspects of applicant’s
business activities, including those relating to
applicant’s use of the designation TIA. Given their
intimate knowledge of applicant’s business, we find it
appropriate to impute their knowledge to applicant. That
Opposition No. 121,819
9
applicant did not call these individuals as witnesses
does not undermine the probative value of their testimony
during discovery depositions noticed and taken by
opposer. As the rules clearly allow for the introduction
at trial, by notice of reliance, of discovery depositions
a party takes of its adversary, there can be no question
that such depositions are an acceptable method for
gathering evidence for trial. See: Trademark Rule
2.120(j).
In sum, we have considered all of the testimony and
related exhibits, as well as all of the other evidence,
in reaching our decision, according each item whatever
probative value it merits. In doing so, we also note
that applicant, in some instances, has relied upon
certain evidence to which it has objected (see, for
example, applicant’s notice of reliance on the D’Onofrio
testimony with exhibits identified and introduced during
the deposition). In these instances, the objection is
deemed to have been waived.
We now turn to the merits of the opposition.
The Parties
Opposer is a consulting firm engaged in providing
claims analysis, expert witness services, construction
project management oversight services, and project
Opposition No. 121,819
10
scheduling services. In the words of Michael D’Onofrio,
opposer’s president, “[b]asically, we are consultants to
the construction industry.”
IMDISI, Inc. is a holding company for the
intellectual property rights of the original applicant,
MDC Systems, Inc. (hereinafter “MDC”). MDC, like
opposer, is engaged in the construction project and
management consulting field, offering, inter alia,
management of problem projects, preparation of contract
claims, and claims prevention, mitigation and resolution
services. In addition to the present application,
applicant filed an application to register the term TIME
IMPACT ANALYSIS, Serial No. 75/474,122. The applications
were filed on the same day and identify the services in
an identical manner, namely “investigation of problems
experienced on construction projects using a technique
which analyzes the effect of a particular event on
schedulized activities.”6
Applicant’s website (www.mdcsystems.com) shows the
following use, which is representative of other uses in
6 Application Serial No. 75/474,122 was amended to seek
registration on the Supplemental Register. In that application,
the Examining Attorney issued a final refusal grounded on
genericness and applicant filed an appeal. A check of Office
records shows that the appeal was dismissed due to applicant’s
failure to file an appeal brief, and the application was deemed
abandoned on June 10, 2003.
Opposition No. 121,819
11
applicant’s promotional materials: “Time Impact
Analysis. TIA is a court-accepted schedule analysis
technique created by MDCSystems. Coupled with the
application of legal principles, TIA provides a means for
equitably apportioning time-related construction
disputes.”7
Overview of Schedule Analysis
The parties both specialize in some of the same
areas, including analysis of the impact of time delays on
the schedules of construction projects. Construction
claim
7 The literature includes a claim that “Time Impact Analysis”
and “TIA” are service marks of applicant.
Opposition No. 121,819
12
disputes often involve allegations of impact and delay.
Time delays obviously can result in legal claims, and
there are a variety of methods to determine or evaluate
the impact of delays on a specific project. Every
construction project has a schedule:
Time is a critical element in the
construction process. Gaining and
maintaining control of the time factor
is essential if you want to achieve
the goal of completing projects on
time, within budget, and in accordance
with the plans, specifications, and
quality expected. To attain this
objective, it is necessary for all
parties involved in a project to have
a basic understanding of scheduling
and make a commitment to plan and
implement schedules effectively. Such
a commitment is vital in order to cope
with the complex factors of inflation
and escalation, lack of materials,
labor shortages, multiple prime
contracts, third-party relationships,
construction management concepts, and
frequent lack of controls.
In its practical use, a project
schedule is a warning device for
focusing attention on situations at
the stage where trouble is developing,
but still capable of being avoided
with prudent management, decisions,
and actions. In addition, the
schedule is a device for monitoring
progress, measuring progress, and,
therefore, can be used as a sword or
shield in presenting or refuting time
extensions and claims for extra cost.
Over the past three decades, the
importance of scheduling has increased
significantly...As a result, the use
of a schedule for legal purposes
Opposition No. 121,819
13
(sometimes [ex] post facto) has become
almost as important to the success of
a project as the schedule is for
planning and controlling the project
during project implementation.
Time Impact Analysis: A Key for Successful Proof of
Delay (Paper presented by Thomas J. Driscoll to the Fifth
Annual Construction Litigation Superconference, December
6, 1990).
It may become necessary to determine the cost of
time lost because of various types of delays encountered
during the life of a construction project, and that is
where schedules and their updating take on increased
importance:
A construction project by its
very nature is dynamic. Plans and
estimates, no matter how carefully
considered, are bound to change as a
result of unexpected events. Strikes,
unusually bad weather, sudden material
shortages, unforeseen subsurface
conditions, and change orders are a
few of the factors that may result in
a need to change the project schedule.
The project schedule must continually
reflect these changes or become
outdated and misleading. To be
successful, a schedule must be
accurate, and to be accurate, it must
be kept up-to-date and revised on a
regular basis. Indeed, the failure to
update the schedule can be fatal to
the contractor’s claim.
The periodic review of the
project schedule and daily progress is
termed updating. The object of
updating the schedule is to determine
Opposition No. 121,819
14
physical progress to date, identify
sequence revisions and duration
changes, and thus provide a complete
and accurate report of how well the
actual construction progress compares
with the established schedule. In
addition, its purpose is to determine
how all parties intended to continue
the work and meet the overall schedule
objective.
*****
Calculating the extent of delay
can best be accomplished through a
process called time impact analysis.
This procedure utilizes network
schedule techniques (fragnets) and an
analysis of the facts associated with
each delay to demonstrate the effect
of specific delays on the overall
project schedule.
Many project specifications
include time impact analysis
procedures...
When change orders, delays, or
problems do occur, a time impact
analysis should be prepared to
document the facts and circumstances
and to quantify the estimated delay
and/or impact on the project
schedule...
Network schedule techniques have
great utility in evaluating delay and
impact on a project. These techniques
permit simultaneous proof of both the
fact and the cause of delay.
Accordingly, a time impact analysis
can be an effective tool for
determining whether or not certain
work was delayed and if it had an
impact on the overall project.
Proving and Pricing Construction Claims (2d ed. 1996).
Opposition No. 121,819
15
Analysis of delays is directly related to a
technique called “Critical Path Method” (CPM) which is
used to keep a project schedule up to date by accurately
