TTAB Affirms PTO Refusal: Specimens Fail to Show Use for Live Entertainment Services

The Board affirmed a refusal to register the mark FAB AGAIN for "entertainment in the nature of visual and audio performances, namely, musical band, rock group, gymnastic, dance, and ballet performances," on the ground that applicant failed to submit an acceptable specimen of use. Specimens evidencing use of the mark on recordings or in connection with music streaming are not sufficient to support a registration for the recited services: the specimens must relate to a live performance before an audience. In re Titan Music, Inc., Serial No. 77344197 (August 20, 2014) [not precedential].

Applicant first submitted a webpage from the CDBABY.com website, offering for sale a music CD having the cover shown above. Examining Attorney Andrew Rhim rejected that specimen of use because it made no reference to any services.

Applicant then submitted a printout from Last FM's internet website (a streaming service), showing the album cover with a link to allow streaming audio from the album. The Examining Attorney again refused to accept the specimen because "performances captured on a musical sound recording constitute goods and are not the same as the service of providing or conducting visual and audio performances."

"Performance" in the context of services involves the act of performing and is done in front of an audience. *** [T]he Trademark Manual of Examination Procedure Section 1402.11(g) states that "For entertainment services in the nature of performances, such as those rendered by a musical group, the performances must be live."

The TMEP goes on to say that "[t]he recording of a live concert or studio performance is not considered a service of the performing group." [The production of a recording by another entity of a performance by a musical group would be a service of the other entity.] Recorded entertainment usually takes the form of goods in Class 9, such as videotapes, audio cassettes, DVDs, CDs, etc.

The Board agreed with the Examining Attorney that applicant's specimens may show use of the mark for goods (compact discs) or services (streaming), but they did not show use of the mark with the recited services.

And so the Board affirmed the refusal.

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TTABlog note:  Who's that in the middle of the Fab Four?
 

Text Copyright John L. Welch 2014.