Film E.C. Net

Trademark Trial and Appeal Board

Jul 10, 2009

No. 76448429 (T.T.A.B. Jul. 10, 2009)

Mailed:
10 July 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Film E.C. Net
________

Serial Nos. 76448428 and 76448429
_______

Jill M. Pietrini of Manatt, Phelps & Phillips, LLP for Film
E.C. Net.

Heather D. Thompson, Trademark Examining Attorney, Law
Office 109 (Dan Vavonese, Managing Attorney).
_______

Before Quinn, Drost, and Bergsman, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On September 11, 2002, applicant Film E.C. Net, a
Nevada corporation, filed two intent-to-use applications to
register the mark EMPOWER PRODUCTION MANAGEMENT SYSTEMS in
typed or standard character form on the Principal Register
for:
No. 76448428:
Administration of business payroll for others; and
employment hiring, recruiting, placement, and staffing
in Class 35.

Consulting services in the production of motion
pictures, television programs, documentaries, music
videos, live stage productions, commercials,
government films, industrial films, and military
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. Nos. 76448428 and 76448429

2
films; and entertainment event planning and scheduling
in Class 41.

No. 76448429:
computer software for tracking and facilitating the
production of motion pictures, television programs,
documentaries, music videos, and other entertainment
events or programs, scheduling events, paying
employees and consultants, and contacting potential
employees and consultants therefor in Class 9.

Subsequently, applicant filed Statements of Use that
allege November 2002 as the dates of first use anywhere and
first use in commerce for all the classes. The
applications also disclaim the words “Production Management
Systems.”
The examining attorney has refused registration on the
ground that “the specimens fail to show use of EMPOWER
PRODUCTION MANAGEMENT SYSTEMS for the applicant’s
services.” ‘428 Brief at unnumbered p. 9 and ‘429 Brief at
unnumbered p. 10 (“for the applicant’s software goods”).
See 15 U.S.C. §§ 1051, 1052, 1053, and 1127; 37 CFR §§ 2.56
and 2.88. We have set out the service mark specimens from
Serial No. 76448428. We have chosen to include the
specimens that applicant submitted with its requests in
both applications for reconsideration (p. 1) that applicant
describes as “a complete display of Applicant’s website.”
The examining attorney agrees that these specimens “are
more legible copies of the webpage excerpts filed with the
Ser. Nos. 76448428 and 76448429

3
Statement of Use.” ‘428 Brief at 2. See also ‘429 Brief
at 2.
First page:

Second page:

Applicant also submitted the following substitute
specimen in both applications:
Ser. Nos. 76448428 and 76448429

4

Some uses of applicant’s mark in the text of the
document (emphasis in original) follow:
EMPOWER is the developer, licensor and distributor of
the EMPOWER PRODUCTION MANAGEMENT SYSTEM, a powerful,
new software solution that will:
Streamline arcane and primitive film and
television production management processes… [p.2]

EMPOWER’s production management system will serve the
unique challenges of entertainment production now…
[p.6]

Each of these markets is maturing, and the demand is
growing for sophisticated, complex and higher-budget
films. All of these films and TV centers will benefit
from EMPOWER’s production management features. [p.7]

The specimens submitted for the trademark in Serial
No. 76448429’s statement of use are:

The specimens in the ‘429 application are similar to
the ‘428 specimens.
Ser. Nos. 76448428 and 76448429

5
Because the issues and evidence are similar, we have
chosen to issue one opinion that addresses applicant’s two
applications.
Arguments
The examining attorney argues that the “latter
specimen [the Executive Summary] clearly conveys the fact
that applicant is primarily a software development company
whose proposed mark EMPOWER PRODUCTION MANAGEMENT SYSTEMS
serves to describe a software tool. A business summary
sent to potential investors is provisionally lacking as a
specimen and in this case, only reinforces the promotional
nature of the webpage evidence.” ‘428 Brief at 3-4. See
also ‘429 Brief at 4-5 (“The language of both the webpage
excerpts and Executive Summary is descriptive and
laudatory, but provides no indication that the mark is
actually in use for the software. That is, the webpage
simply answers the general question about the applicable
field and the context of use… The Executive Summary speaks
in terms of what the software solution will do”).
Applicant maintains that its “webpage prominently
features Applicant’s mark and clearly identifies
Applicant’s services, particularly Applicant’s ability to
streamline ‘the production of entertainment content’ so
productions are ‘more efficient and cost effective.’ The
Ser. Nos. 76448428 and 76448429

