Precedential No. 18: TTAB Affirms Rejection of Trademark Specimen as Mere Advertising and not Point-of-Sale Display

The Board affirmed a refusal to register the mark ANPATH for "All purpose disinfectant cleaning preparations for household, commercial and industrial use" on the ground that the mark, as used on Applicant's specimens of use, fails to function as a trademark for Applicant's goods. Applicant argued that its specimens should be treated as point-of-sale displays, but the Board found the specimens to be mere promotional pieces touting the advantages of the products and lacking sufficient ordering information to qualify as a proper trademark specimen. In re Anpath Group, Inc., 95 USPQ2d 1377 (TTAB 2010) [precedential].

Applicant's specimen flyer(click on photo for larger picture)
The Board observed that there is a "clear line of demarcation" between mere advertising materials (unacceptable) and point-of-purchase promotional materials (acceptable as a display associated with the goods). On which side of the line Applicant's specimens fall was the question at hand.

"Applicant correctly identifies the critical issue as whether either of its specimens is in the nature of a point-of-sale display." Examining Attorney Dominic Fathy maintained that, despite the prominent inclusion of a toll-free telephone number, the specimens do not include sufficient information to allow the customer to actually order the goods. Applicant, on the other hand, asserted that the specimens are the mechanisms through which purchases of the goods may be made.

Applicant argued that its specimen shows its mark near a description of the product and includes information on how to order the goods. The Board, however, found that the applicant's "pamphlet" and its "product ordering information" do not have the many characteristics of the Land's End catalogue (e.g., detailed descriptions and pictures having trademarks displayed prominently nearby, specifications and options, prices, colors, sizes, a detailed order form, etc.) and hence are not clearly analogous to printed material from which the goods are ordered."

The Board agreed with the Examining Attorney: "the specimens do not contain adequate information for making a decision to purchase the goods and placing an order, and hence, we conclude that applicant's specimens are nothing more than mere advertisements that do not show use of ANPATH as a trademark for the goods."

We find that these specimens are promotional pieces of literature primarily designed to tout the benefits of a product. We recognize that they list the URL of applicant’s website and/or a telephone number for contacting applicant’s sales representatives/ordering personnel; however, this level of information does not create the same point-of-sale situation as a detailed catalogue capable of allowing a consumer to consummate a physical order, or a detailed web page, or even the same as a situation where there is the option of placing an order via telephone based upon detailed information from the proffered specimen.

And so the Board affirmed the refusal to register under Sections 1, 2, and 45 of the Trademark Act.

Text Copyright John L. Welch 2010.