Bunkhouse Management, LLC

Trademark Trial and Appeal Board

Jan 29, 2021

87539883 (T.T.A.B. Jan. 29, 2021)

This Opinion is not a
Precedent of the TTAB

Oral Hearing: November 19, 2020 Mailed: January 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Bunkhouse Management, LLC
_____

Serial No. 87539883

_____

Christopher M. Dolan, Philip A. Jones and Sarah P. Harrell of Barnes & Thornburg
LLP, for Bunkhouse Management, LLC.1

Robert N. Guliano, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
_____

Before Zervas, Adlin and Heasley,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Bunkhouse Management, LLC (“Applicant”) seeks registration on the Principal
Register of the proposed mark 2 for “charitable fundraising

1 Mr. Jones argued for Applicant in the oral hearing.
2 For convenience, we refer to the stylized proposed mark in this decision as “I LOVE YOU
SO MUCH.”
Serial No. 87539883
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services by means of organizing and conducting special events” in International Class
36.3 The Examining Attorney accepted the specimen of use submitted with the June
5, 2019 Office Action Response, duplicated in relevant part below:

3 Application Serial No. 87539883, filed on July 24, 2017 pursuant to Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a). The application claims first use and first use in
commerce at least as early as July 1, 2011 and states that color is not claimed as a feature of
the mark. The description of the mark in the application provides that “[t]he mark consists
of the wording ‘I LOVE YOU SO MUCH.’ with the ‘I LOVE YOU’ portion of the wording above
the ‘SO MUCH.’ portion of the wording and in cursive lettering.”
Serial No. 87539883
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The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Sections 1, 2, 3 and 45, 15 U.S.C. §§1051-1053, 1127, because
Applicant’s mark, as used on the specimens of record, is a slogan or term that does
not function as service mark by indicating the source of Applicant’s services,
identifying and distinguishing them from those of others. Specifically, the Examining
Attorney contends that the evidence shows that I LOVE YOU SO MUCH. fails to
function as a mark because it “conveys a commonplace message of deep affection.”4
After the Examining Attorney made the refusal final, Applicant appealed to this
Board and requested reconsideration. The Examining Attorney denied the request
for reconsideration. Applicant then requested remand from the Board to submit
additional evidence, which the Board granted. On remand, the Examining Attorney
was not persuaded and maintained the final refusal to register. The Board resumed
the appeal, and Applicant and the Examining Attorney filed briefs. An oral hearing
was held on November 19, 2020. We affirm the refusal to register.
I. Evidentiary Issue
Applicant submitted evidence for the first time with its appeal brief.5 The record
in an application should be complete prior to the filing of an appeal. Trademark Rule

4 Examining Attorney’s brief, 17 TTABVUE 4.
Citations to the briefs and to the March 17, 2020 Req. for Remand are to TTABVUE, the
Board’s online docketing system. Specifically, the number preceding “TTABVUE”
corresponds to the docket entry number, and any number(s) following “TTABVUE” refer to
the page number(s) of the docket entry where the cited materials appear. Page references to
the application record are to the downloadable .pdf version of the United States Patent and
Trademark Office’s Trademark Status & Document Retrieval (TSDR) system. See Turdin v.
Trilobite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014).
5 Applicant’s brief Exh. 1, 15 TTABVUE 24-44.
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2.142(d), 37 C.F.R. §2.142(d). Untimely evidence may be considered by the Board,
however, if the nonoffering party (1) does not object to the new evidence, and (2)
discusses the new evidence or otherwise affirmatively treats it as being of record. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1207.03
(2020). Because the Examining Attorney did not discusses the untimely evidence or
otherwise affirmatively treat it as being of record, we do not further consider this
evidence.
II. Preliminary Issues
Applicant states it is related to an entity named Jo’s Coffee, which appears to use
the phrase I LOVE YOU SO MUCH. According to Applicant:
Jo’s Coffee, a coffee shop and eatery in Austin, Texas, has
used the Mark for several years. Jo’s Coffee is a related
company to Applicant. The Mark’s first appearance was on
the exterior wall of the Jo’s Coffee unit on South Congress
in Austin, Texas. Since that time, the Mark, particularly in
the stylized form that is the subject of this Application, has
become widely associated by consumers with Jo’s Coffee
and its high quality goods and services. The Mark’s
appearance has also received widespread notoriety in
media posts and articles, such as Trip Advisor.
The Mark also appears on Applicant’s own social media
pages, including Twitter, where, as of the Request for
Reconsideration, it had in excess of 10,000 followers, and it
currently has more than 20,000 followers. Quite simply,
many Austin visitors come to Jo’s Coffee, order food and
beverages, immerse themselves in the Austin culture and
community, and associate the conspicuous Mark with Jo’s
Coffee and this great experience.6 (citations to the record
omitted).