6
webpage then identifies the contact information for
Applicant, and lists email address links pertaining to both
general information and sales. Similarly, the Executive
Summary prominently and repeatedly features Applicant’s
mark, and clearly identifies Applicant’s services
throughout its corpus.” ‘428 Brief at 8 (emphasis
omitted). Regarding the trademark specimen, applicant
argues that its “webpage specimen should be accepted as a
point-of-sale display.” ‘429 Brief at 7. “Applicant’s
website clearly provides a means of ordering Applicant’s
computer software. Most importantly, Applicant’s website
expressly includes a link to an email address entitled
‘sales@empowerproduction.com.’” Id. at 9.
Discussion
Service Mark Specimens (the ‘428 application)
The Trademark Act provides that a service mark is “any
word, name, symbol, or device, or any combination thereof—
(1) used by a person, or
(2) which a person has a bona fide intention to use in
commerce and applies to register on the principal register
established by this chapter,
to identify and distinguish the services of one person….”
15 U.S.C. § 1127. “It is not enough for the applicant to
be a provider of services; the applicant also must have
used the mark to identify the named services for which
registration is sought.” In re Advertising & Marketing
Ser. Nos. 76448428 and 76448429

7
Development Inc., 821 F.2d 614, 2 USPQ2d 2010, 2014 (Fed.
Cir. 1987).
Trademark Act § 1(a)(1) (15 U.S.C. § 1051(a)(1))
requires an applicant who is the owner of a trademark used
in commerce to file “such number of specimens or facsimiles
of the mark as used as may be required by the Director.”
The Office currently requires the submission of one
specimen for use-based applications (37 CFR § 2.56(a)).
“To show service mark usage, the specimen must show use of
the mark in a manner that would be perceived by potential
purchasers as identifying the applicant’s services and
indicating their source.” TMEP § 1301.04(a) (5th ed. rev.
September 2007). See also 37 CFR § 2.56(b)(2) (“A service
mark specimen must show the mark as actually used in the
sale or advertising of the services”).
The requirement that a mark must be “used in the sale
or advertising of services” to be registered as a
service mark is clear and specific. We think it is
not met by evidence which only shows use of the mark
as the name of a process and that the company is in
the business of rendering services generally, even
though the advertising of the services appears in the
same brochure in which the name of the process is
used. The minimum requirement is some direct
association between the offer of services and the mark
sought to be registered therefor.

In re Universal Oil Products Co., 476 F.2d 653, 177 USPQ
456, 457 (CCPA 1973) (emphasis added).
Ser. Nos. 76448428 and 76448429

8
This association must be between the mark and the
actual services for which applicant is seeking
registration. In re wTe Corp., 87 USPQ2d 1536, 1542 (TTAB
2008) (“[W]hile the specimen may suggest that applicant is
providing some type of goods or services, it is not at all
clear from applicant’s specimen… that it is providing the
specific service for which it seeks registration”). See
also In re Monograms America Inc., 51 USPQ2d 13317, 1319
(TTAB 1999) (“While these notations might be interpreted as
an indication that this is an association or ‘network’ of
‘embroidery stores,’ there is no indication as to the
purpose or activities of this association. There is no
reference whatsoever to any type of consultation service,
even in the area of monogramming per se, much less in the
management of, or advertising for, the stores offering this
monogramming”).
Here, the original service mark specimens (including
the more complete specimen that applicant submitted in its
request for reconsideration) refer to “The Industry’s First
Real Time Production Management Tool.” In addition, the
specimen contains the following sentences: “EMPOWER
PRODUCTION MANAGEMENT SYSTEM is the developer, licensor and
distributor of EMPOWER, a powerful, new software system
that makes the production of entertainment content more
Ser. Nos. 76448428 and 76448429

9
efficient and cost-effective. EMPOWER’s production
management system will serve the unique challenges of
entertainment content….” None of these references refer to
the services in the application. One use refers to Empower
Production Management Systems as “the developer, licensor
and distributor,” which is a reference to applicant,
perhaps as a trade name, not to the services. Other times
the specimens use the term “tool” and “a software system,”
which appear to refer to goods and not services. Applicant
argues that:
Much like the situation described above in [In re
Ancor Holdings LLC, 79 USPQ2d 1218 (TTAB 2006)],
Applicant is clearly rendering services under the
mark, even though these services rely upon software…
Applicant’s perspective customers presumably would be
seeking Applicant’s business “tool” to revive the
benefit of these services. Thus, similar to the use
of the term in Ancor Holdings, Applicant’s use of the
term “tool” is likely perceived by purchasers to refer
to administrative and consultative services offered by
Applicant.

