Momentum Insights, Inc.

Trademark Trial and Appeal Board

Sep 2, 2011

No. 77815534 (T.T.A.B. Sep. 2, 2011)

Mailed: September 2, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Momentum Insights, Inc.
________

Serial No. 77815534
_______

C. Brandon Browning of Maynard Cooper & Gale PC for
Momentum Insights, Inc.

Ramona Ortiga Palmer, Trademark Examining Attorney, Law
Office 117 (Brett Golden, Managing Attorney).
_______

Before Bucher, Cataldo, and Lykos,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Momentum Insights, Inc. has filed application Serial
No. 77815534 to register on the Principal Register under
Section 1(b) of the Trademark Act the mark FRIENDS & FAMILY
REWARDS PROGRAM in standard characters (“REWARDS PROGRAM”
disclaimed) for “on-line web site that enables business
management, tracking and registration of referral sources
in the field of motor vehicle sales” in International Class
35.
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser. No. 77815534
2
The trademark examining attorney has refused
registration under Section 2(e)(1) of the Trademark Act on
the ground that applicant’s mark is merely descriptive of a
feature or quality of applicant’s services.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed main briefs on
the issue under appeal.
Evidentiary Issues
Before turning to the substantive ground for refusal,
we note that applicant has submitted 15 exhibits with its
brief. Exhibits 1-9 consist of materials that previously
were made of record by applicant during prosecution of the
involved application, namely, printouts of third-party
registrations from the United States Patent and Trademark
Office (USPTO) Trademark Electronic Search System (TESS).
As such, the materials comprising Exhibits 1-9 are at best
duplicative and cumulative of evidence timely made of
record, and thus need not and should not be resubmitted.
See, e.g., Life Zone, Inc. v. Middleman Group, Inc., 87
USPQ2d 1953 (TTAB 2008).
Exhibits 10-15 consist of “true and correct copies of
the specimens printed from the Trademark Office TDR system”1

1 Applicant’s brief, p. 9.
Ser. No. 77815534
3
for six of the above noted third-party registrations
“illustrating trademarks which are not merely descriptive”2
(emphasis in original). However, exhibits 10-15 were not
previously made of record during examination of the
involved application. The examining attorney neither
objected to exhibits 10-15 nor did she address them in her
brief or otherwise treat them as being of record.3
Trademark Rule 2.142(d) provides the following:
The record in the application should be
complete prior to the filing of an
appeal. The Trademark Trial and Appeal
Board will ordinarily not consider
additional evidence filed with the
Board by the appellant or by the
examiner after the appeal is filed.
After an appeal is filed, if the
appellant or the examiner desires to
introduce additional evidence, the
appellant or the examiner may request
the Board to suspend the appeal and to
remand the application for further
examination.

The Board may consider evidence submitted after appeal
despite its untimeliness, if the non-offering party (1)
does not object to the evidence and (2) discusses the
evidence or otherwise treats it as being of record. See
TMEP §710.01(c) (7th ed. 2010); and TBMP §1207.03 (3rd ed.
2011) and the cases cited therein. Because applicant did

2 Id.
3 In her brief, the examining attorney discussed the third-party
registrations comprising exhibits 1-9, but not the asserted
specimens comprising exhibits 10-15.
Ser. No. 77815534
4
not request that the Board suspend the appeal and remand
the application for further examination and because the
examining attorney did not discuss the late-filed exhibits
10-15 or otherwise treat them as being of record, we do not
give this evidence any consideration.4
Issue on Appeal
As noted above, the issue on appeal in this case is
whether applicant’s mark, FRIENDS & FAMILY REWARD PROGRAM,
merely describes a function, feature or characteristic of
the services recited in the involved application.
Applicant contends that its FRIENDS & FAMILY REWARDS
PROGRAM mark is suggestive because “the phrase can create,
in the minds of consumers, a multitude of meanings, and
none of these meanings immediately tell consumers [what]
applicant’s services are….”5 Applicant further argues that
it is not a retailer and its services “are not a rewards
program”6 but rather “include providing an on-line web site
to motor vehicle dealerships that enables the dealerships
to manage, track and register their referral sources.”7
Applicant argues that, as a result, the examining
attorney’s Internet evidence “directed to advertisements by