6 Applicant’s brief at p. 4, 15 TTABVUE 5.
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Much of Applicant’s evidence and argument pertains to Jo’s Coffee’s mark and
activities. Applicant does not explain the precise relationship between Applicant and
Jo’s Coffee, or even if Applicant owns the proposed mark mentioned on Jo’s Coffee’s
website, and, if so, how Applicant controls the nature and quality of the charitable
fundraising services involved herein. On the other hand, these issues were not raised
in the course of examination, so Applicant was not given the opportunity to explain
the relationship fully. For purposes of this appeal only, we therefore have assumed
that Applicant controls the nature and quality of any services, including charitable
fundraising services, provided by Jo’s Coffee.
Applicant also states that the basis for refusal is “erroneous”:
The Examining Attorney expressly withdrew the failure to
function in his Final Office Action. … However, without
explanation, the Examining Attorney’s basis for the final
refusal is that the Mark fails to function as a mark because
it is merely informational. … However, a refusal because a
mark is merely informational is not valid unless the merely
informational nature of the mark makes it fail to function
as a trademark. “Merely informational” is not one of the
listed exceptions in Section 2 of the Lanham Act; the legal
basis for refusing registration of a mark because it is
merely informational is that it fails to function as a
trademark, and therefore does not meet the statutory basis
for registration. The Examining Attorney improperly
separated merely informational from failure to function,
thereby revealing the core of his position – that the Mark
is merely informational without regard to whether it
functions as a trademark. This procedural point alone is a
sufficient basis for overturning the Examining Attorney’s
refusal to register.7

7 Reply brief at p. 8, 18 TTABVUE 9.
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The TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1202.04 (Oct. 2018)
explains:
Matter may be merely informational and fail to function as
a source indicator for various reasons, including one or
more of the following:
The matter merely conveys general information
about the goods or services.
The matter is a common phrase or message that
would ordinarily be used in advertising or in the
relevant industry, or that consumers are
accustomed to seeing used in everyday speech by a
variety of sources.
The matter is a direct quotation, passage, or citation
from a religious text used to communicate affiliation
with, support for, or endorsement of, the ideals
conveyed by the religious text. (citations omitted).8
In the Final Office Action, issued after Applicant submitted - on its third try - an
acceptable specimen of use,9 the Examining Attorney explained:
In previous Office actions, registration was refused based
on Sections 1, 2, 3, and 45 of the Trademark Act as merely
informational, Sections 1, 2, 3, and 45 of the Trademark
Act for a failure to function, and because of a matching
issue between the specimen and drawing. Applicant
responded by submitting arguments and evidence against
the refusals and by submitting substitute specimens. The
failure to function and matching refusals have been
withdrawn.

8 Applicant’s comments at pp. 13-14 of its brief (15 TTABVUE 14-15) and citation to In re
Wal-Mart Stores, Inc., 129 USPQ2d 1148 (TTAB 2019) regarding the mark INVESTING IN
AMERICAN JOBS are directed to the first paragraph of this quoted excerpt from Section
1202.04 as opposed to the second paragraph thereof, which is relevant to the Examining
Attorney’s refusal to register.
9 The Examining Attorney first raised the specimen issue in an October 30, 2017 Office
Action. It was on June 5, 2019 that Applicant submitted an acceptable specimen.
Serial No. 87539883
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***
Registration is refused because the applied-for mark is a
slogan or term that does not function as a trademark or
service mark to indicate the source of applicant’s services
and to identify and distinguish them from others.
Trademark Act Sections 1, 2, 3, and 45, 15 U.S.C. §§1051-
1053, 1127. 10
The Examining Attorney followed the guidance of Section 1202.04. He did not
improperly separate a merely informational refusal from a failure to function refusal,
but restated the refusal in view of Applicant’s submission of an acceptable specimen.
The Final Office Action makes clear that the refusal is grounded in Sections 1, 2, 3
and 45 of the Trademark Act.
III. Evidence and Arguments
A. Evidence submitted by the Examining Attorney11
1. Dictionary Entries for I LOVE YOU SO MUCH or ILYSM
● Urban Dictionary entry for I LOVE YOU SO MUCH – “Sometimes you have no
way else to say it You’ve thought about it and no matter how you say it, whatever
wonderful vocabulary you can design to make sound of your heartfelt emotion for your
respective angel, they will never quite grasp it.”12