Brief at 10.

The facts in Ancor Holdings are significantly
different from the present facts. In that case, the
applicant’s specimens clearly invited potential customers
to its website to use its services. 79 USPQ2d at 1221
(“The fact that the word ‘tool’ appears on the specimen
does not automatically associate the mark with computer
software. Although it may well be software that is
Ser. Nos. 76448428 and 76448429

10
generating the reminders and scheduling, in today’s
commercial context if a customer goes to a company’s
website and accesses the company’s software to conduct some
type of business, the company may be rendering a service,
even though the service utilizes software”). In the
present case, applicant’s specimens do not invite customers
to use its services at its website. If anything, they
refer to a “software system” and the term “tool” would be
perceived as a reference to that software that applicant
intends to distribute.
The last page of the original specimen simply includes
the term EMPOWER PRODUCTION MANAGEMENT SYSTEMS and contact
information. Interestingly, the contact information
mailing address only includes two lines, one for the street
and the other for the city, state, and zip code. No
company name is given, which would lead many potential
purchasers to assume that “Empower Production Management
Systems” is the trade or company name of the entity. This,
of course, is consistent with how applicant referred to
Empower Production Management Systems as a “developer,
licensor and distributor.”
The substitute specimen (the Executive Summary at 2)
again refers to Empower as “the developer, licensor, and
distributor of the “EMPOWER PRODUCTION MANAGEMENT SYSTEM, a
Ser. Nos. 76448428 and 76448429

11
powerful, new software solution.” We agree with the
examining attorney’s conclusion that “[t]here are no
references to services in this detailed Executive Summary,
and no indications that the Applicant is itself providing
either of the services in Classes 35 or 41.” Brief at 7.
As the examining attorney explained:
The following language appears on the specimen, from
the Executive Summary:

- development of system upgrades and future releases
(p. 5)
- offering Release 1.0, Release 2.0. and beta testing
of the product (p. 3)
- indicating that Empower’s product specification
[has] been fully validated by industry experts and are
ready for market once product coding and QA are
completed (p. 3)
- simultaneous use [of the software] by an unlimited
number of authorized uses (p. 8)

There are no references to services in this detailed
Executive Summary, and no indication that the
Applicant is itself providing either of the services
identified in Classes 35 or 41.

Id.
In addition, the Executive Summary itself is not a
valid specimen of service mark usage because it appears to
be designed for investors and it discusses future marketing
efforts. In re Port Authority of New York, 3 USPQ2d 1453,
1455 (TTAB 1987)(“The use of a mark in connection with
advertising, promotion and preparatory activities for
services to be available at some time in the future cannot
Ser. Nos. 76448428 and 76448429

12
support registration.”). The cover of the specimen, which
is marked “Confidential,” specifically indicates that:
“This document contains forward-looking statements which
are contingent upon the receipt of adequate investor
funding… This document is transmitted by the management of
EMPOWER LLC only to qualified investment candidates and is
not intended for redistribution or publication.”
Therefore, even if there was an association between the
mark and the identified services this would not be a good
service mark specimen. Intermed Communications, Inc. v.
Chaney, 197 USPQ 501, 507 (TTAB 1977):
Even if we accept applicant’s contention that one
thousand copies of the Progress Report dated February
6, 1975 were mailed out prior to the filing date of
the application, there would still have been no public
use of the mark prior to the filing date because the
Progress Report did not even mention the services
identified in the application. A specimen which shows
an alleged mark but which makes no reference to the
services offered or performed thereunder is not
evidence of service mark use. Furthermore, the
mailing was not directed to prospective users of those
services but, if anything, was a solicitation to
prospective donors of money to enable the Dooley
Foundation to offer those services. Although the
definition of use of a service mark in Section 45 of
the Trademark Act is less concrete than the definition
of use of a trademark, it is nonetheless clear that,
at the very least, there must be an open and notorious
public offering of the services to those for whom the
services are intended.

