offerings within the descriptions. In re Locus Link USA highlights the need to describe components and/or finished products correctly and clearly, and that an inaccurate description can invalidate a registration. Further, foreign applicants should consider using plain English and terms of art at the outset of the US trademark application process. Note that the USPTO requires a home jurisdiction right covering the applied for goods and services (in the US), but a US application can add specificity and be narrower than its home country basis.It is always a safe strategy to defer to the Acceptable Identifications of Goods and Services Manual when crafting descriptions of goods and services for a US designation of an International Registration. 121 See In re Locus Link USA, 2024 USPQ2d 1181 (TTAB 2024) at 14 (quoting TMEP § 1402.03(a)). 2 Id. at 2. 3 Id. at 9. 4 Id. 5 Id. at 11. 6 See TMEP § 1402.05(a). 7 Id. 8 See In re Locus Link USA, at 10 (quoting TMEP § 1402.01; see also In re Sones, 590 F.3d 1282, 1289 (Fed. Cir. 2009)) (quoting J. THOMAS MCCARTHY, 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 19:48 (4th ed. 2008)). 9 See In re Thor Tech, Inc., Ser. No. 78487208, 2007 TTAB LEXIS 88 at 12. 10 Id. at 1-2. 11 Id. at 14. 12 Trademark ID Manual,https://tmidm.uspto.gov/id-master-list-public.html (last visited October 29, 2024).

offerings within the descriptions. In re Locus Link USA highlights the need to describe components and/or finished products correctly and clearly, and that an inaccurate description can invalidate a registration. Further, foreign applicants should consider using plain English and terms of art at the outset of the US trademark application process. Note that the USPTO requires a home jurisdiction right covering the applied for goods and services (in the US), but a US application can add specificity and be narrower than its home country basis.It is always a safe strategy to defer to the Acceptable Identifications of Goods and Services Manual when crafting descriptions of goods and services for a US designation of an International Registration. 121 See In re Locus Link USA, 2024 USPQ2d 1181 (TTAB 2024) at 14 (quoting TMEP § 1402.03(a)). 2 Id. at 2. 3 Id. at 9. 4 Id. 5 Id. at 11. 6 See TMEP § 1402.05(a). 7 Id. 8 See In re Locus Link USA, at 10 (quoting TMEP § 1402.01; see also In re Sones, 590 F.3d 1282, 1289 (Fed. Cir. 2009)) (quoting J. THOMAS MCCARTHY, 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 19:48 (4th ed. 2008)). 9 See In re Thor Tech, Inc., Ser. No. 78487208, 2007 TTAB LEXIS 88 at 12. 10 Id. at 1-2. 11 Id. at 14. 12 Trademark ID Manual,https://tmidm.uspto.gov/id-master-list-public.html (last visited October 29, 2024).

As a lawyer with a dash of programming experience, I was curious to see ChatGPT flex its legal research muscles. So, I asked ChatGPT this question: “Has the Trademark Trial and Appeal Board [TTAB] ever addressed whether large or expensive goods that are under construction meet the requirement of ‘use’ in commerce under Section 1(a) of the Lanham Act?”In a fraction of a second, ChatGPT—which has memorized over 386 million pages of text and processes this enormous pile of data using 175 billion parameters—produced an intelligent-sounding four-paragraph answer to my obscure question, complete with citations. Amazing! Or is it? Here is a verbatim snippet of ChatGPT’s response:In the case of In re Sones, 590 F.3d 1282 (Fed. Cir. 2009), the TTAB considered whether the applicant’s use of a mark on a partially completed yacht was sufficient to establish trademark use in commerce.This case sounds marvelously relevant to my question. But there are a few problems.While In re Sones is a real case, the citation provided by ChatGPT points to a decision of the U.S. Court of Appeals for the Federal Circuit, not the TTAB. More concerning, however, there was no yacht, sailboat, sloop, schooner, nor any other sailing vessel in the Sones case. On the contrary, the goods at issue in Sones were bracelets emblazoned with the mark “ONE NATION UNDER GOD.”Undeterred, I used the feedback feature of ChatGPT to “train” the program that its answer was wrong. Next, I tried asking the question again. “Certainly!” ChatGPT replied with scripted enthusiasm, and directed me to the case of In re T.V. Today Network Ltd., 116 USPQ2d 1289, 1291 (TTAB 2015). The problem? This case is not real. It does not exist anywhere except in the imagination of C

See Merrill Lynch, 828 F.2d at 1571 (citing TMEP § 1305.04 (Revision 6 (1983)).See, e.g.,Merrill Lynch, 828 F.2d at 1571;In re the American Fertility Society, 188 F.3d 1341 (Fed. Cir. 1999); andIn re Hotels.com, L.P., 573 F.3d 1300 (Fed. Cir. 2009).SeeU.S. Patent and Trademark Office,Examination Guide 1-22: Clarification of Examination Evidentiary Standard for Marks Refused as Generic(May 2022),https://www.uspto.gov/sites/default/files/documents/TM-ExamGuide-1-22.pdf.Id.SeeUSPTO,Examination Guide 1-22at 2.Id.In re Hotels.com, 573 F.3d at 1302 (internal quotation marks omitted) (citing Cal. ex rel. Cooper v. Mitchell Bros’ Santa Ana Theater, 454 U.S. 90, 92-93 (1981)).Id.at 1302 (citing Top of FormTY Inc. v. Softbelly’s, Inc., 353 F.3d 528, 531 (7th Cir. 2003)).Bottom of FormSee In re Sones, 590 F.3d 1282, 1288 (Fed. Cir. 2009) (“We note that the TMEP is instructive, but ‘is not established law.’”).In re Hotels.com, 573 F.3d at 1302 (quoting Ramsey v. United Mine Workers of America, 401 U.S. 302, 309 (1971); Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239–40 (Fed. Cir. 2002)).USPTO,Examination Guide 1-22at 2.SeeIn re Trade-Mark Cases, 100 U.S. 82, 92 (1879) (“The right to adopt and use a [trademark] has long been recognized by the common law [to be] a property right….”).SeeU.S. Const. amends. V, XIV.SeeLexisNexis,TTAB Decision Tracker: Genericness,https://plus.lexis.com/document/openwebdocview/TTAB-Decision-Tracker-Genericness/?pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A5CNT-P201-F8SS-61WD-00000-00&crid=eb70d978-50e1-41e8-aabb-c87c45c19a8c(last visited June 21, 2022) (18 of 25 precedential decisions issued by the TTAB between 2010 and 2021 held the mark(s) at issue were generic).

But the Federal Circuit noted that it had not suggested in Aycock that an open and notorious public offering alone is sufficient to establish use in commerce. Rejecting Couture’s reliance on In re Sones, 590 F.3d 1282, 1288, 1293, (Fed. Cir. 2009), the Federal Circuit counseled that Sones merely held that “the test for an acceptable website-based specimen, just as any other specimen, is simply that it must in some way evince that the mark is ‘associated’ with the goods and serves as an indicator of source.” Id.