Monday, April 26, 2010

Precedential No. 15: TTAB Affirms Rejection of Website Specimen for Goods, Ordering Information Lacking

Finding Applicant's specimen of use unacceptable, the TTAB affirmed a refusal to register the mark PROVIDING PROTEIN AND MENU SOLUTIONS for "processed meats, beef, pork, poultry and seafood sold in portions; fully cooked entrees consisting primarily of meat beef, pork, poultry or seafood." The Board observed that "[i]f there is no way for a consumer, when visiting a webpage, to order the goods being promoted, then the use of a proposed mark in connection with the goods on the webpage is nothing more than advertising. In re Quantum Foods, Inc., 94 USPQ2d 1375 (TTAB 2010) [precedential].

[Click on photo for larger picture]

Applicant contended that the web page does show ordering information: "If you put the cursor over 'FOR FOODSERVICE,' a drop down menu appears which includes a 'contact us' link. If you click on the 'contact us' link, you are routed to the customer service page which contains an email address and toll free number for contacting applicant's customer service department for, among other thing, placing an order for the goods." Thus, according to Applicant, the website satisfies the requirement for a proper webpage specimen: "(1) a picture of the goods; (2) the mark appears directly above the goods; and (3) a visible weblink to order the goods by clicking on 'For Foodservice.'"

Examining Attorney Justine D. Parker responded that the specimen may show use in connection with a service, for "creating menu solutions," but "it does not show use of the proposed mark in connection with the goods." She argued that "[b]ecause the specimen does not have instructions or information for ordering the goods, consumers will not know that they can contact applicant to order" them.

The Board agreed with the Examining Attorney. Reviewing the pertinent CAFC and TTAB precedents, it found Applicant's webpage to be nothing more than advertising, and advertising is not a proper specimen of use for a trademark.

The problem with applicant’s specimen is that it does not contain any information normally associated with ordering products via the Internet or the telephone as in Sones, Valenite or Dell. For example, there is no sales form, no pricing information, no offers to accept orders, and no special instructions for placing orders anywhere on the specimen. That is, the webpage is simply a way to advertise and inform the public about the company and its goods; the webpage does not show an actual offer for sale of the goods identified in the application and the opportunity and means to complete an on-line purchase of any goods. There is no ordering information and, in point of fact, it is not even clear what goods, if any, can be ordered from applicant.

The fact that customers can move their cursor over "FOR FOODSERVICE" to reach a "contact us" page "does not convert ordinary advertising into a point-of-sale display associated with the goods."

Applicant’s webpage contains no actual information about applicant’s goods and it is not clear how the goods would be ordered through the website, unlike the case with the webpage specimens in Valenite and Dell. Similarly, unlike the specimen in Sones that displayed “shopping cart” functionality for online ordering, applicant’s webpage does not display any capability to buy the goods.

And so, the Board affirmed the refusal.

TTABlog comment: Not much to argue about here. Perhaps Quantum should file a service mark application?

Text Copyright John L. Welch 2010.


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