Tuesday, February 20, 2007

"SHAREMUSIC" Not Merely Descriptive of Audio Equipment, Says TTAB

The Board reversed a Section 2(e)(1) refusal to register the mark SHAREMUSIC, finding the mark not merely descriptive of "audio equipment, namely, modules and connectors for interfacing home audio systems to portable audio players and recorders; speakers, volume controls, speaker switches, audio source switches, amplifiers and tuners." In re Dana Innovations, Serial No. 78576297 (February 6, 2007) [not precedential].

The Examining Attorney contended that the mark describes the purpose of the goods: viz., to share digital music between users. He relied on various Internet website articles referring to music sharing in various context: e.g., by using infrared headphones with the music player connected to an infrared transmitter.

Applicant argued that the mark is at most suggestive:

"There is no evidence or allegation that Applicant's goods function to communicate music ... to anyone other that the user of Applicant's goods. While Applicant's goods may allow multiple users to, for example, hear music broadcast by an FM station, or recorded in a music file, there is no showing that the experience is commonly referred to as 'sharing' the broadcast or music file."

The Board sided with Applicant, noting that the PTO's articles did not pertain to Applicant's type of audio equipment. It found that purchasers would have to use "some degree of thought or imagination to understand that the equipment allows persons to 'share music' in the sense that the equipment allows multiple persons to listen to music from an Mp3 player such as an Apple iPod."

The Board therefore reversed the refusal to register.

TTABlog comment: Perhaps the Examining Attorney was thinking of "file sharing" over the Internet. Applicant's product, however, seems to be analogous to an ordinary radio by which listeners may "share music" by sitting in front of it.

Applicant's website, however, does state that its product "makes it possible to easily share music and photos through any home stereo or entertainment system." Had this website been in evidence, would the result have been different?

Text Copyright John L. Welch 2006.


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