Applicant argues that its specimen “will be perceived
by the relevant purchasers as identifying Applicant’s
Ser. Nos. 76448428 and 76448429

13
services” and that the “Office must take a flexible
approach to the acceptance of specimens.” Brief at 5 and
10). “To determine what the perception of a term is, we
must look to the specimens of record which show how the
term is used in the marketplace.” In re Walker Research,
Inc., 228 USPQ 691, 692 (TTAB 1986). In this case, the
evidence does not support applicant’s argument. See, e.g.,
Specimen (“EMPOWER PRODUCTION MANAGEMENT SYSTEM is the
developer, licensor and distributor of EMPOWER, a powerful,
new software system”). As the Ancor Holdings case
explained: “[W]e must base our determination of public
perception of applicant’s mark on the manner of use of [the
mark] in the advertising which has been submitted as a
specimen. Further, we must make that determination within
the current commercial context, and, in doing so, we may
consider any other evidence of record bearing on the
question of what impact applicant’s use is likely to have
on purchasers and potential purchasers.” 79 USPQ2d at 1220
(internal quotation marks omitted). Even if there was some
evidence that applicant is offering services under its
mark, it would not relieve applicant of the requirement to
show that it “used the mark to identify the named services
for which registration is sought.” Advertising & Marketing
Ser. Nos. 76448428 and 76448429

14
Development, 2 USPQ2d at 2014. Applicant’s evidence does
not do this.
With the specimens of record, there is simply no
direct association between the mark EMPOWER PRODUCTION
MANAGEMENT SYSTEMS and applicant’s business payroll
administration and employment hiring, recruiting,
placement, and staffing services and consulting services.
In re DSM Pharmaceuticals Inc., 87 USPQ2d 1623, 1625-26
(TTAB 2008) (“[T]he term LIQUIDADVANTAGE in this specimen
clearly refers to a proprietary software by that name.
Nowhere does the specimen show a direct association between
use of the proposed LIQUIDADVANTAGE mark and ‘custom
manufacturing of pharmaceuticals featuring liquid fill and
finish technology’… [E]very description and explanation of
LIQUIDADVANTAGE on the specimen refers to the capabilities
and the purported advantages of the LiquidAdvantage
software alone”).
Therefore, we affirm the examining attorney’s refusal
to register applicant’s mark in Serial No. 76448248 on the
ground that it does not demonstrate use of the mark as a
service mark for the identified services.

Ser. Nos. 76448428 and 76448429

15
Trademark Specimens (the ‘429 application)
Next, we look at whether the specimen in the ‘429
application demonstrate use of the mark for the goods
identified in the ‘429 application. The examining attorney
maintains that the “the webpage simply answers the general
question about the applicable field and the context of use”
and the Executive Summary “does not demonstrate actual use
on or in connection with the goods.” Brief at 4-5.
Applicant argues that its webpage is a point-of-sale
display and that “specimens should be accepted because the
nature of Applicant’s goods makes the submission of more
traditional specimens impractical.” Brief at 5.
For goods, a “mark shall be deemed to be in use in
commerce … [when] it is placed in any manner on the goods
or their containers or the displays associated therewith or
on the tags or labels affixed thereto … [and] the goods are
sold or transported in commerce.” Trademark Act Section
45, 15 U.S.C. § 1127.
Implementing this statutory provision, Trademark Rule
2.56(b)(1) (37 CFR § 2.56(b)(1)) currently provides that:
A trademark specimen is a label, tag, or container for
the goods, or a display associated with the goods.
The Office may accept another document related to the
goods or the sale of the goods when it is
impracticable to place the mark on the goods,
packaging for the goods, or displays associated with
the goods.
Ser. Nos. 76448428 and 76448429

16
In a case discussing the display of the mark for
software, the board noted that:
We find that software providers may make products
available through downloading or by distributing CD-
ROMS. Use of applicant’s mark in conjunction with
such procedures would clearly qualify as use on the
goods. It is not uncommon for a software provider to
display its product marks or relevant corporate logos
on computerized images created by distributed
software, or on the website page where licensed users
are given authorized access to the software product.
In either of these cases, an applicant would simply
submit to the Office a screen-print from the
appropriate access screen. Moreover, if applicant
actually ships blank, multi-layered CD-ROM’s to
pressing houses, one could use the mark on inserts
associated with the goods, or the shipping labels
could easily be designed with applicant’s product
marks or relevant corporate logos. Hence, based on
this entire record, we find that it is not
impracticable, in this case, for applicant to have
chosen to do any of these things.

