Tuesday, August 11, 2009

TTAB Okays Web Page Specimen for Sausage Links

The PTO Examining Attorney rejected Applicant Odom's specimen of use, consisting of a web page displaying the design mark shown below, for "fresh sausage rolls, links and patties; fresh souse; frozen sausage ball appetizers." According to the Examining Attorney, the design is not so prominently displayed in the website that customers will easily associate the mark with the products." The Board reversed, finding that Applicant's use of the mark was consistent with the Lands’ End decision and with subsequent Board precedent. In re Odom's Tennessee Pride Sausage, Inc., Serial No. 76581899 (July 28, 2009) [not precedential].

In the Examining Attorney's view, appearance of the mark in the bottom corner of the web page was not "sufficiently near the picture of the goods to associate the mark with the goods."

Applicant's specimen
(click on picture for larger image)

The Board concluded that the Examining Attorney "fails to see the forest for the trees."

While applicant’s mark does appear at the bottom of the page near text including the boiler-plate legal notices and standard buttons providing links, such as “Home” and “About Us,” the Farm Boy design mark stands out from this text. The mark is substantially larger and more prominent; it is in no sense boiler-plate or standard; and most importantly, as the Examining Attorney acknowledges, it is recognizable as a design mark, although the Examining Attorney argues that it is only a service mark.

As to the proximity of the mark to the goods, Applicant asked a good question: "[H]ow much 'nearer' to the photographs and information regarding Applicant's products sold online could Applicant's mark be?" The Board agreed that the mark and goods are close enough:

[W]e note that the entire page is devoted to applicant’s products. All of the products pictured are within the scope of the goods identified in the application. Reading down the page, the mark appears prominently and immediately beneath the product displays. Also, there is no real dispute as to the fact that the web page satisfies the other elements of Lands' End, that is, the page includes pictures of the goods and provides both information regarding the goods and the means to order the goods. Accordingly, we conclude that applicant’s specimen is acceptable.

And so the Board reversed the refusal.

TTABlog comment: For a discussion of webpage and catalog specimens of use, go here.

Text Copyright John L. Welch 2009.


At 11:42 AM, Blogger Alex said...

I'm just curious if the picture of the mark on your e-mail was reversed in transferring / transforming it to the e-mail? Also, isn't this a WYHA for the examiner? It seems pretty straightforward to me. I have trouble understanding how this would get to be appealed if the examiner were properly trained and supervised? Actually, a managing attorney (or assistant M.A.) was supposed to sign off on the brief and I'm surprised they thought this was appealable.

At 4:28 PM, Blogger linda55 said...

I can see why the examiner refused the specimen. Viewing the web page as a whole, I perceive the design in question as ornamental. It's positioned apart from the goods and at the bottom of the page, opposite another design that looks like plate of sausage.
Is the plate of sausage a trademark, too?

At 8:28 AM, Anonymous Abe Froman said...

I wouldn't call the mark ornamental-- it clearly works for "Class 35 retail services featuring sausage," but not so much for the goods themselves, particularly as the goods are shown with a different figure on the wrappers.


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