indicating actual performance and delays as they occur.
A continuously updated and revised CPM allows one to do
an accurate schedule analysis at any given point in the
construction project. The Critical Path Method is
basically a graphic presentation of the planned sequence
of activities which shows the interrelationships and
interdependencies of the elements comprising a
construction project. An administrative tribunal with
expertise in the field, the Corps of Engineers Board of
Contract Appeals, described in detail the Critical Path
Method as follows:
The CPM scheduling technique is one
which requires a breakdown of the
entire project into individual tasks
and an analysis of the number of days
required to perform each task. The
analysis is then programmed into a
computer, which produces a chart
showing the tasks and a line which
controls the completion of the overall
work. The line through the nodes, the
junction points for completion of
essential tasks, is known as the
critical path. In addition there are
numerous side paths for subordinate
tasks, which normally can be performed
without affecting the critical path.
However, these subordinate tasks, if
improperly scheduled or unduly delayed
in performance, can on occasions
Opposition No. 121,819
16
become critical and thus change the
critical path for the entire project.
The critical path method of scheduling
requires the logical analysis of all
the individual tasks entering into the
complete job and the periodic review
and re-analysis of progress during the
performance period. It is essential
that any changes in the work and the
time extensions due the contractor be
incorporated into the progress
analysis concurrently with the
performance of the changes, or
immediately after the delay, and thus
integrated into the periodic computer
runs to reflect the effect on the
critical path. Otherwise, the
critical path chart produced by the
computer will not reflect the current
status of work performed or the actual
progress being attained.
Continental Consolidated Corp. v. United States, ENG BCA
Nos. 2743, 2766, 67-2 BCA, PP 6624: 68-1 BCA PP 7003.8
As shown by the record, network analysis techniques,
such as Critical Path Method, were first introduced into
the construction field in the early 1960’s. Governments
now require network analyses on most, if not all, major
construction projects. The utilization of Critical Path
Method techniques to plan and schedule work has become
8 A copy of this decision was introduced into the record by
opposer. Generally, decisions of courts or other tribunals are
relied upon for legal principles, rather than for purposes of
establishing facts. Here, however, we find that the Board of
Contract Appeals has presented a succinct summary of factual
information found in materials or testimony otherwise properly
of record.
Opposition No. 121,819
17
the accepted standard in the construction field. Boards
of contract appeals and courts have shown a willingness
to utilize such techniques to identify delays and their
causes. Jon M. Wickwire, Stephen B. Hurlbut and Lance J.
Lerman, “Use of Critical Path Method Techniques in
Contract Claims: Issues and Developments 1974 to 1988,”
Public Contract Law Journal, (March 1989).
One of the techniques which has its foundation in
Critical Path Method principles is referred to as “time
impact analysis.” According to Mr. Driscoll, the
technique has “been around for ages” dating back to the
early 1960’s; the objective of such analysis is “to
pinpoint, isolate, and quantify any time impact
associated with a specific issue and determine its time
relationship to past or other current delays.”
Genericness Analysis
A mark is a generic name if it refers to the class
or category of goods and/or services on or in connection
with which it is used. In re Dial-A-Mattress Operating
Corp., 240 F.3d 1341, 57 USPQ2d 1807 (Fed. Cir. 2001),
citing H. Marvin Ginn Corp. v. International Association
of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed.
Cir. 1986). The test for determining whether a mark is
generic is its primary significance to the relevant
Opposition No. 121,819
18
public. Section 14(3) of the Act; In re American
Fertility Society, 188 F.3d 1341, 51 USPQ2d 1832 (Fed.
Cir. 1999); Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19
USPQ2d 1551 (Fed. Cir. 1991); and H. Marvin Ginn Corp. v.
International Association of Fire Chiefs, Inc., supra.
Evidence of the relevant public’s understanding of a term
may be obtained from any competent source, including
testimony, surveys, dictionaries, trade journals,
newspapers, and other publications. In re Northland
Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961
(Fed. Cir. 1985).
The Category of Services and the Relevant Public
In determining genericness, we must first identify
the category of services at issue. As noted above,
applicant’s services are identified as “investigation of
problems experienced on construction projects using a
technique which analyzes the effect of a particular event
on schedulized activities.” Applicant’s Internet website
indicates that its analysis “provides a means for
equitably apportioning time-related construction
disputes” and that analysis of scheduling documents
“allows assignment of causation and quantification of
delay.”
Opposition No. 121,819
19
In this case, the category or type of services
identified in the involved application is clear:
scheduling analysis services for construction projects.
Also clear is the relevant public for these
services. In this case, the relevant public is highly
sophisticated, and would include engineers, architects,
lawyers, construction owners, contractors and other
professionals in the construction management field who
purchase schedule analysis services. The relevant public
also would include courts, boards of contract appeals,
arbitrators and others in the field who read or are
concerned with schedule analysis reports. This relevant
public, comparatively small in size, would be involved in
some capacity with schedules in construction projects
(before, during or after). See: The Loglan Institute
Inc. v. The Logical Language Group Inc., 962 F.2d 1038,
22 USPQ2d 1531 (Fed. Cir. 1992)[limited size of relevant
group]. Oftentimes, the construction projects involve
major corporations and governmental agencies. Mr.
D’Onofrio testified that time impact analyses can cost
upwards of hundreds of thousands of dollars.
That brings us to the critical question in this
case, namely whether the designation “TIA” is understood
by the relevant public in the construction management
Opposition No. 121,819
20
field primarily to refer to the class of scheduling
analysis services involving time impact analysis.
We find that opposer, as the party making the charge
of genericness, has proved its claim by a preponderance
of the evidence. Martahus v. Video Duplication Services
Inc., 3 F.3d 417, 27 USPQ2d 1846, 1850 (Fed. Cir. 1993).
In the construction management field, “TIA” is synonymous
with “time impact analysis,” and the relevant public in
the field will know what “TIA” means.
Time Impact Analysis
We first examine the record with respect to uses of
the term “time impact analysis.” The record is replete
with such use in a generic manner to name a type or kind
of schedule analysis in construction projects.
O’Brien had been requested by the
Contracting Officer to prepare a time
impact analysis to determine how the
change proposals and extra work claims
had affected project completion...
(Appeal of NAB-Lord Associates, Postal
Service Board of Contract Appeals,
1984 PSBCA LEXIS 51, August 30, 1984)
Once construction is commenced, it may
be necessary to quantify the time
impact that may be caused by various
types of delays encountered during a
project. Calculating the extent of
delay can best be accomplished through
a process called time impact analysis.
(Manual of Standards of Practice,
Construction Management Association of
America (1986))
Opposition No. 121,819
21
