TTAB Reverses Failure-to-Function Refusal of BLACK BIRTHING BILL OF RIGHTS for Promotional Services

In a rare reversal of a failure-to-function refusal, the Board overturned the USPTO's refusal to register the mark BLACK BIRTHING BILL OF RIGHTS for "Promoting public awareness of the rights and needs of Black women and birthing persons in connection with maternal and postpartum care by means of public advocacy; Promoting the interests of Black women and birthing persons in connection with maternal and post-partum care by means of public advocacy."  The Board agreed with the applicant that the specimens show the mark in use in rendering the identified services and it identifies the applicant as the source of those services In re National Association to Advance Black Birth, Serial No. 90581377 (August 23, 2022) [not precedential] (Opinion by Judge Thomas Shaw).

Applicant is a non-profit entity promoting improvements in Black maternal and infant health care. It created the BLACK BIRTHING BILL OF RIGHTS, identifying twenty “rights” to which all expecting Black women are entitled. Applicant uses social media to further its mission of promoting and advocating for improved Black maternal and infant health care.

The Board found that applicant’s social media posts featuring the BLACK BIRTHING BILL OF RIGHTS promote Black maternal and infant health care and are directed to the public at large, including both expectant mothers and care givers. For example, one Instagram post encourages donations to support the applicant's advocacy:

It’s giving Tuesday! #The NAABB’s advocacy and programming efforts such as, the Black Birthing Bill of Rights, is imperative to ensuring that each Black birthing person knows their rights and to have the tools to confidently exercise these rights during this fearful #COVID19 season and into the future.

The Examining Attorney argued that the phrase is merely informational wording identifying the set of rights promoted by applicant's services. She took particular issue with the fact that the mark will be used by third parties. The Board disagreed.

[T]he fact that at least six other 'Bill of Rights' marks have registered for a variety of services—including one for 'public advocacy to promote awareness of credit, debit and payment card processing practices'—suggests that there is nothing inherently unregistrable about these kinds of marks.

As to third-party use, the Board noted that applicant’s “posting guidelines” for third-party use of the BLACK BIRTHING BILL OF RIGHTS seek to "ensure that the proposed mark will be associated with Applicant’s efforts to promote Black maternal and infant health care."

And so, the Board reversed the refusal to register.

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TTABlogger comment: Interesting application of the "used in the rendering of services" argument.

Text Copyright John L. Welch 2022.