10 June 11, 2019 Office Action, TSDR 1.
11 Some of the Examining Attorney’s Internet evidence does not exhibit a full address (URL)
for the webpage. If an examining attorney does not include the URL and the date when the
Internet evidence was accessed or printed and the applicant objects, the Board will not
consider the material. However, if the applicant does not object to the non-complying
material, the Board may consider the material for whatever probative value it may have. See
TBMP § 1208.03 and cases cited therein. Because Applicant did not object, we consider the
evidence.
12 June 11, 2019 Office Action, TSDR 66.
Serial No. 87539883
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● cyberdefinitions.com – “The abbreviation ILYSM is used with the meaning ‘I
Love You So Much’ as an expression of affection. It is typically used to show
appreciation of an act of kindness by a loved one.”13
● The Free Dictionary entry for “ILYSM” — “I Love You So Much”14
2. Uses in the context of charitable fundraising:
15

13 April 7, 2020 Office Action, TSDR 2.
14 Id., TSDR 6.
15 January 27, 2020 Office Action, TSDR 16. We note the button “Donate” appearing at the
bottom right.
Serial No. 87539883
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16
In addition, the Examining Attorney submitted the following webpages, which
include “I love you so much” used in messages concerning charitable donations:
Submitted with the June 11, 2019 Office Action:
● Bella Muntean (webpage showing a “donate” button),
TSDR 45
● GoFundMe webpage entitled “A little bit goes a long
way,” TSDR 46
● GoFundMe webpage entitled “Keep Hope Alive,” TSDR
47
● GoFundMe webpage entitled “Tyler’s Top Surgery,”
TSDR 48
● GoFundMe webpage entitled “Help Support the Golema
Family,” TSDR 49
● HelpHopeLive (webpage showing a “give” button), TSDR
50

16 Id., TSDR 21.
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● “Caroline Watson’s Fundraising Page,” “4k for Cancer,”
TSDR 51
● “Light the Night,” with caption “My Fundraising Page,”
TSDR 52
● Love Out Lavender webpage “$4,925.00 Raised by 12
supporters,” TSDR 53
● “Strides for Safe Kids” “Fundraising Walk and Expo,”
TSDR 54
● “Boston Children’s Hospital” webpage “Choose a
donation amount,” TSDR 55-56
Submitted with the January 27, 2020 Office Action:
● Women of the World stating “Women of the World is
grateful to all of our wonderful donors and their terrific
mothers” with a link to “Donate”, TSDR 7
● Frankie Grande School webpage with a “DONATE”
button, TSDR 9
● Paws4People with “Donate” button, TSDR 10
● ALS Association “Smith Family Fleet is raising money
for the ALS Association – Wisconsin Chapter,” TSDR 11
● NEGU with “GIVE ONCE,” “GIVE MONTHLY” and
“FUNDRAISE” buttons, TSDR 12
● Race Roster identifying “Recent donors,” TSDR 13
● Mirth Films with title “Fundraiser: A tribute for
BassBullets,” TSDR 14
Serial No. 87539883
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3. Other Uses
17

18

17 June 11, 2019 Office Action, TSDR 57.
18 Id., TSDR 60.
Serial No. 87539883
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The Examining Attorney submitted the following uses of the literal elements of
proposed mark with the May 10, 2018 Office Action:
● Youtube, TSDR 2 (title of a song)
● Etsy, TSDR 3 (appearing ornamentally on a spoon)
● Amazon, Office Action, TSDR 4 (title of a book)
● Mercedes Salazar, TSDR 5 (used as a message on
jewelry)
● Filmmaker, TSDR 6 (title of a film)
● The Bold Italic, TSDR 7 (title of article)
● Thought Catalog, TSDR 8 (theme of essay)
● The Sealy News, TSDR 9 (mother’s day message)
● Webpoco, TSDR 10 (message to celebrity)
● Tennessean, TSDR 11 (message to concert crowd)
● Chocolate, TSDR 12 (message written out in chocolate
candies)
● Wayfair, TSDR 13 (appearing ornamentally on duvet)
● Bigkoro, TSDR 14 (appearing ornamentally on t-shirt)
● People, TSDR 15 (birthday message to loved one)
● E News, TSDR 16-19 (birthday message to loved one)
● The Sweet Dood, TSDR 20 (Valentine’s Day story book
theme)
● Pandora, TSDR 21 (title of a song)
4. Jo’s Coffee and Social Media Uses:

