Tuesday, November 04, 2008

"IS YOUR MORTGAGE CONTRIBUTING TO YOUR WEALTH?" Fails to Function as a Service Mark, Says TTAB

The Board wasted little time in affirming a refusal to register the phrase IS YOUR MORTGAGE CONTRIBUTING TO YOUR WEALTH? for "mortgage brokerage services," finding that the phrase as used by Applicant Capital Financial Advisors, Inc. fails to function as a service mark. In re Capital Financial Advisors, Inc., Serial No. 76661472 (October 24, 2008) [not precedential].

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Applicant feebly argued that the phrase does indeed serve as a mark "because it was separately displayed and used in conjunction with" its services. The Board was unimpressed:

"... the mere fact that the subject matter sought to be registered appears as a distinct phrase or slogan, separate and apart from other matter, does not make it a service mark. [It] must be used in a manner calculated to project to purchasers or potential purchasers a single source or origin of the services."

The "critical" determination is whether the phrase would be perceived as a mark or merely as an informational phrase. That required a look at the specimens of use.

The Board found that the "primary significance" of the phrase "is likely to be perceived as advertising copy or a promotional tool to grab the consumer's attention, but it would not be perceived as indicating the source of any services. It "would not be perceived by persons reading the advertisement any differently from the way they would perceive any other information or advertising" about the services.

In short, consumers "would not attribute any service mark significance" to the phrase, and so the Board affirmed the refusal to register.

Text Copyright John L. Welch 2008.


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