Thursday, November 06, 2008

Webpage Specimen for "ONE NATION UNDER GOD" Charity Bracelets Fails to Pass TTAB Muster

Finding the requirements of Lands' End and Dell unfulfilled, the Board affirmed a refusal to register the mark ONE NATION UNDER GOD for "charity bracelets," rejecting Applicant's specimen of use (an electronic catalog webpage) as unacceptable. In re Sones, Serial No. 78717427 (September 30, 2008) [not precedential].

Examining Attorney Michael G. Lewis maintained that, under Lands' End Inc. v. Manbeck 24 USPQ2d 1314 (E.D. Va. 1992) and In re Dell, Inc., 71 USPQ2d 1725 (TTAB 2004), a webpage may be an acceptable specimen for a product if it (1) includes a picture of the relevant goods; (2) shows the mark associated with the goods; and (3) contains the necessary ordering information. Applicant's website, however, failed to include a picture of the goods (see below).

click on picture for larger image

Applicant Sones argued that the PTO was misapplying the two precedents because they do not require a picture. In Lands' End, he asserted, the court "focused on the fact that the catalog page contained a description of the goods," and similarly in Dell, the TTAB focused at least as much on the written description as on the picture.

Finally, Sones contended that the specimen's description of the goods as "CHARITY BRACELET CHOICE OF BLUE OR RED" renders a picture unnecessary because charity bracelets are ubiquitous and purchasers would clearly understand what the goods are.

The Board was not persuaded. "[C]ontrary to applicant's arguments, the picture of the goods in the catalog in Lands' End and the display of the product at the website in Dell were important factors in the holdings in those cases."

Here, there is no picture of the goods on Applicant's webpage. "In the absence of a picture of the goods, the mark does not appear on the webpage in a manner in which the mark is associated with the goods. * * * [T]he purported ubiquitousness of charity bracelets does not obviate the requirement for a picture of applicant's particular charity bracelets."

The Board therefore affirmed the refusal to register.

Text Copyright John L. Welch 2008.


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