TTABlog Test: Does "HELP THE PERSECUTED" Fail to Function as a Mark for Charitable Fundraising Services?

The USPTO refused registration of the proposed mark HELP THE PERSECUTED (in standard character form), concluding that it fails to function as a source indicator for "charitable fundraising services." Examining Attorney Tara L. Bhupathi maintained that the phrase is an informational message commonly used in the marketplace and in applicant’s particular trade or industry. Applicant contended that, inter alia,  HELP THE PERSECUTED functions as a trademark similar to other "HELP THE…" marks (like HELP THE AFGHAN CHILDREN) that have been registered by the Office. How do you think this appeal turned out? In re Help the Persecuted, Inc., Serial No. 88323799 (December 15, 2020) [not precedential] (Opinion by Judge George C. Pologeorgis). 

The Examining Attorney relied on numerous third-party website excerpts seeking donations to "help the persecuted." She also pointed to applicant’s specimen of use that showed the proposed mark used to promote fundraising services to “provide vital support and much-needed encouragement to persecuted Christians." Based on this evidence, the Examining Attorney argued that consumers are accustomed to seeing the phrase HELP THE PERSECUTED employed in connection with requests for charitable donations, and so, when used in connection with applicant's services, the phrase will not be perceived by consumers as pointing to one particular source.

Applicant pointed to the Examining Attorney's withdrawal of a mere descriptiveness refusal as proof that the mark is merely suggestive and therefore not informational. The Board, however, pointed out that "[c]ommon phrases and slogans need not be descriptive or generic to be found informational."

The list of third-party registrations submitted by applicant had little probative value. For one thing, the list of registrations did not indicate the goods or services involved. In any case, the Board "must apply the law to the facts in every case before us, irrespective of what happened to other marks which, due to their being registered, we do not have the opportunity to review."

Finally, the Board observed that, contrary to applicant's argument, the evidence "not only shows common use of HELP THE PERSECUTED by third parties, but also demonstrates that these third parties use the wording to convey information about the services provided, such as seeking donations to aid persecuted persons."

Quite simply, the record in this case demonstrates the ubiquity of the phrase HELP THE PERSECUTED in connection with charitable fundraising services. In addition, Applicant’s own specimen reinforces the nature of HELP THE PERSECUTED as an expression commonly used in the context of charitable fundraising to request monetary donations or other assistance. In particular, we note that the specimen’s use of “You can help” and the reference to providing support and encouragement to “persecuted Christians” emphasizes that HELP THE PERSECUTED is an informational message. We therefore find that consumers will not perceive the commonly-used expression or phrase HELP THE PERSECUTED as distinguishing Applicant’s charitable fundraising services in commerce and indicating their source.

And so the Board affirmed the refusal to register under Sections 1, 2, 3, and 45 of the Trademark Act.

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TTABlogger comment: Noted trademark expert David Perlsack says that he hasn't seen so many failure-to-functions in such a short period of time since his honeymoon.

Text Copyright John L. Welch 2020.