I LOVE YOU SO MUCH. appears as a mural on the wall of Jo’s Coffee’s “unit”:

Serial No. 87539883
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19

Applicant’s social media pages, submitted with the June 11, 2019 Office Action,
contain dozens of postings of people posing in front of the I LOVE YOU SO MUCH.
mural:
20

19 Specimen of use submitted on April 3, 2018.
20 June 11, 2019 Office Action, TSDR 11.
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21

22
● ellieichinger, TSDR 2 (photo of a couple next to mural
with a caption “speaks for itself” and a comment on the
photo stating “I really do love you so much.”).

21 Id. at TSDR 12.
22 Id. at TSDR 33.
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● starcely, TSDR 3 (photo of couple kissing with hashtag
“#iloveyousomuch” in the caption).
● aileen_burke, TSDR 4 (photo of couple celebrating their
8th anniversary with caption “I love you very much”).
● deirdrewalsh, TSDR 5 (photo of couple kissing).
● katrinacydnee, TSDR 6 (photo of couple with caption
“Love you so much pals, thanks for visiting”).
● micahelhcruz, TSDR 7 (photo of couple with hashtag
“#iloveyousomuch” above comment of “#iloveyoutoo”).
● sushigirl_atx, TSDR 8 (photo of person with a puppy with
caption “We [heart symbol] you so much @_miss_nala [dog
symbol]”).
● adamksilver, TSDR 9 (photo of couple).
● _socheryl, TSDR 10 (photo of couple with caption “Love
you!”).
● _j.cherry.g_, TSDR 13 (photo of couple with caption “&
That’s The Truth My Love”).
● Sambeuhler12, TSDR 14 (photo of couple embracing).
B. Evidence submitted by Applicant
● Seven form declarations stating that the declarant recognizes I LOVE YOU SO
MUCH. as “an indicator of the source of coffee, food, café services and other goods or
services”; and “I expect that goods and services sold in connection with the words ‘I
love you so much.’ in this script form, originate from a single source, namely Jo’s
Coffee.”23

23 Req. for Remand, Exh. 2, 9 TTABVUE 12.
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● Instagram posts showing pictures of the proposed mark on the exterior of Jo’s
Coffee in Austin, Texas.24
● Applicant’s use of the proposed mark:
• Jo’s Coffee website.25
• Applicant’s social media pages.26
● Trip Advisor reviews of Jo’s Coffee.27
● Third-party registrations for I LOVE YOU and LOVE YOU-formative marks28
● Third-party registrations for marks expressing sentiment such as ILIKEYOU
(Reg. No. 5285888), I HATE CLOWNS (Reg. No. 2818920), and WE LOVE YOU
GUYS! (Reg. No. 4719822).29
● Third-party registrations30 for marks that convey information such as YOU
DESERVE A BREAK TODAY (Reg. No. 4696083), and MAKE AMERICA GREAT
AGAIN (Reg. No. 4773272), or that are registered for decorative and display
purposes.31

24 December 11, 2019 Req. for Recon., TSDR 13- 21.
25 November 13, 2018 Resp. to Office Action, TSDR 8-12; December 11, 2019 Req. for Recon.,
TSDR 109-110.
26 December 11, 2019 Req. for Recon., TSDR 88.
27 November 13, 2018 Resp. to Office Action, TSDR 4, 13-14.
28 June 5, 2019, Resp. to Office Action, TSDR 7-97; December 11, 2019 Req. for Recon., TSDR
112-187.
29 December 11, 2019 Req. for Recon., TSDR 189-269.
30 Applicant also timely submitted several third-party applications for various marks it
contends are relevant. The probative value of third-party applications is only to show that
the applications were filed. Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463,
1468 n.6 (TTAB 2003).
31 November 13, 2018 Resp. to Office Action, TSDR 15-16; December 11, 2019 Req. for Recon.,
TSDR 33-77, 45-52, 66-70.
Serial No. 87539883
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● Third-party social media posts featuring informational slogans unrelated to the
involved mark.32
● Articles regarding murals and street art which Applicant maintains fosters a
connection between brands and goods and services.33
C. Arguments
The Examining Attorney argues that the phrase I LOVE YOU SO MUCH is so
commonly used in the context of charitable fundraising and in ordinary parlance that
consumers perceive it as a message of deep affection, not as an indicator of a single
source of charitable fundraising services.34
Applicant argues the Board should focus on the evidence of consumer perception
in the record, such as consumer declarations and social media posts, in which
consumers associate the proposed mark with Applicant and Applicant’s services.
According to Applicant, the consumers who take their photos in front of the mural at
Jo’s Coffee do so to “commemorate their visits to the hip Austin establishment where
people enjoy great beverages and food, and [to] experience the culture of Austin’s
special South Congress neighborhood.”35 “Their pictures are primarily meant to
commemorate their visit to one of the landmark purveyors of food and beverages in
Austin.”36 In addition, Applicant states there is no obvious informational use with