“Time impact analysis” uses the
updated as-built schedule as the
baseline to evaluate any impact or
delay to the work.
(Construction Law Handbook (1999))
On March 9, 1993, Cogefar submitted a
time impact analysis to the FBOP
setting forth the events which had a
significant impact on the work to date
and a projection of how those events
would impact the contract completion
date.
(Appeal of Cogefar-Impresit U.S.A.,
Inc., U.S. Department of
Transportation Board of Contract
Appeals, 1997 DOT BCA LEXIS 8, August
27, 1997)
Once a project is started, it becomes
necessary to determine the amount of
time impact that may be caused by the
various types of delays encountered
during the life of the project. A
suggested method for calculating the
extent of delay is the use of updated
(as-built) critical path method (CPM)
schedules in conjunction with a
process called time impact
analysis...In recent decades, the
techniques of time impact analysis
have been used successfully on
projects to justify or refute time
delays.
(Jon M. Wickwire, Thomas J. Driscoll
and Stephen B. Hurlbut, Construction
Scheduling: Preparation, Liability,
and Claims, (1991))
The Time Impact Analysis technique is
most effective when required by the
contract as part of the scheduling
specification.
(Jon M. Wickwire, Stephen B. Hurlbut
and
Lance J. Lerman, “Use of Critical Path
Method Techniques in Contract Claims:
Issues and Developments 1974 to 1988”,
Opposition No. 121,819
22
Public Law Contract Journal, (March
1989))
Calculating the extent of delay can
best be accomplished through a process
called Time Impact Analysis, which is
a time estimating procedure that
utilizes networking techniques to
demonstrate the effect of specific
delays on the project schedule.
(Thomas J. Driscoll, The Project
Schedule as a Tool, Sword and Shield,
paper prepared for The Corps Of
Engineers Network Analysis for
Executives Seminar, May 1984)
As to such third-party uses of the term as shown
above, applicant’s president, Mr. McCue, states that “I
am aware of some people using the term time impact
analysis infrequently because it is associated so closely
with us that it is just marketing for MDC every time they
use it.” Mr. McCue adds, “[I]t is my testimony now and
forever more that we do it right and other people are
imitators and they do it wrong. They use the name to
bastardize the technique to make their case, make their
claim.” When asked to respond to other uses of “time
impact analysis” in the industry, applicant’s executive
vice president, Mr. McKay, said that “when a competitor
says he has performed a time impact analysis, he means
analysis of the time effect of some condition or activity
or event, and that is different and separate from its
Opposition No. 121,819
23
cost impact or some other impact. It doesn’t mean that
he has used the same methodology that we would use and
given it the same name.” While maintaining that the term
is a source identifier of services emanating from
applicant, Mr. McKay added that “[o]ther businesses in
our line of work do time impact analysis in the sense of
the effect upon project completion of an event or set of
circumstances. They characterize that as a time impact
but it is not Time Impact Analysis...I have seen other
types of analysis than what I just described submitted or
incorporated into reports prepared by other experts and
identified as time impact analysis but they used a
different methodology. They used the same name, they use
the same identify term [sic], but it is not Time Impact
Analysis as we developed the procedure and as we apply
it.”9
The term “Time Impact Analysis” clearly is generic
for the category of services listed in applicant’s
recitation. It names a type or kind of service, and the
9 The comments of Messrs. McCue and McKay are not persuasive.
Although applicant asserts that it “is not looking to obtain a
trademark registration for any methodologies used...but rather
for the name of [applicant’s] specialized services,” one cannot
avoid genericness because there are minor differences in the way
that one’s product or service differs from the norm, or from
those of others. That is to say, while applicant’s
“specialized” services may be slightly different from the
Opposition No. 121,819
24
relevant public, including sophisticated attorneys,
contractors and engineers in the construction field,
would perceive the term as generic. The fact that the
term often appears in print in initial capital letters,
that is, “Time Impact Analysis,” does not compel a
different result.
TIA
The fact that the term “time impact analysis” is
generic does not, however, end the inquiry in this case.
That is to say, it does not necessarily follow that the
initial letters of the generic term are recognized as
being substantially synonymous with “time impact
analysis.” Whether the initials for this generic term
should also be deemed generic presents a separate, yet
related issue. In determining this issue, we must
examine whether the letters “TIA” are generally
recognized and used in the construction field as an
accepted abbreviation for “time impact analysis.”
An abbreviation or initialism of a generic name
which still conveys to the relevant public the original
generic connotation of the abbreviated name is still
generic. Acronyms and initialisms are often used
interchangeably with the full generic name and recognized
services of competitors, the name of the category of applicant’s
Opposition No. 121,819
25
as equivalent. The predecessor to our primary reviewing
court had occasion to deal with this issue in the case of
Modern Optics, Inc. v. Univis Lens Co., 234 F.2d 504, 110
USPQ 293 (CCPA 1956). In that case, involving the
registration of the letters CV as a trademark for
ophthalmic lens blanks, the Court stated:
The letters “CV” are, of course, the
initial letters of the words
“continuous vision,” and it is
possible for initial letters to become
so associated with descriptive words
as to become descriptive themselves.
[citations omitted] It does not
follow, however, that all initials or
combinations of descriptive words are
ipso facto unregistrable. While each
case must be determined on the basis
of the particular facts involved, it
would seem that, as a general rule,
initials cannot be considered
descriptive unless they have become so
generally understood as representing
descriptive words as to be accepted as
substantially synonymous therewith.
Id. at 295. See also, e.g., Southwire Co. v. Kaiser
Aluminum 7 Chemical Corp., 196 USPQ 566 (TTAB 1977); and
Intel Corp. v. Radiation Inc., 184 USPQ 54 (TTAB 1974).
See generally: J.T. McCarthy, McCarthy on Trademarks and
Unfair Competition, §12:37 (4th ed. 2001).
services is still “time impact analysis.”
Opposition No. 121,819
26
We thus turn to examine the uses of “TIA” revealed
by the record. Numerous examples of such uses have been
introduced, and a representative sample appears below.
WHI’s current Time Impact Analysis
(TIA) concludes that cell partitions
are causing critical path delays to
Substantial Completion of the Project.
(Time Impact Analysis (TIA) re Cell
Partitions and Security Windows on
Federal Detention Center Brooklyn, New
York for Morganti/Trataros, Joint
Venture, November 6, 1996)
To assess the delays that caused and
otherwise contributed to the untimely
completion of the PAX, [opposer]
undertook a series of Time Impact
Analyses (TIA). The TIA is a schedule
analysis technique that allows the
assessment of delay in a manner that
closely proximates the actual progress
of the work...As of TIA #1, 6 May
1996, Angelini had lost 52 days along
the critical path of the
plan...Angelini’s contemporaneous
schedule update with data date 30 June
1996 is most current with the status
date of TIA #2...despite a one and a
half month delay to the critical path
of the project during the period of
TIA #3...
(Schedule Analysis re Mobility
Passenger Processing Center, Dover Air
Force Base (December 1999))
