Test Your TTAB Judge-Ability on this Service Mark Specimen of Use
Able was I 'ere I saw Elba? How would you decide this case involving the acceptability of Elba Inc.'s specimen of use [shown below] for the mark FORMULATING HEALTH for manufacturing services in the fields of personal care and pharmaceutical products. The Examining Attorney refused registration, maintaining that the wording of the mark is so small and difficult to find that the phrase fails to function as a source indicator. In re Elba, Inc., Serial No. 77424767 (December 16, 2011) [not precedential].
Elba argued that the phrase FORMULATING HEALTH appears in a different font from the rest of the text, is physically separated from the text describing its services and from the company logo, and is presented in a manner that would be perceived as a service mark for its services. The Examining Attorney did not dispute any of this except for the last part - whether the phrase would be perceived as a service mark - since it is so difficult to discern.
The Board pointed out that "there is no requirement that applicant display the mark FORMULATING HEALTH in any particular size or degree of prominence on its website specimen." End of story. Refusal reversed.
TTABlog comment: Really? How small a font size can one get away with? The smallest one I know of is called "Lilliput," and with it one can write the entire TBMP on the head of a pin. Is that not too small?
Text Copyright John L. Welch 2012.