4 We note in any event that the materials comprising exhibits 10-
15 are not outcome determinative.
5 Applicant’s brief, p. 5.
6 Id. at 6.
7 Id.
Ser. No. 77815534
5
retailers of shutters, tea, [and] water systems of their
various incentive plans is misplaced”8 and that such
evidence does not establish that applicant’s mark merely
describes its services.
As noted above, in support of its arguments applicant
submitted during examination TESS copies of nine use-based,
third-party registrations for marks containing the terms
REWARDS PROGRAM or PROGRAM for various goods and services.
Three are cancelled under Section 8 of the Trademark Act
and thus have no probative value. See Action Temporary
Services Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d
1307, 1309 (Fed. Cir. 1989) (“[A] cancelled registration
does not provide constructive notice of anything”). The
six live registrations, all of which are registered on the
Principal Register without amendment to seek registration
under Trademark Act Section 2(f), are displayed below:
Reg. No. 3403580 ALLERGYREWARDS PROGRAM and design
(PROGRAM disclaimed) for
printed materials, namely, brochures, pamphlets,
leaflets, and booklets featuring health
information about respiratory disorders and
treatments therefor; and

health information services, namely, providing
information on respiratory diseases and disorders
and the treatment of respiratory diseases and/or

8 Id.
Ser. No. 77815534
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disorders to patients, physicians, pharmacists
and other healthcare professionals;

Reg. No. 3221185 STORE AND SCORE! REWARDS PROGRAMS
(REWARDS PROGRAM disclaimed) for
promoting the goods of others by means of a
customer loyalty and incentive award program,
customer incentive award program, namely, a
customer loyalty program that provides
merchandise benefits, discounts or free goods and
services or upgraded services to reward repeat
customers; promotional program to reward customer
loyalty featuring the products of others as
awards;

Reg. No. 3008344 FRIENDSHIP REWARDS PROGRAM (REWARDS
PROGRAM disclaimed) for
referrals in the field of vacation real estate
time-sharing at resorts and hotels through the
administration of a reward program enabling
current customers to obtain benefits;

Reg. No. 1966099 EARN AS YOU LEARN LEARN AS YOU EARN
PROGRAM (PROGRAM disclaimed) for
educational services, namely conducting programs
and courses of instruction at the primary level
designed to enhance skills in all school subjects
and incorporating non-monetary rewards;

Reg. No. 2477382 NORTHERN FRIENDS REWARDS PROGRAM (REWARDS
PROGRAM disclaimed) for
customer loyalty reward program, namely,
promoting the goods and services of retail stores
featuring clothing, footwear, accessories,
jewelry and cosmetics through incentives in the
nature of coupons, the distribution of purchase
points, and discount prices; and

Ser. No. 77815534
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Reg. No. 2535550 PARTNERSHIP REWARDS PROGRAM (REWARDS
PROGRAM disclaimed) for
medical product promotional program namely
promoting medical product sales through an
incentive award program for enrolled product
distributors.

The examining attorney maintains that the mark merely
describes a feature or quality of the services. In support
of the refusal, the examining attorney has made of record
the following dictionary definitions of the terms
comprising applicant’s mark: FRIEND - “one attached to
another by affection or esteem, acquaintance;”9 FAMILY – “a
group of individuals living under one roof and usually
under one head, household;”10 REWARD – “something that is
given in return for good or evil done or received or that
is offered or given for some service or attainment” 11 and
PROGRAM – a system of procedures or activities that has a
specific purpose.”12
The examining attorney further has made of record
advertisements retrieved from Internet commercial and
informational webpages displaying the terms FRIENDS &