The schedule analysis for a particular
time period is referred to in this REA
as a Time Impact Analysis (TIA). The
TIAs were performed in chronological
order, at significant dates during
contract performance. Each TIA
includes an as-built schedule from the
status date forward based on AEL’s
contemporaneous planned schedule.
Each TIA schedule was compared with
Opposition No. 121,819
27
the summary as–planned schedule, and
with the previous TIA, in order to
determine controlling and
noncontrolling delays, and concurrency
among these delays.
(ECM Aircraft Electronic Combat
Trainer, AEL Industries, Inc.’s
Request for Equitable Adjustment, May
9, 1995)
Time Impact Analysis (TIA) is a
schedule analysis technique designed
to identify and quantify schedule
impacts contemporaneously through an
analysis of the status of the project
at certain critical points during the
course of construction.
(Schedule and Damages Analysis in
Construction Contract Disputes, CLE
International, (The Holloway
Consulting Group, LLC, September 1997)
at www.hollowayllc.com)
Project Management, CPM Schedule
Analysis, Cost Evaluation, TIA Time
Impact Analysis Claims & Negotiation
Preparation
(Jacobs Consultant Services website
accessed at www.firms.findlaw.com)
Time Impact Analysis shall be used by
the Contracting Officer in determining
if a time extension or reduction to
the contract milestone date(s) is
justified...Each TIA shall include...
(Department of the Navy, General
Requirements, Network Analysis
Schedules September 30, 2000))
Contractors shall be required to
provide an accurate Time Impact
Analysis (TIA) using the CPM schedule
to justify any time adjustment. It is
imperative that the CPM provision is
enforced for any contractor request by
requiring a TIA...the TIA shall be
contractor-submitted and engineeraccepted.
Opposition No. 121,819
28
(Construction Program Procedure
Bulletin, State of California
Department of Transportation (January
2001))
The Revised Quantum claim was based on
a Time Impact Analysis (“TIA”)...it
submitted its TIA on October 9, 1998,
to the CO, and “[t]hat TIA qualified
and revised the number of impacted
days the Brero was claiming against
the Respondent.”
(Brero Construction, Inc., U.S.
Department of Labor Board of Contract
Appeals (March 29, 2000))
The time impact analysis (TIA) was
developed to enable the parties to
assess a contractor’s right to receive
a time extension in a real-time manner
and to provide the ability for the
parties to resolve disputes prior to
an exhaustive after-the-fact analysis
reconstructed upon completion of the
project...The TIA is a chronological
and cumulative method to analyze
delay...The TIA has been widely
accepted and has significant merit.
(Jon M. Wickwire and Stuart Ockman,
Use of Critical Path Method on
Contract Claims--2000, The
Construction Lawyer, (October 1999))
Time Impact Analysis (TIA)—Approach—
Advantages—Disadvantages—Case Studies
CPM Scheduling: Changes and Dispute
Resolution
(www.fedpubseminars.com)
Each request for a time extension
based on claimed delays or changed
work was to be accompanied by a time
impact analysis (TIA), based upon the
date or dates when changes were issued
or delays began...With respect to the
TIAs, the contract explicitly
requires...
Opposition No. 121,819
29
(Board of Contract Appeals, General
Services Administration, SAE/Americon-
-Mid Atlantic, Inc. v. General
Services Administration, (October 23,
1998))
The record also includes excerpts from a manual and
a print-out version of a Power Point presentation for the
“Student’s Training Manual” in Advanced Schedule Training
prepared for the Naval Facilities Engineering Command in
July 2001. The manual includes the following statements:
“The Contractor shall submit a Time Impact Analysis (TIA)
illustrating the influence of each change or delay on the
Contract Completion Date or milestones...Each TIA shall
include a Fragmentary Network (fragnet) demonstrating how
the Contractor proposes to incorporate the impact into
the Project Schedule.” The Power Point presentation
indicates that “Time Impact Analysis” is a widely
recognized and accepted technique to demonstrate the
effects of a specific delay on a project schedule.
Beginning with the seventh slide of the presentation
until the conclusion, just the initialism “TIA” is used,
as for example, “TIAs work most effectively if regular
schedule updates are performed.”
Also of record is a purported expert report and
cover letter (D’Onofrio dep., Ex. No. 25). The report
was prepared in connection with other litigation, by an
Opposition No. 121,819
30
individual not associated with either of the two parties
herein. Jay Pandya asserts, in the cover letter to
opposer dated January 23, 2001, that he has been using
the terminology “Time Impact Analysis” and “TIA” since
1980. The September 27, 1995 report, prepared in
connection with claims submitted on a Lake Michigan
filtration plant, is replete with references to both
“Time Impact Analysis” and “TIA.”
The above uses are consistent: in many printed
publications, papers and the like, the first use of this
specific type of scheduling technique is identified by
the designation “Time Impact Analysis (TIA).” Subsequent
uses within the same article or paper are of “TIA.” Mr.
D’Onofrio testified that “[a]s I do with many technical
terms, the first time I write it, such as time impact
analysis, in order to not keep repeating time impact
analysis throughout the paper or report, I would put an
acronym for that, and the common acronym associated with
time impact analysis is TIA. So I would use it by
putting TIA in parenthesis after the first time I used
time impact analysis and throughout the rest of the
report I would use TIA in place of time impact analysis.
I also think that is how it is commonly used in the
industry...” Mr. D’Onofrio also stated the obvious, that
Opposition No. 121,819
31
it is just easier to write out “TIA” and say “TIA” in
oral presentations. He also indicated that he has
provided expert testimony in court cases and that the
reports “that I have written and others in our firm have
written, contain the term time impact analysis and
generally in those reports we have put the acronym TIA in
parentheses behind it and used that throughout the report
and also on the graphics.” Mr. Wheatley seconded this
view when he stated: “It is common practice in writing
articles to use acronyms or abbreviations for terms in
such a way that the term is just introduced with the
acronym in parenthesis after it and then the acronym is
used thereafter.” Further, Mr. D’Onofrio stated that “we
don’t distinguish between the long and the short
version.” See: In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 219 (CCPA 1978)[Rich, J., concurring,
noting that “the users of language have a universal habit
of shortening full names--from haste or laziness or just
economy of words.”].
The Seventh Circuit, in finding that “L.A.” was a
descriptive abbreviation for the descriptive words “low
alcohol,” made the following observation:
It is possible, although not likely,
that the public might become
acquainted with initials used in
connection with a product without ever
Opposition No. 121,819
32
being aware that the initials were
derived from, and stood for, a
descriptive phrase or generic name.
This is conceivable, though rather
improbable, because the connection
between the initials and the
descriptive words is in normal course
very likely to become known. The
process of identifying initials with
the set of descriptive words from
which they are derived is, after all,
usually fairly simple. Ordinarily, no
flight of imagination or keen logical
insight is required. There is a
natural assumption that initials do
generally stand for something. All
that needs to be done is to convert
the next-to-obvious to the obvious by
answering the inevitable question:
What do the initials stand for?
[citations omitted] As a rule, no
very extensive or complicated process
