Human Data Labs, Inc.

Trademark Trial and Appeal Board

Jan 6, 2021

88526492 (T.T.A.B. Jan. 6, 2021)

Mailed: January 6, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
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In re Human Data Labs, Inc.
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Serial No. 88526492
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Human Data Labs, Inc., pro se.

Janice L. McMorrow, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
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Before Wolfson, Kuczma and Adlin, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant Human Data Labs, Inc. seeks registration of UNLOCK THE VALUE
OF HUMAN DATA, in standard characters, for “online retail store services featuring
data provided via an online platform for acquiring, buying, selling, trading, licensing,
leasing, advertising, rating, standardizing, certifying, researching, distributing, or
brokering data” in International Class 35.1 The Examining Attorney refused
registration on two grounds: (1) Applicant failed to adequately respond to a request
for information under Trademark Rule 2.61(b); and (2) Applicant’s identification of

1 Application Serial No. 88526492, filed July 21, 2019 under Trademark Act Section 1(a), 15
U.S.C. § 1051(a), based on first use in commerce on December 3, 2014. When filed, the
application also included goods in International Class 9, but those were eventually divided
from the Class 35 services into new application Serial No. 88977767.
This Opinion is Not a
Precedent of the TTAB
Serial No. 88526492
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services is indefinite. After the refusal became final, Applicant appealed and filed a
request for reconsideration which was denied. The appeal is fully briefed.
I. Evidentiary Objections
Applicant’s objection to the web printout of Oxford English Dictionary’s definition
of “platform” that the Examining Attorney included with the November 26, 2019
Office Action is sustained. As Applicant points out, materials printed from the
Internet must include a URL and the date the materials were accessed, and this
definition includes neither. In re Mueller Sports Medicine, Inc., 126 USPQ2d 1584,
1586 (TTAB 2018). Applicant also objects to the same dictionary’s definition of “data”
submitted with the same Office Action. While Applicant alleges that the Oxford
English Dictionary is behind a paywall, this claim is unsupported by evidence.
Nevertheless, this definition is unnecessary to our decision and we have not
considered it.
II. Prosecution History
In the initial Office Action, the Examining Attorney refused registration because
Applicant’s identification of services “is too broad and appears to be
misclassified/mischaracterized as a retail service.” October 9, 2019 Office Action
TSDR 1. The Examining Attorney specifically suggested amending the application to
identify “platform as a service, namely …,” in International Class 42. Id.
The Examining Attorney also found that Applicant’s specimen, reproduced below,
“does not show the applied-for mark in use in commerce in connection with” the
identified services, pointing out that Applicant’s original specimen “is an
Serial No. 88526492
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advertisement for ‘software and platform services’ but makes no reference to a
separable retail service”:

Id. at 2; Applicant’s original specimen.
Applicant argued in response that “[t]he identified goods being exchanged using
our retail services are information goods like data, not ‘the provision of online
software’ as the Examining Attorney stated.” October 21, 2019 Office Action response
TSDR 8. More specifically, Applicant’s “[c]ustomers purchase information goods
(data) using our Class 035 retail services just like they use Apple’s APP STORE to
purchase software, NETFLIX to purchase movies ….” Id. at 10. Applicant thus argued
that it properly identified and classified its services. It also provided a substitute
specimen:
Serial No. 88526492
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In the next Office Action, the Examining Attorney indicated that she “is prepared
to accept [the identification and classification of services], but must require” that
Applicant specify the “field and type of products,” suggesting that if accurate,
Applicant could specify that the “data” is “in the form of books and pamphlets … in
the field of [applicant must insert].” October 31, 2019 Office Action TSDR 1. However,
“[i]f the applicant is, in fact, ‘providing an online software platform …,’ that service
would properly be in Class 42.” Id. at 2.
The Examining Attorney also requested the following information “to determine
whether the specimen is in actual use in commerce”:
(1) Identify the particular service(s) listed in the
application for which the specimen(s) was submitted to
show use of the mark;

(2) Was the specimen created for submission with the
application? If so, specify the date each specimen was
created. If applicant obtained the content of the webpage
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or image(s) of the mark in connection with the services
shown in the specimen(s) from a third-party website,
provide the URL for the website and a digital copy of
relevant webpage(s);

(3) Provide information about how applicant advertises the
services and representative examples from online or print
sources showing how the mark appears in applicant’s
advertising of the services. Provide the name of the online
or print source and a complete copy of the webpage(s) or
print page(s) showing the services advertised for sale. For
each source, specify when the services were first advertised
for sale and if the services are still advertised for sale in
that environment.