9 Merriam-Webster OnLine Dictionary, (2009), merriam-webster.com.
10 Id. We hereby grant the examining attorney’s request to take
judicial notice of this definition, submitted for the first time
with her appeal brief. See In re Red Bull GmbH, 78 USPQ2d 1375,
1378 (TTAB 2006). See also In re IP Carrier Consulting Group, 84
USPQ2d 1028, 1030 n.4 (TTAB 2007).
11 Id.
12 Encarta World English Dictionary, (2009).
Ser. No. 77815534
8
FAMILY REWARDS PROGRM used in connection with various
services. The following examples are illustrative:

Canadian AutoWorld
Referral program spurs sales
Performance Hyundai has been using the Friends
and Family Rewards program for about a year and a
half.
The web-based Friends and Family Rewards program
was launched quietly in 2008 and news is starting
to spread. …
(canadianautoworld.ca)

Friends & Family Program
BONUS REWARDS
Your loyalty deserves exceptional rewards and
recognition – that’s why we designed the Friends
& Family Rewards program. Cruise Direct Online
appreciates your business and the opportunity to
assist you with planning you cruise vacation. We
would like to reward your continued loyalty. For
select cruises, our Friends & Family Travel
Rewards Program rewards up to $500.00 “Cash Back”
for guests who book a cruise with us. …
(cruisedirectonline.com)

Friends & Family Rewards Program
While we know you will find your ownership
rewarding in countless ways, the Friends & Family
Rewards Program makes it even better. By
enrolling (it’s free) you will be eligible for
additional discounts only extended to Friends and
Family Rewards Program members. Additionally,
you can share your ownership experience with your
friends and family while earing Reward Dollars.
It’s fun, free and a win – win opportunity for
everyone!
(breckenridgegrandvacations.com)

PuriTeam’s Friends & Family Rewards Program
Welcome to PuriTeam’s Family and Friends Rewards
Program. You’ve cared enough about your family’s
Ser. No. 77815534
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health to improve your home’s water systems
and/or air quality, so why not spread the word?
If you refer a friend or family member that makes
a purchase at PuriTeam, we’ll send you both a
rebate check in the mail!
(puriteam.com)

Friends and Family Rewards is an exciting program
where customers get paid cash rewards or reward
points, when they refer friends, family members
and associates, that buy a vehicle from your
dealership.
Most dealerships say they use a referral program,
but a quick question, do you have a system for
managing these valuable prospects that has the
potential of generating over 30% of your
sales…profitably?
Thorough step-by-step training on this system
guides your sales people through the process and
generates confidence that translates into
profitable referral selling.
(friendsandfamilyrewards.com)

In addition, the examining attorney has made of record
summaries of the results of her search of “FRIENDS & FAMILY
REWARDS PROGRAM and “FRIENDS & FAMILY REWARDS” on the
GOOGLE search engine. However, we find that these
summaries are of very limited probative value. First, the
results summaries are truncated to such an extent that they
contain insufficient information upon which we may
ascertain the nature of the use, if any, of the terms
comprising applicant’s involved mark. Truncated results
from search engines are entitled to little weight. In re
Ser. No. 77815534
10
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1833 (Fed. Cir. 2007):
Bayer asserts that the list of GOOGLE search
result summaries is of lesser probative value
than evidence that provides the context within
which a term is used. We agree. Search engine
results—which provide little context to discern
how a term is actually used on the webpage that
can be accessed through the search result link—
may be insufficient to determine the nature of
the use of a term or the relevance of the search
results to registration considerations.

