Tuesday, January 29, 2013

Precedential No. 4: TTAB Affirms Failure-to-Function Refusal of BLATANCY for Audio Recordings by Eponymous Performer

Examining Attorney Katina Minster refused registration of the mark BLATANCY for "audio recordings featuring music" in Class 9, on the ground(s) that the mark failed to function as a trademark because it comprised the title of a single artistic work, and because it merely identified the featured performer. In an enervating, yet precedential decision, the Board reversed the first refusal but affirmed the second. In re Arnold, 105 USPQ2d 1953 (TTAB 2013) [precedential].

Title of a Single Work: Applicant Arnold overcame the "single work" refusal by showing that the mark BLATANCY has been used on a series of works. Of course, a title used on a series of works is registrable as a trademark. The evidence included two CDs identified by the BLATANCY designation; because it was not clear whether the two CDs had the same content, the Board gave Arnold the benefit of the doubt.

Name of Performer? The evidence showed that BLATANCY is the name of a performing artist associated with applicant's goods. The Examining Attorney followed Section 1202.09(a) of the TMEP by requiring that applicant demonstrate that (1) the proposed mark has been used on a series of works and (2) the mark serves to identify the source of the series of works. Applicant Arnold satisfied the first prong of the test [can a prong be satisfied? - ed.]. The question then was whether BLATANCY serves to identify the source of the goods.

The Examining Attorney advised Arnold that he could "fulfill the second prong" (sic!) of the test by submitting a verified statement as to his control over the nature and quality of the goods. Arnold did not do so. The Board, therefore, had to consider whether:

applicant has demonstrated, through submission of evidence, that he controls the nature and quality of his goods and the use of the name BLATANCY thereon in such a way as to indicate the quality of those works; or, alternatively, whether this name has become so widely recognized, through vigorous promotion, that it now identifies applicant as the source of a series of works.

The Board looked to applicant's MySpace Music page, his official website, advertisement cards, and CD insert, but it found the evidence as to control "conflicting and of uncertain meaning." The evidence referred to a "Record Label" called "ComingUp Records" and to a "Publisher" named "Simply Original Music." Other evidence referred to BLATANCY as "Producer" and as a "publisher."

In short, it was unclear from the record who controlled the mark. It was applicant's burden to dispel the ambiguities by means of reliable evidence, such as business records or affidavits, and he failed to carry that burden.

And so the Board affirmed this second refusal.

Read comments and post your comments here.

TTABlog note: Applicant Arnold's application included live entertainment services in Class 41, and the Examining Attorney accepted his specimen of use for that Class.

Text Copyright John L. Welch 2013.


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