Douglas E. Crystal

Trademark Trial and Appeal Board

Jan 26, 2005

No. 78166404 (T.T.A.B. Jan. 26, 2005)

Mailed: 1/26/2005
THIS OPINION IS NOT CITABLE
AS PRECENDENT OF
THE T.T.A.B.
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
Trademark Trial and Appeal Board
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In re Douglas E. Crystal
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Serial No. 78166404
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Warren A. Sklar of Renner, Otto, Boisselle & Sklar for
Douglas E. Crystal.
Steven R. Berk, Trademark Examining Attorney, Law Office
102 (Thomas Shaw, Managing Attorney).
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Before Hanak, Chapman and Drost, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Douglas E. Crystal (applicant) seeks to register in
typed drawing form THE CLASSIFIED CHANNEL for “television
broadcasting services, advertising services, Internet
advertising services, product ordering services, telephone
ordering services, telephone call center services,
employment center services, employment services, auction
services, legal advertising services, musical services.”
Ser. No. 78166404
2
The intent-to-use application was filed on September 20,
2002.
The Examining Attorney refused registration on two
grounds. First, citing Section 2(e)(1) of the Trademark
Act, the Examining Attorney contends that applicant’s mark
is merely descriptive of applicant’s services. Second,
citing TMEP Section 1301.05, the Examining Attorney
contends that applicant’s recitation of services is
unacceptable because it is indefinite.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs. Applicant did not request am oral
hearing.
We will consider first the refusal on the basis that
applicant’s mark is purportedly merely descriptive of
applicant’s services. A mark is merely descriptive
pursuant to Section 2(e)(1) of the Trademark Act if it
immediately conveys information about a significant quality
or characteristic of the relevant goods or services. In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In
re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818,
819 (Fed. Cir. 1986). Of course, it need hardly be said
that the mere descriptiveness of a mark is judged not in
the abstract, but rather is judged in relationship to the
Ser. No. 78166404
3
goods or services for which the mark is sought to be
registered. In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215, 216 (CCPA 1978). Finally, a mark need
describe only one significant quality or characteristic of
the relevant goods or services in order to be held merely
descriptive. In re Gyulay, 3 USPQ2d at 1010.
At the outset, we note that both the Examining
Attorney and the applicant have considered the issue of
mere descriptiveness in relationship to applicant’s
identification of services (set forth earlier in this
opinion) which, as previously noted, the Examining Attorney
contends is defective because it is indefinite. We too
will base our analysis of the Section 2(e)(1) refusal by
considering applicant’s mark in relation to the services
set forth in applicant’s application. To cut to the quick,
we find that the evidence of record overwhelmingly
demonstrates that applicant’s mark THE CLASSIFIED CHANNEL
is, at a minimum, extremely highly descriptive of at least
three of applicant’s services, namely, television
broadcasting services, advertising services and Internet
advertising services. It must be remembered that in order
to be held merely descriptive or indeed even generic, a
word or term need only describe or name one of applicant’s
services. In re Analog Devices, Inc., 6 USPQ2d 1808, 1809
Ser. No. 78166404
4
(TTAB 1988) aff’d mem. 871 F.2d 1097, 10 USPQ2d 1879 (Fed.
Cir. 1989).
The Examining Attorney has made of record excerpts
from numerous newspaper and magazine articles where the
term “classified channel(s)” has been used by third parties
in a descriptive and indeed generic manner as applied to
certain types of television broadcasting services,
advertising services and Internet advertising services,
three of the services set forth in applicant’s recitation
of services. An article appearing in the August 21, 2003
edition of the Florida Times-Union (Jacksonville) describes
a new web site “that makes it easier for Internet users to
navigate and is more visually appealing. A new home page,
as well as updated news and classified channels, are among
the new features.” Another article appearing in the
September 21, 2000 edition of the Times-Picayune (New
Orleans) describes the efforts of a couple in searching for
their lost dog in the following manner: “Although I
faithfully continued to place food in her bowl hoping she
would return soon, she didn’t. We tried everything to find
Abby. We made flyers, we advertised on the cable
classified channel and we called the animal shelter to see
if someone had turned her in.” Yet another article
appearing in the September 25, 1997 edition of the Sarasota
Ser. No. 78166404
5
Herald-Tribune (Florida) describes enhancements made to a
local cable television service: “The upgrade also will
include other stations. Other basic channels include the
preview guide, the classified channel, WFCT, Q2 –- a
shopping channel, CSPAN 2 …” Another article appearing in
the March 2, 1992 edition of the Capital District Business
Review describes certain improvements made to the “Troy
Cable Television Station” as follows: “The station has a
special channel set aside for the video classified ads. A
viewer can switch to the classified channel, and watch the
various products and services offered.”
The vast array of newspaper and magazine articles
using the term “classified channel(s)” in a generic manner
goes on and on. For example, an article appearing in the
June 19, 1991 edition of The Atlanta Journal and
Constitution describes a cable channel in the greater
Atlanta area that “will kick off with 350,000 subscribers,
making it the largest classified channel in the country.”
Another article appearing in the February 12, 1991 edition
of the Los Angeles Times contains the following two
sentences: “Photoadvertising debuted in 1988 on Media
General Cable in Fairfax, Va. It worked so well that the
system now offers three full-time classified channels.”
There are numerous additional magazine and newspaper
Ser. No. 78166404
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articles made of record which abundantly demonstrate that
as applied to certain types of television broadcasting
services, advertising services and Internet advertising
services, the term “classified channel(s)” is generic.
Of course, it need hardly be said that the addition
of the word “the” to the generic term “classified channel”
does not cause applicant’s mark in its entirety to be other
than generic. This Board has previously held that the
purported mark THE WEATHER CHANNEL was merely descriptive
of television broadcasting services despite that fact that
the record revealed that no third parties had used the term
“The Weather Channel” (emphasis added). In so doing, this
Board noted as follows: “Nor does the use of the word
‘the’ add any source identifying distinctiveness to the
term sought to be registered.” In re Weather Channel,
Inc., 229 USPQ 854, 856 (TTAB 1985) citing cases.
Likewise, this Board held that the purported mark ALL NEWS
CHANNEL for “television broadcasting services” and
“television production services” was not just merely
descriptive, but was indeed generic. In re Conus
Communication Co., 23 USPQ2d 1717 (TTAB 1992).
Given the fact that it so abundantly clear that the
purported mark THE CLASSIFIED CHANNEL is, at an absolute
minimum, extremely highly descriptive of at least three of
Ser. No. 78166404
7
applicant’s services, we affirm the refusal to register
pursuant to Section 2(e)(1) of the Trademark Act, and we
elect not to consider whether applicant’s description of
services is indefinite.
Decision: The refusal to register is affirmed.