In re Settec Inc., 80 USPQ2d 1185, 1190 (TTAB 2006).
Here, applicant has simply not submitted evidence to
demonstrate why it is not possible to use its mark on its
software in a more traditional manner.
If applicant is asserting that the nature of its
product precludes it from creating a display
associated with the goods that satisfies the
requirements of the Trademark Act… then applicant may
not be able to rely on a display associated with the
goods as its evidence of trademark use, but rather
would have to submit evidence of a different manner of
use. Applicant’s apparent recognition that its
webpage does not comply with the requirements for a
display associated with the goods only reinforces our
own conclusion that it is not acceptable.

In re Genitope Corp., 78 USPQ2d 1819, 1822 (TTAB 2006).
Ser. Nos. 76448428 and 76448429

17
Turning next to the point-of-sale issue, the TMEP sets
out factors for examining attorneys to consider when
determining whether webpages are point-of-sale displays.
“Displays associated with the goods essentially comprise
point-of-sale material, such as banners, shelf-talkers,
window displays, menus and similar devices.” TMEP
§ 904.03(g) (5th ed. rev. September 2007).
A website page that displays a product, and provides a
means of ordering the product, can constitute a
“display associated with the goods,” as long as the
mark appears on the web page in a manner in which the
mark is associated with the goods, and the web page
provides a means for ordering the goods. The
Trademark Trial and Appeal Board has held that web
pages that display goods and their trademarks and
provide for online ordering of such goods are, in
fact, electronic displays which are associated with
the goods. Such uses are not merely advertising,
because in addition to showing the goods, they provide
a link for ordering the goods. In effect, the website
is an electronic retail store, and the web page is a
shelf-talker or banner which encourages the consumer
to buy the product. A consumer using the link on the
web page to purchase the goods is the equivalent of a
consumer seeing a shelf-talker and taking the item to
the cashier in a store to purchase it. The web page
is thus a point of sale display by which an actual
sale is made. In re Dell Inc., 71 USPQ2d 1725 (TTAB
2004).
However, an Internet web page that merely provides
information about the goods, but does not provide a
means of ordering them, is viewed as promotional
material, which is not acceptable to show trademark
use on goods. See In re Genitope Corp., 78 USPQ2d
1819, 1822 (TTAB 2006) (“[T]he company name, address
and phone number that appears at the end of the web
page indicates only location information about
applicant; it does not constitute a means to order
goods through the mail or by telephone, in the way
Ser. Nos. 76448428 and 76448429

18
that a catalog sales form provides a means for one to
fill out a sales form or call in a purchase by
phone.”).

TMEP § 904.03(i). See also TMEP § 904.03(h):
Accordingly, examining attorneys may accept any
catalog or similar specimen as a display associated
with the goods, provided: (1) it includes a picture of
the relevant goods; (2) it shows the mark sufficiently
near the picture of the goods to associate the mark
with the goods; and (3) it includes the information
necessary to order the goods (e.g., an order form, or
a phone number, mailing address, or e-mail address for
placing orders). However, the mere inclusion of a
phone number, Internet address and/or mailing address
on an advertisement describing the product is not in
itself sufficient to meet the criteria for a display
associated with the goods. There must be an offer to
accept orders or instructions on how to place an
order.

The board has held that “[w]eb pages which display
goods and their trademarks and provide for the on-line
ordering of such goods are, in fact, electronic displays
associated with the goods. Such uses are not merely
advertising because in addition to showing the goods and
features of the goods, they provide a link for ordering the
goods.” Dell, 71 USPQ2d at 1727.
In In re Valenite Inc., 84 USPQ2d 1346, 1348 (TTAB
2007), the board found that the following webpage described
as follows was acceptable as a specimen:
the webpage contains a link to an online catalog, and,
under the heading “Service and Support,” toll free
phone numbers and web links to customer service,
technical support and “an instant link [via the “Go
ValPro” button] to our Technical Resource Center.”
Ser. Nos. 76448428 and 76448429

19
In the present case, applicant’s webpage specimens of
record contain the following information:
The Industry’s First Real Time Production Management
Tool

What is Empower
EMPOWER PRODUCTION MANAGEMENT SYSTEM is the developer,
licensor and distributor of EMPOWER, a powerful, new
software system that makes production of entertainment
content more efficient and cost-effective.

