The Board cited its recent ruling in In re Rainier Ent., 2019 USPQ2d 463361, *3 (TTAB 2019): “because Applicant failed to address the [specimen refusal] both before the Examining Attorney and in its appeal brief, dismissal of the appeal is appropriate.”
As to the specimen refusal, applicant submitted the specimen shown above, which displays the FINLISTICS CLIENTIQ mark. However, “it is not clear what services are being promoted. There is a reference to delivery of ‘facts, figures and forecasts to make a strong business case and show value throughout the buyer’s journey,’ but that statement is too ambiguous to support the recitation ….”
[W]e read the application as referring to software used via the Internet to provide business consultation services that include the specific types of actions listed above. The specimen makes no direct mention of software for taking any of these actions, though it does suggest that at least some type of analysis will be performed. The specimen refers in only the most general way to the services identified in the application. That is not sufficient.
The Board deemed the specimen “too vague to constitute a valid service mark use in the advertising or promotion of the services.” It further found that the specimen fails to show that the services were actually being rendered when the application was filed. “Advertising of services constitutes trademark use only if the services are being rendered at the time. Couture, 113 USPQ2d at 2044. The specimen fails to show whether any services were actually rendered on or before the filing date of the application, and therefore, it is insufficient to support this use-based application.”
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TTABlog comment: I think one would have to say that the discussion of the specimen issue was mere dictum. So of what value is nonprecedential dictum?
Text Copyright John L. Welch 2020.