of education or indoctrination is
required to convey that initials stand
for descriptive words...[T]here is a
heavy burden of a trademark claimant
seeking to show an independent meaning
of initials apart from the descriptive
words which are their source...[A]s a
practical matter, initials do not
usually differ significantly in their
trademark role from the descriptive
words that they represent.
G. Heileman Brewing Co. v. Anheuser-Busch, Inc., 873 F.2d
985, 10 USPQ2d 1801, 1808-09 (7th Cir. 1989).
As noted above, we have accepted Mr. Driscoll as an
expert in schedule analysis in the construction
management field. When he was asked who coined the term
“Time Impact Analysis,” he responded “You’re probably
looking at him, but I’m not going to claim it.”
Opposition No. 121,819
33
Throughout his testimony, Mr. Driscoll reiterated his
view that “Time Impact Analysis” and “TIA” are widely
used industry terms--“[i]t is just so routine in the
industry.” Although Mr. Driscoll indicated that he uses
the full term “Time Impact Analysis” in his writings,
“[t]o me, TIA is Time Impact Analysis. I refer to it all
the time. If you were in my classes, you would know what
it is real quick.” At one point, Mr. Driscoll stated:
“To me TIA is Time Impact Analysis; they are
interchangeable as far as I am concerned.” Mr. Cosinuke,
with long-time experience in the field, weighed in with
the same view, and indicated that the letters “TIA”
connote “Time Impact Analysis.”
Mr. McCue, while maintaining that both designations
are proprietary to applicant, also responded “[p]ossibly”
to the question whether he considered “Time Impact
Analysis” and “TIA” to be interchangeable. When asked if
“TIA” ever meant “Time Impact Analysis,” he responded
“[i]t may.” He went on to indicate that “sometimes on
our schedule graphics we would use shorthand notations
when we are doing a series of analyses and when we may
put TIA in those cases rather than using the words Time
Impact Analysis #1 or #2.” Mr. McKay, another of
applicant’s officers, indicated that “TIA” stands for
Opposition No. 121,819
34
“Time Impact Analysis” when used “in the context of
schedule analysis” and when asked if the terms were
interchangeable, Mr. McKay answered “[I]n the same
context I would say so.” Mr. McKay also noted that “the
term TIA in the context of construction schedule analysis
frequently refers to Time Impact Analysis, but I would
not say that is exclusive.” When asked what other
meanings TIA might have in the field, Mr. McKay responded
“I have no idea.”
The record also shows an almost complete failure on
applicant’s part, in the face of generic uses of “TIA” by
others in the field, to police its purported rights in
the designation “TIA.” See, e.g., King-Seeley Thermos
Co. v. Aladdin Industries, Inc., 321 F.2d 577, 138 USPQ
349, 350-51 (2d Cir. 1963).
Based on the extensive record in this case, we
conclude that the initialism “TIA” has become so
generally understood as representing the generic term
“time impact analysis” as to be accepted as substantially
synonymous therewith.
In so finding, we recognize that the only uses of
“TIA” per se in printed materials are after an initial
use of “Time Impact Analysis (TIA),” but we do not
believe that this fact warrants a finding that the
Opposition No. 121,819
35
initials themselves are registrable. The size of the
relevant public herein is relatively small, owing to the
highly sophisticated nature of the services. Purchasers
of such services, for example, attorneys, contractors,
engineers and the like, already are quite knowledgeable
in what they are seeking. We have no doubt that “no
flight or imagination or keen logical insight is
required” of them in perceiving that the initials “TIA”
are the generic equivalent of the term “time impact
analysis.” See: G. Heileman Brewing Co. v. Anheuser-
Busch, Inc., supra at 1808. Likewise, boards of contract
appeals and others presented with “TIA” reports would
immediately understand the nature of the report. Given
the interchangeability of the letters and the term, the
initialism “TIA” will be perceived as the equivalent of
the generic term “time impact analysis.”
We conclude that “TIA” has been used by opposer and
others in or associated with the construction industry as
the generic initialism for the scheduling technique known
as “time impact analysis.” As such, it has fallen into
the lexicon of the language utilized in this field
serving to name a particular type or kind of schedule
analysis rather than a service emanating from a single
source of such services.
Opposition No. 121,819
36
Asset Purchase Agreement
In support of its argument against the claim of
genericness, applicant has relied upon an asset purchase
agreement wherein, according to applicant, it purchased
proprietary rights in the involved mark from a third
party. Applicant contends that competitors and customers
“attribute TIA to applicant, and no one else” and that
“MDC, through its lineage of companies both under the MDC
name and others, but through the same core of people and
corporate assets, is closely associated in the minds of
others within this specialty field by its TIA mark.”
Applicant claims to have obtained the trademark
rights to “TIA” from a predecessor in interest, namely
Day & Zimmerman International, Inc. (D&Z). According to
applicant, it purchased from D&Z all intellectual
property rights relating to D&Z’s construction claims
business with the exception of certain D&Z marks
identified in the asset purchase agreement between
applicant and D&Z. Mr. McCue, applicant’s president,
maintains that he and a deceased employee of D&Z are the
only persons who would be aware of the intentions of the
parties to the agreement. Applicant argues: “While D&Z
did not file any applications to federally register TIA
or other marks, the fact that D&Z did not object to any
Opposition No. 121,819
37
trademark applications filed by Applicant after Applicant
purchased the assets of MDC from D&Z, tells us that the
marks were indeed transferred as part of the intangible
intellectual property acquired by Applicant.” (brief, p.
15). Of record is a copy of the February 24, 1997 Asset
Purchase Agreement.10 The agreement refers to transfer of
the trade names “MDC” and “MDC Systems,” but the
agreement makes no mention of the designations “TIA” or
“Time Impact Analysis.” Paragraph 15.0 of the agreement
provides as follows:
ENTIRE AGREEMENT. This Agreement sets
forth the entire understanding of the
parties hereto with respect to the
transactions contemplated hereby. It
shall not be amended or modified
except by written instrument duly
executed by each of the parties
hereto. Any and all previous
agreements and understandings between
or among the parties regarding the
subject matter thereof, whether
written or oral, are superseded by
this Agreement.
Annex 1 to the agreement is captioned “Definitions,” and
one of the listed definitions is “Assigned Tradename.”
The term is defined as follows: “‘MDC’, ‘MDC Systems’,
logos including these names, and variants thereof. The
tradenames ‘Day’, ‘Day & Zimmerman’, ‘D&Z’, ‘Yoh’, logos
10 Although the agreement has been filed under seal, we see no
harm in disclosing the provisions specifically referred to in
Opposition No. 121,819
38
including these names and variants thereof are expressly
excluded from any assignment of tradenames, trademarks or
other intellectual property made under the Agreement.”
Also of record is the testimony of James Goodman,
president and general counsel of D&Z, who appeared
pursuant to subpoena. Although Mr. Goodman indicated
that he had no personal involvement in or knowledge of
the negotiations leading to the agreement, he reiterated
that the agreement made no mention of either “TIA” or
“Time Impact Analysis.” In an e-mail exchange with
applicant, introduced as an exhibit to his testimony, he
again stated that the subject designation “TIA” was not
included in the agreement. Mr. Goodman also testified
