Test Your TTAB Judge-Ability on this Rejected Amendment and Specimen of Use
Applicant Marion L. Lonegro sought to amend her application for the standard character mark SENSITIVITY AWARENESS from "fund raising" and "educational seminars" to "publications for charitable fund raising." She submitted the specimen of use depicted immediately, identified as "an image applied by a rubber stamp to the packaging of publications used for fund raising." Was the amendment proper? Was the specimen acceptable? The PTO's Examining Attorney said no, so Ms. Lonegro appealed. What's your decision? In re Marion L. Lonegro, Serial No. 76695362 (April 12, 2010) [not precedential].
The Examining Attorney required clarification of Applicant's services, but instead she sought to amend the application to read "publications for charitable fund raising." The Board observed that an applicant may amend to clarify or limit, but not to broaden, the identification of goods or services. Not surprisingly, it concluded that "publications" did not fall within the services recited and that the refusal of the amendment was proper.
Turning to the proffered specimen of use, the Board noted that for services, there must be a "direct association between that mark ... and the services specified in the application, and there must be sufficient reference to the services in the specimens to create this association."
Not surprisingly, the Board found such required association lacking in Applicant's specimen of use. It noted that the services are not "so unusual that the typical methods of displaying a service mark therefor, e.g., signage or advertisements, would be unavailable."
And so the Board found the specimen inadequate.
TTABlog comment: WYHA? Applicant's attorney here is a frequent "WYHA?" source. True to form, he filed a three-page appeal brief and a two-page reply brief (which amounts to five fewer pages than the decision). Perhaps the PTO should raise the appeal fee?
Text Copyright John L. Welch 2010.