(4) For the services identified in response to question (1),
specify the date the services were first rendered or
provided to or within the United States, the dollar amount
of sales with or within the United States, and provide at
least three invoices or other supporting documentation
that show payments or other consideration made,
redacting personal information of buyers as necessary.

(5) Provide a URL link and webscreen print of the
applicant’s online retail stores.

Id. at 2-3.
Applicant argued in response that its identification of services is sufficiently
specific, pointing out that “[d]ata is a tangible asset because it is a digital good that
can be purchased, quantified, and measured using objective units like megabytes,
gigabytes, and terabytes.” November 7, 2019 Office Action response TSDR 12.
Applicant ignored and did not respond to the Examining Attorney’s request for
information, however.
The Examining Attorney therefore made the refusal for Applicant’s failure to
respond to the information request final. November 26, 2019 Office Action TSDR 3.
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She also reiterated that she “is prepared to accept” Applicant’s claim that it provides
an online store, but pointed out that the term “data” as used in Applicant’s
identification “does very little to limit the field of goods,” because it “could refer to
any type of information.” Id. at 2. She therefore also made final the refusal based on
Applicant’s identification and classification of services. Id.
Applicant then requested reconsideration based on a proposed amendment to its
recitation of services, while still failing to respond to the information request.
November 29, 2019 Request for Reconsideration. The Examining Attorney denied the
request for reconsideration. December 19, 2019 Denial of Request for
Reconsideration.
Applicant next filed a “final” request for reconsideration, claiming, as it had
previously, that its identification of services is consistent with the identifications in
its own prior applications and previously-issued third-party registrations. May 25,
2020 Request for Reconsideration TSDR 68-70. Applicant also expressed frustration
with the Examining Attorney, as a result of which Applicant “elect[s] to use TMEP
1402.07(d) to return to our original identification of services.” Id. at 70-71. However,
Applicant’s proposed “final identification of services for appeal” is in fact slightly
different than its original identification, and this proposed amended identification
was accepted by the Examining Attorney. Thus, as indicated above, Applicant’s
identification of services is now: “online retail store services featuring data provided
via an online platform for acquiring, buying, selling, trading, licensing, leasing,
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advertising, rating, standardizing, certifying, researching, distributing, or brokering
data.” Id.
In this “final” request for reconsideration, Applicant did not completely ignore the
Examining Attorney’s information request, but did not respond to it either, choosing
instead to attack it. Specifically, Applicant argued that providing sales information
would put it at a competitive disadvantage, without addressing the Examining
Attorney’s other information requests.
III. Arguments on Appeal
Applicant argues that it offers a retail service in which “[t]he commodity
exchanged by others is digital information called data.” 9 TTABVUE 11. More to the
point, Applicant argues that the term “data” in its identification of services is
sufficiently specific, and that itemizing the types of data offered is not required,
