Wednesday, September 03, 2008

Specimens Don't Match Drawing, So TTAB Affirms Refusal to Register "AT C-LEVEL" for Magazines

In another of our "Would you have appealed?" series of decisions, the Board affirmed a refusal to register the mark AT C-LEVEL for "magazines featuring economic information specific to municipalities" on the ground that the mark depicted in the drawing is not a substantially exact representation of the mark shown in Applicant's specimens of use, as required by Rule 2.51(a). In re San Diego Regional Economic Development Corp., Serial No. 78678729 (August 21, 2008) [not precedential].

Applicant's original specimen was a magazine cover (like the one above), with the word "at" in tiny letters after the words "San Diego." Its substitute specimen displayed the words "San Diego at C-LEVEL" all in the same font and font size at the very bottom of the Table of Contents page:

Examining Attorney Jay K. Flowers understandably contended that neither specimen shows use of the mark "AT C-LEVEL." The Board agreed.

"[I]t all boils down to a judgment as to whether that designation for which registration is sought comprises a separate and distinct 'trademark' in and of itself. In re Yale Sportswear Corp., 88 USPQ2d 1121 (TTAB 2008)."

On appeal, Applicant did not contend that the original specimen was acceptable, but instead focused on the second. The Board concluded, however, that AT C-LEVEL does not make a separate and distinct commercial impression when used in the phrase "San Diego at C-LEVEL."

"[T]he word 'at', which is depicted in lower case, will be seen as part of the 'San Diego' portion of the phrase because 'San Diego' also contains lower case letters, rather than as part of the all upper case 'C-LEVEL' portion. Further, the inclusion of 'at' in applicant's drawing results in a mark, 'AT C-LEVEL,' which is different in connotation from either 'C-LEVEL' or 'San Diego at C-LEVEL.'"

Therefore, the Board affirmed the refusal.

Text Copyright John L. Welch 2008.


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