that his view was based on a review of the agreement and
other documents in a file relating to the agreement, and
a “discussion I had with the attorney in my department
who was directly involved in the transaction.”
In a letter dated March 13, 2002 from Mr. McCue to
Harold Yoh, D&Z’s president, Mr. McCue essentially
requested Mr. Yoh to confirm that rights to designations
such as “TIA” and “Time Impact Analysis” were transferred
to applicant. Mr. McCue wrote: “In fact, during the
negotiations between myself, on behalf of [applicant],
this decision.
Opposition No. 121,819
39
and Barry Beuchner [the now deceased employee of D&Z], on
behalf of the Day & Zimmerman conglomerate, it was made
clear that [applicant] purchased all of the intellectual
property of the claims unit, but so that there was no
misconceptions or misinterpretations, the D&Z marks were
specifically identified in the parties’ Asset Purchase
Agreement as not being sold to [applicant] because this
language in the agreement prepared by Day & Zimmerman
conglomerate was so broad that it could be misinterpreted
by third parties to include the D&Z marks.” Mr. McCue
goes on to request Mr. Yoh to confirm that D&Z does not
reserve any rights in “TIA” or “Time Impact Analysis.”
Upon such confirmation, Mr. McCue writes that “we will
gladly release the remaining funds and complete the
payment for these assets.”
What is somewhat unusual about Mr. McCue’s request
is that applicant’s payments pursuant to the agreement
already were past due (see D&Z’s letter dated February
15, 2002). Mr. Goodman responded in a letter dated March
28, 2003 which reads, in part, as follows:
The approach you have taken in your
letter constitutes extreme bad faith
on your part. You are in possession
of funds owed in connection with the
MDC asset purchase that are more than
one year overdue, and you are now
holding them hostage for a document
that you apparently intend to use to
Opposition No. 121,819
40
support your position in litigation
before the U.S. Patent and Trademark
Office’s Trademark Trial and Appeal
Board--litigation in which Day &
Zimmerman is not a party.
The Asset Purchase Agreement dated February 24, 1997
speaks for itself: it did not cover transfer of rights,
if any, to the designations “TIA” or “time impact
analysis.” The fact that any such rights were not
conveyed comes as no surprise inasmuch as it is apparent
that D&Z never claimed proprietary rights in either
designation. Employees (both former and current) of D&Z
who testified in this case indicate that D&Z never
claimed exclusive rights in the term. Even James McKay,
applicant’s executive vice president (and a former
employee of D&Z), when asked if D&Z ever claimed that
“time impact analysis” or “TIA” were proprietary terms,
replied “not to my knowledge.” There is neither
testimony nor a single exhibit which suggests that D&Z
ever claimed exclusive rights in “TIA” or “time impact
analysis,” and, thus, that D&Z was conveying any
proprietary rights in the designations.
We would point out that, in any event, even if D&Z
had claimed proprietary rights in “TIA,” and even if the
agreement had conveyed such purported rights to
applicant, this would not be dispositive or even
Opposition No. 121,819
41
particularly probative evidence on the genericness issue.
Whatever the intention of applicant and the assignee may
have been regarding whether “TIA” is a trademark, that
fact simply does control our analysis. We must assess
the meaning of “TIA” to the relevant public, regardless
of how D&Z and applicant may have treated “TIA” in their
dealings with each other.
Additional Arguments
Applicant’s recent registration of the mark TIME IN
ACTION for “consulting services in the field of
construction management; arbitration, alternative dispute
resolution and litigation support services; consulting
services in the field of arbitration, alternative dispute
resolution and litigation support services; consulting
services in the field of construction project problem
solutions which analyzes the effect of a particular event
on scheduled activities”11 is not persuasive of a
different result. Applicant essentially argues that the
designation “TIA” may also be an initialism for this
mark.
A few comments are in order. First, the underlying
application was not filed until seven months after
11 Application Serial No. 76/295,830, filed August 6, 2001,
alleging a bona fide intention to use the mark in commerce. The
Opposition No. 121,819
42
commencement of this proceeding. When Mr. McKay was
asked in October 2001 “What is Time in Action?”, he
responded: “It sounds to me like some sort of procedure
or process; I don’t know, I’m not familiar with the
term.” Simply put, it is not likely that prospective
purchasers would perceive “TIA” as an initialism for TIME
IN ACTION rather than “time impact analysis.” Given the
particular circumstances and timing of the filing, it is
disingenuous to suggest otherwise.
Applicant argues that the letters “TIA” have other
meanings in other fields, as for example, “transient
ischemic attack” in the medical field. Suffice it to
say, the issue must be determined in the context of the
specific field in which applicant’s services are
rendered. These other meanings are irrelevant when
determining the genericness of the letters when used in
connection with applicant’s specific services. When Mr.
Wheatley was asked
whether TIA ever gets used in connection with any phrase
other than “Time Impact Analysis” in the construction
application matured into Registration No. 2,676,834 on January
21, 2003, setting forth dates of first use of October 30, 2000.
Opposition No. 121,819
43
industry, he answered “not that I can recall.”
Mere Descriptiveness Analysis
In the event that the designation TIA ultimately is
found to be not generic, we turn to address the question
of mere descriptiveness. No claim of acquired
distinctiveness under Section 2(f) has been raised in
this case by applicant and, in response to the Board’s
questioning at the oral hearing, applicant acknowledged
this point. Specifically, counsel acknowledged that if
the matter sought to be registered were found to be
merely descriptive, then no registration would issue
based on the involved application.
A mark is merely descriptive if, as used in
connection with the goods and/or services, it describes,
i.e., immediately conveys information about, an
ingredient, quality, characteristic, feature, etc.
thereof, or if it directly conveys information regarding
the nature, function, purpose, or use of the goods and/or
services. See: In re Abcor Development Corp., supra; In
re Eden Foods Inc., 24 USPQ2d 1757 (TTAB 1992); and In re
American Screen Process Equipment Co., 175 USPQ 561 (TTAB
1972). The issue is not determined in a vacuum, but
rather the mere descriptiveness of the mark is analyzed
as the mark is used in connection with the goods and/or
Opposition No. 121,819
44
services. An abbreviation of a descriptive term which
still conveys to the buyer the descriptive connotation of
the original term will still be held to be descriptive.
Spin Physics, Inc. v. Matsushita Electric Industrial Co.,
168 USPQ 605 (TTAB 1970).
We find that the testimony and evidence establishes
that the designation TIA is, at a minimum, merely
descriptive when used in connection with applicant’s
services. Given the interchangeability of “TIA” and
“time impact analysis,” the letters immediately and
directly convey information about applicant’s services,
that is, that the services involve time impact analysis.
Decision
The opposition is sustained, and registration to
applicant is refused.
Pranab Kumar Deb
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hello heather can i have a copy at deb.icd@tajnet.com
regards
deb
Heather Spong
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I have sent an email to you both with the MDC paper attached as a PDF file.
Anoon Iimos
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Heather,

