The examining attorney relied on Posthuma and on applicant’s specimen of use, a course flyer, in maintaining that the educational course that applicant offers in connection with the Florida Atlantic University School of Business under the mark PREDICTIVE ENTREPRENEUR “is but one course in a series of other courses (e.g., DISRUPTIVE TECHNOLOGY and HOW TO ESTABLISH FOREIGN BUSINESS), on the broader topic of entrepreneurship, and will be perceived as the title of a single work.” The Board disagreed.
Single creative works include works in which the content does not change, whether that work is in printed, recorded, or electronic form. A theatrical performance is a single creative work because the content of the play, musical, opera, or similar production does not significantly change from one performance to another. In re Posthuma, 45 USPQ2d at 2014; TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) §1202.08(a) (2019).
The Board observed that educational services such as university courses are different from scripted
theatrical performances. In fact, the TMEP specifies that “[l]ive performances by musical bands, television and radio series, and educational seminars are presumed to change with each presentation and, therefore, are not single creative works.” TMEP § 1202.08(b) (emphasis added by the Board).
Applicant Madsen stated, without challenge by the examining attorney, that she has “provided at least seven different lectures for the educational services recited in this application with different subject matter for each lecture relating to the mark Predictive Entrepreneur.” The Board therefore found that the examining attorney failed to meet her burden of proof.
And so the Board reversed the refusal.
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TTABlog comment: Noted trademark guru David Perslack recently said to me, “I haven’t seen so many failure-to-functions in such a short time since my honeymoon.”
Text Copyright John L. Welch 2019.