Thursday, May 19, 2011

Test Your TTAB Judge-Ability on this Service Mark Specimen of Use

The USPTO refused registration of the mark EPIC MISSION for "distributorship services in the field of nutritional beverages," finding that Applicant's specimen did not use of the applied-for mark in connection with the recited services. The specimen of use, a two-page brochure, is depicted below. How would you rule? In re Health Fusion Brands, Inc., Serial No. 77691724 (May 10, 2011) [not precedential].

(Left-click on each picture for larger view)

Implicit in the definition of "use in commerce" for a service mark, said the Board, is the requirement of "a direct association between the mark and the services, i.e., that the mark be used in such a manner that it would readily be perceived as identifying the source of the services."

Applicant pointed to its use of the "SM" symbol on the first page, and the appearance of its contact information on the second page. Not enough, said the Board.

"While the exact nature of applicant’s proffered services does not need to be specified in the specimen, there must be something which creates in the mind of the prospective purchaser an association between the mark and the service activity."

Here, the specimen of use contained "absolutely no reference" to the recited services. Moreover, it was not even clear that Applicant was distributing anything other than its own "RipTide" beverages: i.e., "it is not even clear from this record that applicant is engaged in distributorship services for the benefit of others."

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

TTABlog comment: Maybe this case should have been a WYHA? as well as a TYTJ-A?

Text Copyright John L. Welch 2011.


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