Empower News
Check here for upcoming announcements of the
availability of the EMPOWER system.

Value Proposition
Empower’s production management system will serve the
unique challenges of entertainment content production
now, when industry profit margins are shrinking
dramatically, and the pressure to reduce costs is more
intense than ever before.

Here, applicant’s specimen does not contain any
information normally associated with ordering products via
the telephone or the Internet as in Dell or Valenite. For
instance, there is no sales form, no pricing information,
no offers to accept orders, and no special instructions for
placing orders anywhere on the specimen. At best,
applicant’s specimen has included an email address for
“sales@empowerproduction.com.”
The simple fact that potential customers can send an
email to “sales” does not convert an ordinary advertising
display into a display associated with the goods. By
definition, advertising means “to announce or praise (a
Ser. Nos. 76448428 and 76448429

20
product, service, etc.) in some public medium of
communication to induce people to buy or use it.” The
Random House Dictionary of the English Language
(unabridged) (2d ed. 1987) (emphasis added). We take
judicial notice of this definition. University of Notre
Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594,
596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed.
Cir. 1983). Therefore, to be more than mere advertising, a
display associated with the goods must do more than simply
promote the goods and induce people to buy them; that is
the purpose of advertising in general. The specimen must
not only show a picture of the goods in close proximity to
the mark, but it must be “calculated to consummate a sale.”
In re Bright of America, Inc., 205 USPQ 63, 71 (TTAB 1979).
See also In re Osterberg, 83 USPQ2d 1220, 1224 (TTAB 2007)
(A “list of distributors and a link to their websites” was
not sufficient to make the webpage a display associated
with the goods). A simple email address or phone number is
not sufficient to do this and adding the word “sales” to
the email address does not establish that the advertising
is now a point-of-sales display.
The specimens submitted by the applicant do not
include a sales form, a price for the goods, or any of
the other information normally associated with
ordering goods via phone or mail. A phone number, an
Internet address and a mailing address are included
Ser. Nos. 76448428 and 76448429

21
but no offers to accept orders or special instructions
on placing orders appear anywhere on the specimens.
The applicant argues that the inclusion of computer
system requirements shows that the specimens are to be
used to order the goods. Many different manufacturers
of consumer goods routinely provide performance
characteristics and/or statistical data about the use
and abilities of their goods in their advertisements.
Such advertisements, even when including a phone
number and/or mailing address for the manufacturers of
such … goods [,] would not be perceived by consumers
as catalogs. Consumers would view such materials
merely as informational advertisements, just as they
would view the applicant’s specimens. Thus the
specimens do not contain adequate information for
routinely and easily placing orders for the goods.
Proper catalogs would contain such information.

In re MediaShare Corp., 43 USPQ2d 1304, 1306 (TTAB 1997)
(quoting the examining attorney with approval).
Applicant’s webpage contains little actual information
about applicant’s goods and it is not clear how the goods
would be routinely and easily ordered through the website
as the Dell and Valenite specimens did. While the use of
the email address may eventually result in sales, it
appears to be no more calculated to do so then any
corporate contact email address or phone number that would
result in the call or email being referred to the sales
office.
The examining attorney also points out that “neither
the webpages nor Executive summary includes a picture of
applicant’s software tool, in use or otherwise.” Brief at
7. See TMEP § 904.03(h). We agree. Applicant’s specimens
Ser. Nos. 76448428 and 76448429

22
fail to include such a picture and therefore do not meet
the definition of a point-of-sale display. Furthermore,
applicant’s Executive Summary, as discussed previously, is
on its face directed to investors and not potential
customers. It would be an offer to induce people to invest
in the company as opposed to a display used in association
with the sale of applicant’s goods.
Thus, we conclude that applicant’s specimens do not
show use of the mark as a trademark for the identified
goods.
Decision: The examining attorney’s refusals to
register the term EMPOWER PRODUCTION MANAGEMENT SYSTEMS as
a service mark for the services in Serial No. 76448428 and
as a trademark for the goods in Serial No. 76448429 on the
ground that the specimens fail to show that the mark is
used as a service mark and trademark for the identified
goods and services are affirmed.