TTAB Finds "RUFFAREE" T-Shirt Specimen Acceptable for Dog Park Services
Finding some of applicant's various specimens of use to be acceptable, the Board overturned the USPTO's refusal to register the mark RUFFAREE for “recreational dog park services.” The Board agreed with the examining attorney that most of applicant's specimens were inadequate, but applicant hit paydirt with photos of an employee wearing the shirt at the dog park. In re Brewhound Coffee-Bar Co., Serial No. 88681779 (March 14, 2025) [not precedential] (Opinion by Judge Angela Lykos).
Trademark Rule 2.56(b)(2) states: "A service mark specimen must show the mark as used in [1] the sale of the services, including use in the performance or rendering of the services, or [2] in the advertising of the services. The specimen must show a direct association between the mark and the services." The Board observed that "[w]hile the exact nature of the services does not need to be specified in the specimen, 'there must be something which creates in the mind of the purchaser an association between the mark and the services that have been recited in the application.'"
An acceptable specimen need not explicitly refer to the services if it shows use of the mark in the rendering, i.e., sale, of the services. See In re Red Robin Enters., 222 USPQ 911, 914 (TTAB 1984) (bird costume used as a mark for entertainment services in the nature of personal appearances by a clown).
Applicant’s original specimens consisted of (1) a printout from Applicant’s website; (2) an advertisement published in the magazine “Unleash Jacksonville”; and (3) a red t-shirt displaying RUFFAREE on the back. The Board agreed with the Examining Attorney that none of these specimens was acceptable: the website printout did not display the mark, the advertisement used the term only in connection with a job title, and the t-shirt photo did not "show use of the mark in connection with the identified services either in the form of an advertisement or the actual rendering of 'recreational dog park services.'"
The Office also rejected a set of three photos consisting of "pictures of employees at the recreational dog park," each wearing a t-shirt displaying the term RUFFAREE [see image above], contending that these specimens failed to associate the mark with the services. Applicant argued that they showed a direct association because the employees were wearing the shirts while providing the services.
The Board agreed with applicant. "Applicant explained during prosecution that the shirts are employee uniforms, and are worn on employees daily while working at Applicant’s recreational dog park. Each photograph supports Applicant’s explanation. Thus, Applicant’s mark is displayed on the uniform of employees in the course of rendering 'recreational dog park services.'"
Consumers of Applicant’s services will therefore perceive the display of RUFFAREE on the back of Applicant’s employee uniforms as service mark usage. See JobDiva, 121 USPQ2d at 1126 (a key consideration is the perception of the consumer).
Consequently, these specimens were deemed acceptable, and the Board reversed the refusal to register.
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TTABlogger comment: Hat tip to FOB Woody Pollack and his dogged determination. Note my refusal to employ any other cheap puns, like barking up the wrong tree, bark worse than bite, etc.
Text Copyright John L. Welch 2025.