Monday, August 22, 2005

TTAB Affirms Refusal to Register Title of Single Book

The TTAB didn't need to write a book in order to explain its affirmance of the PTO's refusal to register the alleged mark LEE CANTER'S RESPONSIBLE BEHAVIOR CURRICULUM GUIDE for "educational publications, namely, printed guides in the field of classroom management." In fewer than 5 pages, the Board agreed with PTO Examining Attorney Linda A. Powell that the phrase is the title of a single creative work and therefore does not function as a mark. In re Canter & Assoc., Inc., Serial No. 76396925 (August 10, 2005) [not citable].

Applicant Canter & Associates "did not contend that [the phrase] is anything other than the title of a single work," but it argued that "there is no per se prohibition against trademarks for books." If the title of a single video game or a single board game can be a trademark, Applicant reasoned, why not a book title if it indeed identifies the source of the goods?

Unfortunately for Applicant, there is indeed a per se rule. The law regarding the title of a single book was made clear as recently as Herbko Int'l Inc. v. Kappa Books, Inc., 64 USPQ2d 1375, 1378 (Fed. Cir. 2002): "the publication of a single book cannot create, as a matter of law, an association between the book's title (the alleged mark) and the source of the book (the publisher)."

Therefore the Board not surprisingly affirmed the refusal to register under Sections 1, 2, and 45 of the Trademark Act.

Text Copyright John L. Welch 2005


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