would you mind sending me one also? my e-mail is pedropogi@yahoo.com

thanks
Ife Olyke
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Can you send me the TIA document? olyke@yahoo.com
Thanks.
David Bordoli
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Heather…

I keep saying to myself “stop reading PlanningPlanet, don’t get involved, life is too short”. Unfortunately I am to vain to resist when I see something that I mistakenly think I might be able to contribute to.

Thank-you for sending me the MDCS paper. I have quickly read it and pheww… it is not what we call Time Impact Analysis in the UK. For those who have debated methods in the forum my quick overview is that it is an elaborate “as-planned –v- as-built” analysis.

It is the first time I have seen, in a posting here © and ®. And you do seem to emphasise what you believe is the misuse of the terms if used when associated with a delay analysis. Just think what it would be like if some commercial entity decided to trade mark the terms ‘As-Planned Schedule’ or ‘As-Built Schedule’ In my very humble option, and I stand to be corrected, the spirit of this forum is one of friendly debate and exchange of ideas and knowledge. We try not to go on about how fantastic the companies who we work for. Most people who are active in the forums, I guess, belong to businesses that have experience on a wide variety of project types and execution methods and so on.

A good starting point here would be to get hold of the Society of Construction Law’s Delay and Disruption Protocol. You can download it for free (I think) at www.eotprotocol.com. The Protocol has stimulated at lot of interest in the UK and beyond and describes four methods of analysis; including ‘as-built v as-planned’ and ‘time impact analysis’. The methods, names and descriptions have become accepted in the analysis fraternity so we tend to use them as a basis for understanding and discussion. Again, I might be mistaken, but don’t think many here would recognise your description of time impact analysis (maybe we should all learn to refer to it as Time Impact Analysis (TIA)®!

To go back to your original post you started by saying “Over the past few years there has been a debate as to where, when and by who Time Impact Analysis was developed”. I asked if you could shed some light on that debate as it seems to have passed me by.

Apologies if I sound like a miserable git – it is probably because I am!

Best regards

David

ps. When I suggested you should have declared an interest, I did not mean ‘tell us what your interests are’, I mean it would have been polite for you to tell us you have a vested interest in promoting or protecting Time Impact Analysis (TIA)®. I was taken in initially that you were just a Joe Soap with an interest in Time Impact Analysis.

pps. If anyone else wants the paper please PM me – I trust it is not © and I am allowed to do that (I am sure Heather will oblige too).
David Bordoli
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Heather

That’s pretty impressive for a first post – it sounds a bit like a positioning statement to me but hey ho - may I ask a few questions as I have a vested interest….

I try to keep my eye on current debate about delay analysis and I haven’t seen anything of the debate you say has ensued over the past few years – can you direct me please.

I have also missed the MDC Systems paper – I would be very grateful if you could let me have a copy or direct me where I could find one (david.bordoli@driverconsult).

Here in UK (or maybe it is just me) I don’t think we have TIA services. We use TIA as a method to analyse project delays – I think the opinion of the UK delay analyst business is that the method used to analyse delays depends on the records, the nature of the delays, the contract and so on and just offering a TIA service would be like offering a one size suits all garment to a population of different sized people.

Maybe what we in the UK call Time Impact Analysis, as generally defined in the SCL Protocol, is not what you call Time Impact Analysis. I have just been doing some research into some aspects of the Mirant –v- Ove Arup case (http://www.bailii.org/ew/cases/EWHC/TCC/2007/918.html). The judgement says that Mr Lechner, the principal of Price Waterhouse Cooper in San Franscisco was the programming expert on behalf of the claimants. I tracked down on the PWC site a case study for the project (http://www.pwc.com/images/gx/eng/about/ind/ip/power_station_case_study.pdf). You will see that there is a box entitled ‘Windows Analysis’ – the first strength listed there is ‘Preferred methodology (EOT Protocol)’. I am assuming, maybe wrongly, that ‘EOT Protocol’ refers to the Society of Construction Law Delay and Disruption Protocol. If that is the case it is wrong on two counts; Time Impact Analysis is the Protocol’s preferred methodology and Windows Analysis does not feature in the Protocol at all. So I am wondering maybe there is a terminology thing going on here.

