Thursday, April 26, 2018

TTAB Affirms Rejection of TRUWALLET Specimen of Use for Lack of Use with Recited Services

The Board affirmed a refusal to register the mark TRUWALLET for "providing on-line cash account services offered in connection with a network marketing service," agreeing with Examining Attorney Valerie Kaplan that applicant's specimen of use failed to show the mark in use for the recited services. In re Porter, Serial No. 87227122 (April 24, 2018) [not precedential] (Opinion by Judge Robert H. Coggins).

The Examining Attorney relied on dictionary definitions of "cash account" as an account that settles transactions on a case basis. She argued that Porter's services "appear to be a reward program using credit that can be used to pay for future transactions." She pointed to wording in the specimen that explains that a user of applicant's "Trunited" platform "accumulate[s] points from the 1st of the month until the 31st of the month. You receive your truWallet and Affiliate Cash on the 7th of the following month" and "Your purchases are rewarded with earnings that go into your truWallet. These earnings are good toward future purchases."

Applicant argued that TRUWALLET "is a 'cash account,' regardless of how the money is paid into the account," "acts as a 'cash account,'" and "can be used as cash."

The Board, however, found that applicant's services did not fit any of the definitions of "cash account."

The specimen does not indicate that the TRUWALLET account is one in which all transactions are in money, or one in which purchases are paid for in full. There is no indication that a user may deposit or withdraw money from the account, or even withdraw the rewarded earnings for cash; instead the account is limited to a user’s share of Trunited profits that are credited by Applicant based on points earned from using the Trunited platform and which must be used solely for future purchases on the Trunited platform.

The Board agreed with the Examining Attorney that consumers would perceive applicant's services as a points program or consumer loyalty program in which the user is rewarded with earnings each month that are good only toward future purchases.

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Would you have appealed?

Text Copyright John L. Welch 2018.


At 12:05 PM, Anonymous John Egbert said...

If that was their only specimen, it probably should not have gone to appeal. One would think that they would have had a website.

At 8:15 PM, Anonymous Nik said...

An appeal may have been warranted if they had other specimens, such as a website or a mobile application demonstrating clear use of a "cash account." It's interesting to consider the dictionary definition of "cash account" and it makes me think about the cryptocurrency craze. In theory, a cryptocurrency is not cash, but can eventually be converted to a fiat currency, such as a dollar bill. With the rise of digitization and point-based reward systems, it is becoming more difficult to determine what exactly a "cash account" is or can be. I understand what Applicant was stating in their argument when claiming that it "acts as a 'cash account,'" but I ultimately think it was not a strong argument.

However, turning to the specimen requirement, the key consideration of the "perception of the user" certainly plays a role in determining whether or not it is adequate. Looking at the specimen provided, it does appear to be more of a rewards program rather than a cash account.

The network marketing service, Trunited, as explained by applicant, also raises some questions in regard to TruWallet. Would it have been more likely that TruWallet would have been able to use the specimen provided illustrating a "cash account" if users were allowed to withdraw and deposit money? I believe that it would have been more likely since this would be more in line with the definition of a cash account.

I think the main issues here deal with either an improperly recited service(s), an improper specimen, or perhaps both. Applicant not arguing that their services fit any of the record definitions of "cash account" did not help their case. Altering and stretching the definition of "cash account" does not cure the lack of use with the recited services. I think it is likely that consumers would have perceived the TruWallet service as a points program or consumer loyalty program and I would have also affirmed the refusal.


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