asserting that its own pending applications and several third-party registrations
identify “data” in Class 35 “without further qualifications or disclaimers.” Id. at 13-
14.
Applicant argues that its specimens are not webpages for its retail store, but
instead advertisements for its services. Id. at 17-18. However, Applicant does not
address how the specimens advertise the retail sale of data as opposed to Applicant’s
“software and platform services.”
Finally, Applicant reiterates that some of the Examining Attorney’s information
requests seek confidential information, but does not explain its failure to respond to
the other information requests. Id. at 18-21.
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The Examining Attorney argues that because “data” is such a broad term, “[t]he
possibilities for the type and field of data encompassed by the applicant’s
identification are endless; thus, if a similar mark were filed, the USPTO would be
unable to reach an informed decision regarding likelihood of confusion.” 11
TTABVUE 5-6.
As for the information requests, the Examining Attorney contends that Applicant
failed to respond to Request Nos. (3), (4) or (5), pointing out that Applicant could have
“redacted any information it did not wish to reveal rather than failing to comply with
the requirement.” Id. at 7.
IV. Analysis
We agree with the Examining Attorney that Applicant failed to adequately
respond to the information requirement, and that Applicant’s identification of
services is insufficiently definite.
A. Did Applicant Comply With the Information Requirement?
Under Trademark Rule 2.61(b), “[t]he Office may require the applicant to furnish
such information ... and such additional specimens as may be reasonably necessary
to the proper examination of the application.” See TRADEMARK MANUAL OF
EXAMINING PROCEDURE § 814 (Oct. 2018) (“TMEP”). Equivocal, vague or evasive
responses are unacceptable. In re AOP LLC, 107 USPQ2d 1644, 1651 (TTAB 2013).
Noncompliance with an information requirement is an independent ground for
refusing registration, separate and apart from any substantive grounds for refusal.
In re Cheezwhse.com Inc., 85 USPQ2d 1917, 1919 (TTAB 2008); In re DTI Partnership
LLP, 67 USPQ2d 1699, 1701-02 (TTAB 2003); TMEP § 814. Furthermore, when an
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applicant fails to provide requested information, it may be presumed that had it been
provided, the information would have been unfavorable to the applicant. See In re
Cheezshse.com, 85 USPQ2d at 1919, 1921.
Here, Applicant utterly failed to meet the Examining Attorney’s information
requirements. In fact, it did not provide the advertising information required in
Request No. 3, or the URL or webscreen print required in Request No. 5. If Applicant
had no information responsive to these requests, it should have said so, but did not,
which only raised additional questions and confusion.
Applicant’s excuse that some of the information requested is confidential rings
hollow. The sales information and documents sought by Request No. 4 may very well
have been confidential,2 but the advertisements and related information sought by
Request No. 3 and retail store webpages sought by Request No. 5 could not be
confidential. Indeed, advertisements and retail websites are necessarily directed to
the public or portions thereof, often in a manner specifically intended to maximize
public exposure to the material. In any event, even if Applicant’s advertisements and
retail store website could somehow be considered “confidential,” Applicant did not
make this clear in its evasive responses to the information requests. This refusal is
therefore affirmed.