Similarly, in this case the proffered Google search
summaries do not provide sufficient context for us to
discern the extent to which the use of FRIENDS & FAMILY
REWARDS PROGRAM or FRIENDS & FAMILY REWARDS is trademark
use or otherwise is relevant to our determination of the
descriptiveness thereof.
Second, even with the limited context provided in the
search summaries, it is clear that most uses of FRIENDS &
FAMILY REWARDS PROGRAM are in connection with goods or
services unrelated to the services at issue herein. As a
result, the search summaries are not particularly useful as
evidentiary support for the refusal to register
It is well settled that a term is considered to be
merely descriptive of goods and/or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality, feature or
Ser. No. 77815534
11
characteristic thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods and/or services. See Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052. See also In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
It is not necessary that a term describe all of the
properties or functions of the goods and/or services in
order for it to be considered to be merely descriptive
thereof; rather, it is sufficient if the term describes a
significant attribute or feature about them. Moreover,
whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods and/or services
for which registration is sought. See In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). Thus, “[w]hether consumers
could guess what the product is from consideration of the
mark alone is not the test.” In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985).
In the instant case, the evidence made of record by
the examining attorney is insufficient to support a finding
that, as applied to applicant’s services, the mark FRIENDS
& FAMILY REWARDS PROGRAM would immediately describe,
without conjecture or speculation, a significant
characteristic or feature of an “on-line web site that
enables business management, tracking and registration of
Ser. No. 77815534
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referral sources in the field of motor vehicle sales.”
We agree with the examining attorney that excerpts
from articles taken from the Internet may be competent
evidence in an ex parte proceeding of how a mark may be
perceived by the public. See In re Fitch IBCA, Inc., 64
USPQ2d 1058 (TTAB 2002). In this case, however, the sole
instance in which FRIENDS & FAMILY REWARDS PROGRAM clearly
is used in connection with an automobile sales referral
program comes from an article posted on a Canadian auto
sales website concerning a St. Catherine’s, Ontario auto
dealer. There is nothing in the record to indicate either
that the service discussed therein is available in the
United States or that consumers in the United States are
familiar with the use of FRIENDS & FAMILY REWARDS PROGRAM
as applied to applicant’s services. See, for example, In
re Consolidated Cigar Corp., 13 USPQ2d 1481 (TTAB 1989).
The remaining Internet articles use various permutations of
FRIENDS & FAMILY REWARDS PROGRAM in connection with a
number of services unrelated to those identified in the
involved application.
The dictionary definitions of record support a finding
that FRIENDS & FAMILY REWARDS PROGRAM describes a system of
procedures for the purpose of giving to members of a
household or those attached by esteem or affection
Ser. No. 77815534
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something in return for some service or attainment. That
is to say, the mark merely describes a program of rewards
for friends and family. However, as applicant notes, its
services are not a rewards program. Rather, applicant
provides an Internet website enabling a user to manage,
track and register sources of referrals of automobile
sales. Its disclaimer of REWARDS PROGRAM notwithstanding,
the terms comprising applicant’s mark do not, as defined,
merely describe the services identified thereby. Such
definitions, while perhaps suggesting a characteristic of
applicant’s services, do not immediately describe such a
characteristic or feature thereof. Thus, the dictionary
definitions, even viewed in the context of the Internet
evidence, fail to support a finding that FRIENDS & FAMILY
REWARDS PROGRAM merely describes the identified services.
The third-party registrations submitted by applicant
are of little help in determining the registrability of the
mark at issue in this case. The third-party registrations
tend to support its position that the USPTO has registered
a number of marks containing the disclaimed terms REWARDS
PROGRAM or PROGRAM. However, the registrations provide
little support for registration of applicant’s involved
mark. Further, and as often noted by the Board, each case
must be decided on its own set of facts, and we are not
Ser. No. 77815534
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privy to the facts involved with these registrations. In
re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566
(Fed. Cir. 2001) [“Even if prior registrations had some
characteristics similar to [applicant’s] application, the
PTO’s allowance of such prior registrations does not bind
the Board or this court.”] See also In re Best Software
Inc., 58 USPQ2d 1314 (TTAB 2001).
In short, the evidence submitted by the examining
attorney falls somewhat short of demonstrating that FRIENDS
& FAMILY REWARDS PROGRAM merely describes a feature or
characteristic of applicant’s recited services.
Finally, if doubt exists as to whether a term is
merely descriptive, it is the practice of this Board to
resolve doubts in favor of the applicant and pass the
application to publication. See In re Gourmet Bakers Inc.,
173 USPQ 565 (TTAB 1972). In this way, anyone who believes
that the term is, in fact, descriptive, may oppose and
present evidence on this issue to the Board.
Decision: The examining attorney’s refusal of
registration is reversed. Accordingly, the involved
application will be forwarded for registration in due
course.