32 December 11, 2019 Req. for Recon., TSDR 77-86.
33 Id., TSDR 90-107.
34 17 TTABVUE 5-8.
35 Applicant’s brief at pp. 11-15, 15 TTABVUE 12-16.
36 Id. at p. 13, 15 TTABVUE 14.
Serial No. 87539883
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respect to the charitable fundraising services; it compares its mark to marks that
have been registered such as other I LOVE YOU marks, MAKE AMERICA GREAT
AGAIN and GOT MILK?, and maintains that its proposed mark should not be treated
any differently than those registered marks. Applicant adds that informational
refusals are for limited situations where marks are in widespread use, which is not
the case here, and that the stylized appearance of Applicant’s mark makes it more
likely that consumers will recognize it as an indicator of source and not merely
informational.37
IV. Analysis
“The Trade-Mark Act is not an act to register words but to register trademarks.
Before there can be registrability, there must be a trademark (or a service mark) and,
unless words have been so used, they cannot qualify for registration.” In re Standard
Oil Co., 275 F.2d 945, 125 USPQ 227, 229 (CCPA 1960). Thus, we consider the Act’s
definition of a service mark, which is “any word, name, symbol, or device, or any
combination thereof ... [used] to identify and distinguish the services of one person ...
from the services of others and to indicate the source of the services, even if that
source is unknown.” Trademark Act § 45, 15 U.S.C. § 1127. See also In re Bose Corp.,
546 F.2d 893, 192 USPQ 213, 216 (CCPA 1976) (“the classic function of a trademark
is to point out distinctively the origin of the goods to which it is attached”).
Whether the phrase I LOVE YOU SO MUCH. falls within this definition and
functions as a mark depends on whether the relevant public, i.e. purchasers or

37 Id. at pp. 15-22, 15 TTABVUE 16-23.
Serial No. 87539883
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potential purchasers of Applicant’s services, would perceive the term as identifying
Applicant’s services and their source or origin. See e.g. In re Texas With Love, LLC,
2020 USPQ2d 11290, *2 (TTAB 2020); In re TracFone Wireless, Inc., 2019 USPQ2d
222983, *1-2 (TTAB 2019) (“The key question is whether the asserted mark would be
perceived as a source indicator for Applicant’s [goods or] services.”); In re Aerospace
Optics, Inc., 78 USPQ2d 1861, 1862 (TTAB 2006) (“[T]he critical inquiry is whether
the asserted mark would be perceived as a source indicator.”); In re Volvo Cars of N.
Am. Inc., 46 USPQ2d 1455, 1459 (TTAB 1998) (“A critical element in determining
whether a term or phrase is a trademark is the impression the term or phrase makes
on the relevant public.”).
“[W]idespread use of a term or phrase may be enough to render it incapable of
functioning as a trademark, regardless of the type of message.” In re Texas With Love,
2020 USPQ2d 11290, at *7. Expressions in ubiquitous use are unlikely to be perceived
as source identifiers. See D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1716
(TTAB 2016); In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010): In re Volvo
Cars of N. Am., 46 USPQ2d at 1460-61. “To make this determination we look to the
specimens and other evidence of record showing how the designation is actually used
in the marketplace.” In re Eagle Crest, 96 USPQ2d at 1229 (citations omitted).
Here, the specimen accepted by the Examining Attorney reveals that Applicant
uses I LOVE YOU SO MUCH. on its website, which mentions Applicant’s services,
and uses the trademark symbol (“TM”) with its proposed service mark. That does not
necessarily mean that I LOVE YOU SO MUCH. functions as a service mark, however.
Serial No. 87539883
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“Not every word, name, phrase, symbol or design, or combination thereof which
appears on a product functions as a trademark,” and “[m]ere intent that a phrase
function as a trademark is not enough in and of itself to make it a trademark.” In re
Pro-Line Corp., 28 USPQ2d 1141, 1142 (TTAB 1993). See also In re Wal-Mart Stores,
Inc., 129 USPQ2d 1148, 1152 (TTAB 2019) (“The mere fact that a phrase proposed
for registration appears on the specimens of record does not establish its use as a
service mark.”).
In this case, notwithstanding Applicant’s use of the term and apparent intent that
it function as a service mark, the evidence reveals that I LOVE YOU SO MUCH. does
not perform the desired service mark function and does not fall within the Act’s
definition of a service mark because it would be perceived not as a mark, but as a
widely-used expression of a sentiment.
The phrase I LOVE YOU SO MUCH is defined as a heartfelt phrase spoken to
loved ones.38 It is used so often that it has been abbreviated to ILYSM.39 The
Examining Attorney’s extensive evidence demonstrates use of this phrase and its
abbreviation, not only in the context of charitable fundraising, but also in other
contexts.
Applicant argues that the Examining Attorney’s evidence of use of I LOVE YOU
SO MUCH in the context of charitable giving should not be given any weight because
it comprises “simple thank you messages for donations or charitable support where

