TTAB Affirms Refusal: Applicant Failed to Comply with Rule 2.61(b) Requirement for Additional Specimens
Pursuant to Rule 2.61(b), Examining Attorney Y.I. Lee required that pro se Applicant Kent G. Anderson provide additional specimens for his class 1 and class 3 goods because of the wide range of unrelated articles listed in his application. Anderson didn't. Ms. Lee refused registration. Anderson Appealed. He lost. In re Anderson, Serial No. 76497832 (August 4, 2009) [not precedential].
Anderson sought to register the mark TOMORROW for, inter alia, photographic chemicals, unprocessed artificial resins and plastics used in agriculture, manure, and food preservative compositions in class 1; and for more than 100 items in class 3, including after-shave gel, baby oil, boot cream, dish detergents, and grooming preparations for pets. The Examining Attorney rejected Anderson's specimens as inadequate to show use of the mark with the identified goods, and she also required that Anderson submit additional specimens because "the listed Class 1 goods and Class 3 goods, as recited in the Statement of Use, are long and contain numerous unrelated goods." She argued that:
The only Class 1 specimens provided during prosecution were of "photographic chemicals" and "additive fuel treatment." Photographic chemicals and fuel additives are unrelated to artificial resins and plastics used in agriculture, as well as manure, fire extinguishing compositions, food preservative compositions, and tanning agents for use in the manufacture of leather.
Applicant's identification of goods of Class 3 goods is extremely long and contains a wide variety of goods that are also unrelated. Applicant did not provide any other specimens other than mouthwash and lipstick. These are not related to adhesive removers, adhesives for attaching artificial fingernails or eyelashes, non-medicated pet shampoo, pre-moistened cosmetic wipes, or tailors’ wax, to name a few. Applicant did not provide specimens demonstrating use of the mark with any of the other Class 3 goods listed in the identification.
The Board assumed arguendo that the particular specimens submitted by Anderson were themselves acceptable, but it proceeded to affirm the refusal to register based on Anderson's failure to comply with the requirement that he submit additional specimens.
... this small number of specimens fails to demonstrate use of the applied-for mark for the wide range of goods listed in Classes 1 and 3.
And so the refusal to register was affirmed.
TTABlog comment: Hooray for the Examining Attorney and the Board. I think that, in this digital camera age, the PTO should require a specimen for every item listed in the application. See my post called "Fraud and the Digital Camera."
Text Copyright John L. Welch 2009.