Thursday, February 26, 2009

"DRUMLINE LIVE" Merely Descriptive of Musical Performances, Says TTAB

It's time to add another WYHA case to our collection. Would you have appealed the mere descriptiveness refusal of DRUMLINE LIVE for "entertainment services in the nature of live musical performances"? Applicant Halftime Live LLC did just that, but the arguments it drummed up fell on deaf ears. In re Halftime Live LLC, Serial No. 77144094 (February 6, 2009) [not precedential].

Examining Attorney Mark Sparacino relied on Internet evidence and a Wikipedia entry for "drumline" in maintaining that a drumline is "a group of percussion instruments usually played as part of a marching ensemble." He reasoned that, since Applicant's recitation of services covers "live" musical performance, DRUMLINE LIVE is merely descriptive of Applicant's musical performances.

Applicant feebly argued the PTO erroneously assumed that applicant’s services consist solely of live drumline performances, when its "live musical performances involve a large and diverse touring group of vocalists, musicians and other entertainers, and many of the performances do not include percussion instruments." Applicant also contended (with a straight face? - ed.) that the term “drum” has meanings other than a musical instrument: e.g., (1) any of the cylindrical blocks that form the shaft of a column (2) a round wall or structure that supports a dome.

The Board first pointed out that the mark must be considered in the context of the recited services, not in the abstract, and so other meanings of the word "drum" in different contexts are irrelevant. In other words, "the question is whether someone who knows what the goods or services are will understand the mark to convey information about them."

The Board concluded that DRUMLINE LIVE "immediately conveys that applicant’s identified services involve live drumline performances."

As to Applicant's argument about the participants in its live musical performances, the Board noted that mere descriptiveness must be determined on the basis of the goods or services as identified in the application, and not on the basis of what applicant’s actual goods or services might be."

The "live musical performances" identified in the application must be presumed to include live drumline performances, as a drumline is a type of musical performance. That applicant's actual performances include performers other than percussionists, and frequently exclude percussion instruments, is not dispositive and does not negate the descriptiveness of DRUMLINE LIVE as used in connection with applicant's services as broadly recited in the application. In view of the foregoing, we find that DRUMLINE LIVE is merely descriptive of applicant’s recited services.

And so, the Board affirmed the Section 2(e)(1) refusal.

TTABlog note: Suppose Applicant's recitation of services had read "entertainment services in the nature of live musical performances that do not include percussionists." Would DRUMLINE LIVE be deceptively misdescriptive under Section 2(e)(1) or deceptive under 2(a)?

Section 2(e)(1) deceptive misdescriptiveness requires (1) that the mark misdescribe the services and (2) that purchasers are likely to believe the misrepresentation. Section 2(a) adds the third requirement that the misrepresentation be material to the purchasing decision. If the services do not in fact include percussionists, how could any purchaser of the services believe that they did? Wouldn't it be quite evident that there were no percussionists?

Not so fast! See the TTAB's precedential decision in In re Alp of South Beach, Inc., 79 USPQ2d 1009 (TTAB 2006) [TTABlogged here], in which a divided Board panel held the mark CAFETERIA for "restaurants providing full service to sit-down patrons, excluding cafeteria-style restaurants" to be deceptive under Section 2(a), despite Applicant's argument that customers would realize they were not about to dine in a cafeteria once they saw applicant's full-service restaurant:

"we find that the existence of pre-sale deception does not depend upon whether or not a sale is completed as a result of the deception. The mere fact that one may have decided to go to applicant's restaurant in order to patronize a true cafeteria, based solely upon applicant's choice of a deceptively misdescriptive name for a restaurant, is sufficient to meet the test of the final prong of the Budge test for deceptiveness." (slip op., pp. 19-20).

Thus if one decided to check out the DRUMLINE LIVE show thinking it included percussionists and then, upon arriving at the show learned that it did not, the mark would arguably still be deceptively misdescriptive of or deceptive for the services on a sort-of "initial interest confusion" theory.

Text Copyright John L. Welch 2009.


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