38 June 11, 2019, Final Office Action, TSDR 66.
39 See April 7, 2020, Reconsideration Letter, TSDR 2-13 (showing several sources defining
ILYSM as an initialism of “I love you so much,” an expression of profound affection).
Serial No. 87539883
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the organizer writes ‘I love you so much’” and “[t]he Examining Attorney’s evidence
says nothing about whether consumers perceive the Mark as an indicator of source.
… None of them appear to be an attempt at trademark use.”40 This argument has no
merit because the issue before us is whether widespread use of a phrase by others
has rendered it “incapable of functioning as a trademark, regardless of the type of
message.” In re Texas With Love, 2020 USPQ2d 11290, at *7. We find that the
evidence reflects that use of I LOVE YOU SO MUCH is so widespread that it is
incapable of functioning as a service mark.
Turning to Applicant’s evidence, we find that it does not establish that consumers
will perceive I LOVE YOU VERY MUCH. as a mark. The declarations Applicant
submitted are only seven in number, and there is no explanation of how Applicant
obtained the declarations.41 See In re Benetton Group, S.p.A., 48 USPQ2d 1214, 1217
(TTAB 1998) (“given the nature of applicant’s services, the statements of twenty three
individuals do not establish an association of the [mark] with a single source by other
than an extremely small number of the purchasing public.”). Three are dated May,
19, 2020, two are dated February 20, 2020 and two are undated. All seven are
identical in substance, having been written on preprinted forms with space saved for
the declarant to add his or her location of residence, signature, printed name and
date. Form declarations such as these may not “actually reflect the views of the
declarants” and are entitled to “little weight.” In re EBSCO Indus. Inc., 41 USPQ2d

40 Reply brief at p. 8, 18 TTABVUE 9.
41 March 17, 2020 Req. for Remand, Exh. 2, 9 TTABVUE 12.
Serial No. 87539883
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1913, 1917 (TTAB 1996); see also In re Pohl-Boskamp GmbH & Co., 106 USPQ2d
1042, 1051 (TTAB 2013) (“probative weight … [of declarations] is affected somewhat
by the fact that they are all essentially identical in form and were clearly not
composed individually. ... [S]uch statements are less persuasive than statements
expressed in the declarants’ own words.”).
The declarations further suffer because they do not identify the declarants’
relationship to Applicant, e.g., consumers, suppliers or contractors.42 Because all
seven declarants state that they reside in Austin, Texas, they reflect only a sampling
of consumers in a very limited portion of the United States.43 They state that they
recognize the proposed mark “as an indicator of the source of coffee, food, café services
and other goods or services,”44 and that “the words, ‘I love you so much,’ in … script
form do not give any information about the goods or services Jo’s Coffee offers,” but
they are silent as to the specific charitable fundraising services that Applicant
identified in its application. Also, the issue before us is not whether the matter merely
conveys general information about the goods or services, but whether the proposed
mark is viewed as a common phrase or message that consumers are accustomed to
seeing used in everyday speech. In re Mayweather Promotions, LLC, 2020 USPQ2d
11298, *4 (TTAB 2020) (“A term may still fail to function as a mark even if it does not

