TTAB Upholds Refusal of "THIS IS FOR MY GIRLS" for Musical Services Because It Appears Only as a Song Title on Applicant's Specimens of Use

Concluding that the phrase THIS IS FOR MY GIRLS appears on the specimens of record solely as a song title, the Board affirmed a refusal to register the proposed mark for "entertainment information; musical composition for others; production of musical sound recording." In other words, the specimens of use did not evidence an association between the mark and the recited services. In re Di-Namic Records, Serial No. 87399929 (July 13, 2022) [not precedential] (Opinion by Judge Marc A. Bergsman).

The Board observed that. "[i]n order to establish the requisite “direct association” . . .  the specimen must contain a reference to the services and the mark must be used on the specimen to identify the services and their source." Applicant Di-Namic submitted five different specimens, identified as "website pages and sheet music." Nothing in the specimens created a nexus with or referred to the recited services.

Di-Namic next submitted copies of five different synchronization license agreements, but those agreements merely referred to the proposed mark as the title of a song. According to Di-Namic, however, the proposed mark is "much more." It pointed to to the phrase" THIS IS FOR MY GIRLS SYNCHRONIZATION LICENSE as creating a direct association between the mark and the services. The Board was unimpressed.

[L]icensees or potential licensees will perceive THIS IS FOR MY GIRLS as a song they wish to license. The song already exists and the licensee or potential licensee is not engaging Applicant to create a new song to the licensee’s specifications. Nothing in the sync license refers to THIS IS FOR MY GIRLS brand musical composition services for others.

The Board distinguished three prior decisions cited by Di-Namic because they did not address the same specimen issue, nor did they involve an attempt to register a song title. It rejected Di-Namic's argument that the proposed mark is not being used merely as a song title, but also to signify that it offers musical composition services as a logical prerequisite of the musical composition being licensed. It noted that, under Di-Namic's logic, "every song is a potential service mark identifying the applied-for services because someone might want to license it."

To be clear, there is no evidence in the record supporting a finding that a consumer viewing THIS IS FOR MY GIRLS on any of Applicant’s specimens will perceive the existence of a THIS IS FOR MY GIRLS brand for entertainment information, a THIS IS FOR MY GIRLS brand for musical composition for others, or a THIS IS FOR MY GIRLS brand for production of musical sound recordings. To the extent that any specimen advertises, or shows Applicant’s rendition of, any service, the song title “This is for My Girls” appears as the subject of the services, not as an indicator of their source.

And so, the Board affirmed the refusal under Sections 1 and 45 of the Trademark Act.

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Text Copyright John L. Welch 2022.