TTAB Affirms Refusal of CONCRETE PORN for Advertising Services Due to Inadequate Specimen of Use
The Board upheld a refusal to register the proposed mark CONCRETE PORN for "Advertising services, namely, providing a website for the promotion of concrete services and designs of others," finding that applicant's specimen of use failed to show a direct association between the mark and the recited services. In re SlurryMonster, LLC, Serial No. 90513717 (December 20, 2023) [not precedential] (Opinion by Judge Cheryl S. Goodman).
Applicant described its seven-page specimen as a "website showing use of the services." The first page displays the proposed mark CONCRETE PORN and describes the website as a Facebook "community." It states that the website is a place for posting "pictures of your finished art with your company information so we can all support each others [sic] work … if you post pictures, post the contractor." Other pages display photographs about third-party concrete projects, with contract information about the creator. Applicant argued that "community members . . . post pictures of their or others’ work as advertisements."
Applicant is hosting a sub forum that allows third parties to post photographs and contact information relating to completed concrete projects. By Applicant’s own explanation of its services, it is merely hosting, moderating, and administering a community. It is not posting or creating the posts on the forum on behalf of others but is allowing the posting by third parties who are providing the information. While it may be that third parties can post pictures and contact information, that is tantamount to those third parties advertising their own services and does not amount to Applicant providing advertising services for them. Again, Applicant is merely the moderator and administrator of a community group. Thus, Applicant is not providing the advertising service on behalf of third parties but is simply providing a means for third parties to post their own photographs and contact information.
The Board concluded that CONCRETE PORN is not used in direct association with "advertising services, namely, providing a website for the promotion of concrete services and designs of others," and so it affirmed the refusal to register under Sections 1 and 45 of the Trademark Act.
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TTABlogger comment: I'm not convinced. Applicant is providing the services that the application recited: providing a website . . . .
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 12/27/2023
3 comments
3 Comments:
It appears the applicant providing the services via a sub forum where forum members post the information (not the applicant). There are hundreds of "genericterm"/porn sub Reddits (e.g., F1porn) which are sub forums where members post images of the "genericterm". Is a sub forum a website?
The ID Manual includes "Providing a website featuring on-line classified advertisements in the field of {indicate the field or subject matter of the classified advertisements, e.g., construction equipment, construction materials, etc.}" Could they have just amended the description of services?
How is that different from creating a generic-looking business website using templates on WIX?
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