2 The Examining Attorney was well aware that some of the requested information could be
confidential, and therefore specifically informed Applicant, in Request No. 4 itself, that
“redacting personal or private information of buyers” was permissible if necessary. See also
TMEP § 814 (“If the requested information is confidential, or if, for a valid reason, the
applicant does not want to have the information become part of a public record, the applicant
should consider redacting such portions of documents prior to their submission.”).

Serial No. 88526492
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B. Is the Identification of Services Sufficiently Definite?
“An applicant must identify the goods and services specifically to provide public
notice and to enable the USPTO to classify the goods and services properly and to
reach informed judgments concerning likelihood of confusion under 15 U.S.C.
§ 1052(d).” In re Fiat Group Mktg. & Corp. Commc’ns. S.p.A., 109 USPQ2d 1593, 1597
(TTAB 2014); In re Faucher Indus. Inc., 107 USPQ2d 1355, 1358-59 (TTAB 2013);
Trademark Rule 2.32(a)(6) (application must include a “list of the particular goods or
services on or in connection with which the applicant uses … the mark”) (emphasis
added). Thus, “[i]t is within the discretion of the PTO to require that one’s goods be
identified with particularity.” In re Omega SA, 494 F.3d 1362, 83 USPQ2d 1541, 1544
(Fed. Cir. 2007) (quoting In re Water Gremlin Co., 635 F.2d 841, 208 USPQ 89, 91
(CCPA 1980)).
For example, in In re Omega, the applicant sought to register its mark for “jewelry,
precious stones; watches, watch straps, watch bracelets and parts thereof;
chronometers, chronographs, watches made of precious metals, watches partly or
entirely set with precious stones” in International Class 14. The examining attorney
required that “chronographs” be identified more specifically, because that term could
refer to watches, which fall within Class 14, or to time recording instruments, which
fall within Class 9. The Federal Circuit upheld the Board’s decision affirming the
examining attorney’s decision, agreeing that “the scope of the term ‘chronographs’ is
ambiguous for registration purposes,” because it includes both watches and time
recording devices. Id.
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This case is analogous, though it presents a much starker illustration of the
problem than In re Omega. Here, the term “data” in Applicant’s identification of
services is significantly broader than the term “chronographs” in In re Omega. Indeed,
in today’s economy, where information technology is vastly and increasingly
important, and where “data” encompasses an exceedingly broad scope of goods and
services, the precise nature of Applicant’s retail store services is unclear. For
example, online retail stores could offer “data” in the form of: online classes in any
discipline whatsoever; e-tickets to events or for travel; computer typefaces or fonts;
professional, consulting or legal services provided remotely; academic research sold
or conducted online; digital design or photography services; information technology
services; online tutoring; remote accounting or other outsourced business services;
indoor cycling classes transmitted electronically to stationary bike video monitors;
business databases; online poker games; telemedicine; and, of course, musical sound
recordings, books, films and computer software, as well as many other goods and
services. Current public health concerns have only increased the consuming public’s
reliance on online data, which is offered in an almost limitless number of specific
fields.3 See In re Air Prods. and Chems., Inc., 192 USPQ 84, 85 (TTAB 1976)
(“catalysts” could “include a large number of catalysts which applicant does not
manufacture. Under such circumstances, to allow applicant to register its mark for

3 It appears from Applicant’s specimens that it does not offer such a broad range of data, but
instead focuses on “human data,” apparently related to sports, and perhaps provided for the
purpose of improving athletic performance. If this is correct, it is not clear why Applicant
could not amend its identification of services accordingly, or, if it is not correct, why Applicant
could not have clarified the nature of the “data” it offers online.
Serial No. 88526492
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so broad an identification of goods would give it a scope of protection to which it is not
entitled.”); In re Societe Des Parfums Schiaparelli, S.A., 122 USPQ 349, 350 n.4
(TTAB 1959) (“Since the term ‘beauty products’ has no particular commercial
meaning, it should be deleted and the identification of goods be made to read as
follows: perfumery, cosmetics and dentifrices.”).
Applicant’s reliance on its own pending applications and third-party registrations
with allegedly similar identifications of services is misplaced. In general, “[t]he Board
must decide each case on its own merits … Even if some prior registrations had some
characteristics similar to [an involved] application, the PTO’s allowance of such prior
registrations does not bind the Board or this court.” In re Nett Designs, Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).
As for the specific third-party registrations upon which Applicant relies, none of
them include an identification as indefinite as Applicant’s. For example, the “online
marketplace” identified in Registration No. 4628619 for DATACOUP is “for
individuals to sell their own personal data,” which significantly limits the types of
data offered. Other registrations do not identify the sale of unspecified “data,” but
rather services performed on data, such as Registration Nos. 1482655 (DATASAFE),
4891958 (G) and 3988966 (3POINTDATA), which identify services including
“retaining,” “protecting,” “retrieving,” “processing,” “organizing,” “compiling” or
“analyzing” data on behalf of others. These types of services would be expected to be
the same or highly similar regardless of the type(s) of data “protected,” “processed,”
etc. Retail store services, by contrast, would be much more likely to differ depending
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on the types of data provided. For example, an online ticket marketplace’s services,
channels of trade and classes of consumers would have very little, if anything, in
common with a telemedicine provider’s services, channels of trade and classes of
consumers. Indeed, terms much more specific than “data” have been found
insufficiently definite. See e.g. In re Toro Mfg. Corp., 174 USPQ 241 (TTAB 1972)
(refusing registration of TORO for “bags” where specimen showed use in connection
with grass-catcher bags for lawnmowers, pointing out that “bags” could include
“mailbags, valises, suitcases, purses and game bags” or other goods which the
applicant did not offer). In short, Applicant’s identification of services is not
sufficiently definite.

Decision: The refusal to register on the grounds that Applicant failed to comply with
a request for information under Trademark Rule 2.61(b), or to provide a sufficiently
definite identification of services, is affirmed.