I returned to college 1992-1994 to research methods of analysing construction project delays. My dissertation was The Simulation of Construction Project Delays Using Network Techniques, I like to think it was well researched but I must have missed the MDCS paper – although I had an assistant in the US I still found no references to Time Impact Analysis. Subsequently, the method of analysis I developed was published in Construction Management and Economics (A methodology for assessing construction project delays. Bordoli D. W. & Baldwin A. N. Construction Management & Economics, Volume 16, Number 3, 1 May 1998, pp. 327-337). CME is a peer reviewed publication that only publishes original work. During the lengthy refereeing process (I think we originally submitted the paper in 1995) one of the referees suggested that we formulate a name for the method – we rejected that suggestion!

Between completing my research and publication of our paper, Keith Pickavance published Delay and Disruption in Construction Contracts . In the first and second editions one of the techniques described was the “snapshot” or “time impact” analysis . Note, it is not decribed as “time impact analysis”. There is no mention in the footnotes of the MDSC paper - usually KP’s references are meticulous. However, as sections of the text and the description of the method of analysis were virtually identical to that in my research and paper I assumed the method being described was mine.

The method then seems to have been adopted by the SCL Protocol (published in 200) and has now been name ‘Time Impact Analysis’. I do not have KP’s third edition to hand, I can’t be sure but I believe he also refers to the method of Time Impact Analysis now, I don’t know if the MDCS paper is cited, mine is not.

Having just looked on the MDCS website (http://www.mdcsystems.com/mdc/mdc.nsf/Services_TimeImpact) I have found a description of your TIA:

Time Impact Analysis (TIA)® is a court-accepted schedule anlaysis technique created by DCCSystems®. Coupled with the application of legal principles, Time Impact Analysis (TIA)® provides a means for equitably resolving time-related construction disputes. The Time Impact analysis technique can be characterized as a comparative analysis utilizing three basic scheduling documents.
(1) The As-Planned Schedule is utilized as a benchmark for measuring performance on a project.
(2) The As-Built Schedule depicts the actual sequence of events occurring over the life of a project.
(3) The Adjusted Schedule (Controlling Time Impact is a series of adjusted schedules utilized to explain major schedule variances over the life of a project.

I don’t think this is what we (in the UK) recognise as Time Impact Analysis.

Being a scientist I can quite understand parallel development of techniques or isolated independent development in more than one place at different times – after all that’s what seems to have been the case with the Critical Path Method. Anyway, it would be intersting to see the MDCS paper to see if the UK TIA is the same as the “Time Impact Analysis (TIA)® is Registered Trademark of IMDISI, Inc. and licensed to MDCSystems in the European Union and a Registered Service Mark in the United States” method.

Best regards

David

ps As a matter of courtesy I would have thought you would have declared your interest at the head of your post. As a Paralegal with MDCSystems I think your post reads now more as an advertisement or a threat not to step on your trademarks and intellectual property?

Ms. Spong has a number of years of professional experience and brings a unique perspective and set of skills to the area of construction claims consulting. Utilizing her strong analytical and business/legal background, her consulting responsibilities include document indexing, document management, document review, and data analysis, report preparation and review, formatting and preparation of graphics, timelines and PowerPoint presentations. She has worked on a variety of construction consulting projects including refineries, schools, commercial and residential projects and resort developments. Ms. Spong is proficient in Excel, Word, Adobe, Timemap, Canvas, Power Point, Summation and other specialized programs. Ms. Spong also performs case and legal research with Lexus-Nexus and other web based programs.
Karim Mounir
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In addition to this info, we’ve had an extensive posts regarding TIA in PP on the following link:
http://www.planningplanet.com/forum/forum_post.asp?fid=1&Cat=7&Top=23309
Heather Spong
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Mr. Bordoli,
Thank you for your response. I have sent the 1983 MDC Systems paper to the email account that you provided. I will have the paper posted to our website in the next couple of weeks with our re-design efforts for others to read.

Indeed there is a debate as you have pointed out in your response:

"Maybe what we in the UK call Time Impact Analysis, as generally defined in the SCL Protocol, is not what you call Time Impact Analysis."

MDC has trademarked the terms associated with "Time Impact Analysis(TIA)®" as it relates specifically to a court-accepted schedule anlaysis technique created and used by MDC.
As such, this method of analysis is characterized as a comparative analysis utilizing three basic scheduling documents.
(1) The As-Planned Schedule is utilized as a benchmark for measuring performance on a project.
(2) The As-Built Schedule depicts the actual sequence of events occurring over the life of a project.
(3) The Adjusted Schedule (Controlling Time Impact is a series of adjusted schedules utilized to explain major schedule variances over the life of a project.

The use of the terms "Time Impact Analysis" or "TIA" which are not associated with this method to analyze project delays as defined above would not infact be "Time Impact Analysis," it would be another analysis method being misrepresented as Time Impact Analysis.

I agree with your statement: "We use TIA as a method to analyse project delays – I think the opinion of the UK delay analyst business is that the method used to analyse delays depends on the records, the nature of the delays, the contract and so on and just offering a TIA service would be like offering a one size suits all garment to a population of different sized people."

The fundamental concept of the TIA method is that it rests upon actual data and a logic driven as-planned schedule. The as-planned schedule is a fundamental building block upon which the analysis depends. In addition, TIA can only be properly applied by experienced project management professionals, knowledgeable of technical, schedule and cost issues for the project under examination.
Experience on a wide variety of project types and execution methods, for projects located throughout the world is critical in properly analysing project delays. MDC’s knowledge base is contuniually growing as the most recent computer analysis routines that can aid in the evaluation of large(5000+ activity), complex, multi-critical path, resource loaded, and cost tracking schedules. While the basic TIA method remains almost unchanged in approach, it is now many times more sophisticated than in the early days of manually drawn and calculated CPM schedules.

ps. As a matter of courtesy, my interests are to participate in discussions related to claims analysis, schedule techinques, and construction law for my educational and professinal development purposes.
My post was meant to be a topic of conversation not a threat or advertisement. I am simply trying to understand the differences in schedule analysis techniques around the world and the definitions of terminology used by others involved in schedule analysis. I am obvisouly not a scientist, but would still like to discuss the methodology and techniques used for schedule analysis as this forum provides.