42 Applicant represents in its brief that the declarations are consumer declarations but the
declarants have not stated that they are consumers.
43 Applicant is seeking national rights for its proposed mark, not limited to Austin, Texas.
44 March 17, 2020 Req. for Remand, 9 TTABVUE 10.
Serial No. 87539883
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convey information about the goods [or services].”). In sum, the probative value of the
seven declarations is extremely limited.
Turning to the postings on Applicant’s social media accounts submitted by both
Applicant and the Examining Attorney, they fail to demonstrate a use of the phrase
to indicate the source of charitable fundraising services. The following Instagram
page is exemplary:
45
One post states, “Apparently this mural outside my favorite almost-daily coffee
shop is pretty famous or something.” The reference is to the mural, not to any goods
or services, including charitable fundraising services. So are the specific Instagram
postings noted by Applicant in its brief from Tarahluke, Cristinagiselle,

45 December 11, 2019 Req. for Recon., TSDR 13 – 21.
Serial No. 87539883
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Captur3Media and Austin.bucketlist.46 Nothing on the postings indicates awareness
that Applicant provides charitable fundraising services. The same applies to the
TripAdvisor47 pages submitted by Applicant - they are silent about any charitable
fundraising services.
Turning to the third-party registrations, Applicant puts great stock in the fact
that the USPTO has registered I LOVE YOU and LOVE YOU-formative marks, as
well as marks with similar messages, and marks that convey information such as
MAKE AMERICA GREAT AGAIN. The Board stated in In re Texas With Love, 2020
USPQ2d 11290, at *21-22, that mere third-party registrations, without more, do not
reveal
how the marks are used in connection with the registrants’
goods and services; whether third parties use the same or
similar marks, and, if so, how; whether the marks convey
particular meanings or commercial impressions, and if so
what those meanings or impressions are; or how
extensively the marks are used by others, if at all. And
without that information, there is no support for
Applicant’s contention that the refusal of its application
was rendered in a situation that is “contextually identical”
to the circumstances leading to the allowance of these other
registrations.
In addition, it is settled that the existence of third-party registrations does not
compel a specific result in later, allegedly analogous, cases. Id. at n. 10, * 22-23,
(citing Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370,

46 Applicant’s brief at pp. 12–13, 15 TTABVUE 13-14.
47 November 13, 2018 Resp. to Office Action, TSDR 13-14, stating in relevant part, “[t]he
signature drink is the Iced Turbo but the[y] do have other great drinks here too and have
breakfast tacos in the morning until they run out. My iced coffee was very good.”
Serial No. 87539883
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1377 (Fed. Cir. 2018) (“these prior registrations do not compel registration of
[Applicant’s] proposed marks”) (citing In re Cordua Rests., Inc., 823 F.3d 594, 118
USPQ2d 1632, 1635 (Fed. Cir. 2016)) (“The [US]PTO is required to examine all
trademark applications for compliance with each and every eligibility requirement,
… even if the [US]PTO earlier mistakenly registered a similar or identical mark
suffering the same defect.”); In re Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d
1218, 1221 (Fed. Cir. 2009) (“Even if all of the third-party registrations should have
been refused registration under section 1052(a), such errors do not bind the USPTO
to improperly register Applicant’s marks.”); In re Cooper, 254 F.2d 611, 117 USPQ
396, 401 (CCPA 1958) (“the decision of this case in accordance with sound law is not
governed by possibly erroneous past decisions by the Patent Office”)). Thus, “[w]e do
not believe that our decision here is inconsistent with the registration of the third-
party marks cited by Applicant, but to the extent that it is, it is the decision required
under the statute on the record before us.” In re Ala. Tourism Dept., 2020 USPQ2d
10485, *11 (TTAB 2020).
Applicant also argues that the recent decision in USPTO v. Booking.com B.V., 140
S. Ct. 2298, 207 L. Ed. 2d 738, 2020 USPQ2d 10729, *1 (2020) emphasizes that
consumer perception be examined and teaches that any concerns regarding the
impact of registering Applicant’s mark on others is not controlling.48 There is no doubt

