No. 75642693 (T.T.A.B. Sep. 20, 2001)

Pharmacia & Upjohn Co.

Trademark Trial and Appeal BoardSep 20, 2001

No. 75642693 (T.T.A.B. Sep. 20, 2001)

9/20/01 Paper No. 13 EJS UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Pharmacia & Upjohn Company ________ Serial No. 75/642,693 _______ Roberta Jacobs-Meadway and Jay K. Meadway of Ballard Spahr Andrews & Ingersoll, LLP for Pharmacia & Upjohn Company1 Angela M. Micheli, Trademark Examining Attorney, Law Office 108 (David Shallant, Managing Attorney) _______ Before Seeherman, Hanak and Quinn, Administrative Trademark Judges. Opinion by Seeherman, Administrative Trademark Judge: Pharmacia & Upjohn Company has appealed from the final refusal of the Trademark Examining Attorney to register STOMP for the following services: Animal health care management services in the nature of consulting services provided to farmers, ranchers, breeders and veterinarians regarding disease identification, disease prophylactics, 1 Applicant’s revocation and appointment of attorney, filed May 3, 2001, is noted. THIS DISPOSITION IS NOT CITABLE AS PRECEDENT OF THE T.T.A.B. Ser. No. 75/642,693 2 and disease control programs; veterinarian services, namely, disease research and testing for animals, preventive healthcare and disease control services for animals, and animal health care counseling.2 Registration has been refused pursuant to Sections 1, 2, 3 and 45 of the Trademark Act, 15 U.S.C. 1051, 1052, 1053 and 1127, on the ground that applicant’s specimens fail to show use of STOMP as a service mark.3 Applicant and the Examining Attorney have filed appeal briefs; an oral hearing was not requested. We reverse the refusal of registration. The original specimen applicant submitted is “a printed promotional piece distributed by Applicant to both explain and promote its ‘STOMP’ program.” Response filed February 16, 2000. Applicant further states that the specimen is distributed to swine producers and/or veterinarians to promote applicant’s STOMP services. The specimen consists of a large sheet of paper which is folded in half to create 4 8½ x 11” pages of text, and which is “three-hole punched” so that it may be put into a 2 Application Serial No. 75/642,693, asserting first use on February 1, 1998 and first use in commerce as early as February 20, 1998. 3 A requirement that applicant reclassify certain of its identified services in Class 42, rather than Class 35, was complied with by applicant in its appeal brief, and is no longer an issue in this appeal. Ser. No. 75/642,693 3 loose-leaf binder. The paper indicates that it represents “proceedings from the next generation swine practitioner conference.” The word STOMP, in capital letters and within parentheses, appears prominently on the front page, as well as within the text, where it is also depicted in all capital letters. Applicant also submitted, as a substitute specimen, a PowerPoint presentation which “was and continues to be presented to swine producers and veterinarians who have engaged or who may engage ‘STOMP’ services.” Declaration in support of substitute specimens. The first sheet is captioned “Using Diagnostics to Target Medication Programs.” The second sheet depicts the term STOMP prominently at the top, in capital letters and in a size larger than the text below it. That text begins, “Serological Targeting of Medication Programs,” and includes such bullets as “determine the major pathogens,” “determine the disease dynamics,” and “determine whether medication is indicated.” Because of the manner in which it is depicted in the specimens, STOMP will clearly be perceived as a service mark. Moreover, although not a traditional advertisement such as a newspaper ad, the PowerPoint presentation is being used in the promotion of applicant’s services. The Ser. No. 75/642,693 4 text in the PowerPoint program indicates that the services include determining pathogens and whether medication is indicated. Such activities fall under the broad identification of veterinarian services, namely, disease testing for animals and disease control services for animals. Decision: The refusal of registration is reversed.