48 Applicant’s brief at pp. 9-10, 15 TTABVUE 10-11.
Even though Applicant argues that “the impact of registering Applicant’s mark on others is
not controlling,” id., Applicant argues that the declarants have said that they would believe
Jo’s Coffee was somehow connected with an event or establishment if another entity used the
proposed mark, noting “[t]he trademark registration process exists to allow trademark
owners to enjoy the benefits of registering their mark as an added level of protection against
Serial No. 87539883
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that consumer perception must be considered and we have considered consumer
perception by considering all of the evidence in the record and giving it appropriate
weight. In referring to consumer perception, Booking.com does not break new ground.
TMEP § 1202.04 states:
The critical inquiry in determining whether matter
functions as a trademark or service mark is how the
proposed mark would be perceived by the relevant public.
See D.C. One Wholesaler, Inc., 120 USPQ2d at 1713; In re
Phoseon Tech., Inc., 103 USPQ2d 1822, 1827 (TTAB 2012)
(noting that the critical inquiry in determining whether a
mark functions as a trademark is the “commercial
impression it makes on the relevant public (e.g., whether
the term sought to be registered would be perceived as a
mark identifying the source of the goods or merely as an
informational phrase)”); In re Eagle Crest, Inc., 96 USPQ2d
at 1229; In re Remington Prods., Inc., 3 USPQ2d [1714,
1715 (TTAB 1987)].
As to the impact on others, Applicant is wrong - this can be considered. The Court
commented in Booking.com in the context of a genericness analysis involving a term
which functioned as a necessarily unique URL due to its inclusion of “.com,” a
different situation than the one we are presented with in this appeal. In the Texas
With Love case, which issued after Booking.com, the Board recognized the
anticompetitive effects of registering a mark that failed to function due to well-
recognized and widespread use. The Board stated:
[G]ranting the registration Applicant seeks “would achieve
the absurd result of hampering others in their use of the
common” phrase TEXAS LOVE for clothing or related
products. In re Schwauss, 217 USPQ [361, 362 (TTAB
1983)]; In re Volvo Cars, 46 USPQ2d at 1460 (“to grant

encroachment by unaffiliated entities who are likely confusing consumers.” Id. at p. 12, 15
TTABVUE 13.
Serial No. 87539883
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exclusive rights to applicant in this ordinary and commonly
used safety admonition would interfere with the rights of
others in the automobile industry to freely use the familiar
phrase” to promote safe driving); see also America Online,
Inc. v. AT&T Corp., 243 F.3d 812 , 57 USPQ2d 1902, 1910-
11 (4th Cir. 2001) (widespread use of “You Have Mail” in
connection with an email service could not be protected as
a trademark where consumers would perceive it “in its
commonly understood way”).
In re Texas With Love, 2020 USPQ2d 11290, at *7. As with TEXAS LOVE, if the
phrase I LOVE YOU VERY MUCH. for Applicant’s identified services were to be
registered, the registration would interfere with competitors’ free use of the phrase
for the same or similar services. As the record in this case shows, and in sharp
contrast to Booking.com, to the extent the proposed mark in this case identifies the
source of any goods or services, the source is not Applicant alone, but rather many of
those who use the phrase in question. It does not function as a service mark to identify
a single source.
Applicant also argues that the stylization of the lettering in its proposed mark
makes it more likely that the proposed mark would be recognized as a source
indicator. For support, Applicant relies on the declarations discussed above, which
state, “[w]hen I see the words ‘I love you so much.’ in the script form shown above I
think of Jo’s Coffee.”49 We find the cursive lettering in the proposed mark to be
common and ordinary. It does not create a commercial impression different from the
widely used message “I love you very much.” Cf. See In re Sadoru Grp., Ltd., 105
USPQ2d 1484 (TTAB 2012) (stylization insufficient given blue “slightly stylized block

49 March 17, 2020 Req. for Recon., 9 TTABVUE 9-15.
Serial No. 87539883
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lettering”). There is nothing about the cursive lettering that creates its own
impression, apart from the wording.
In view of the forgoing, we find that notwithstanding Applicant’s use of the term
and apparent intent that it function as a service mark, the evidence reveals that I
LOVE YOU SO MUCH. does not perform the desired service mark function and does
not fall within the Act’s definition of a service mark because it would be perceived not
as a mark, but as a merely informational and widely used phrase. Applicant’s
competitors and other third parties should be able to freely use the widespread phrase
I LOVE YOU SO MUCH in connection with the same or similar services. See In re
Peace Love World Live, LLC, 127 USPQ2d 1400, 1403 (TTAB 2018) (I LOVE YOU,
appearing on bracelets, would be viewed as a term of endearment rather than a
source-identifying trademark).
V. Conclusion
Because the evidence of record shows that I LOVE YOU VERY MUCH. is a
widely-used expression of a sentiment, it would not be perceived as an indicator of
source in the context of Applicant’s identified services. I LOVE YOU VERY MUCH.
fails to function as a trademark under Sections 1 , 2, 3 and 45 of the Trademark Act.
Decision: The refusal to register the phrase I LOVE YOU SO MUCH. is affirmed
because it fails to function as a mark.