Telpro, Inc.

Trademark Trial and Appeal Board

Jun 18, 1997

EX (T.T.A.B. Jun. 18, 1997)

Paper No. 15
GDH/TLW/KP
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Telpro Inc.
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Serial No. 74/620,602
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Robert E. Kleve for Telpro Inc.
Karen K. Bush, Senior Examining Attorney, Law Office 104
(Sidney I. Moskowitz, Managing Attorney).
_______
Before Hanak, Quinn and Hohein, Administrative Trademark Judges.
Opinion by Hohein, Administrative Trademark Judge:
Telpro Inc. has filed an application to register the
mark reproduced below for "construction equipment, namely [a]
manually operated dry wall lifter".1

1 Ser. No. 74/620,602, filed on January 11, 1995, which alleges dates
of first use of January 1, 1975.
Ser. No. 74/620,602
2
Registration has been finally refused pursuant to
Sections 1, 2 and 45 of the Trademark Act, 15 U.S.C. §§ 1051,
1052 and 1127, on the ground that, rather than constituting
"instruction pamphlet[s], included in the packaging of [the]
goods," as stated in the application, the specimens, according to
the Senior Examining Attorney, "are unacceptable as evidence of
actual trademark use because they are advertising brochures."
The back and front of applicant's specimens, and the inside pages
thereof, are respectively reproduced below:
Ser. No. 74/620,602
3
[Go to library for copy of other spec. pages]
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal that the
specimens fail to evidence trademark use.
Applicant, while conceding in its brief that its
brochures or pamphlets "are admittedly advertisements" within the
commonly accepted meaning of such term, argues that the specimens
"are more than mere advertisements" because "they are clearly and
Ser. No. 74/620,602
4
obviously instructional in nature". Specifically, applicant
asserts that:
In this instance, the brochure describes and
instructs as to how to use and assemble the
device in seven different situations, with
seven pictures showing and instructing its
use in these seven different situations.
This is more than ... [a] mere advertisement,
illustration or announcement[.] This is
clearly ... [a product] booklet instructing
primarily as to its use ... in how to load,
how to install a drywall on a ceiling, how to
install drywall on upright walls, upper and
lower, how the legs are foldable ... to pass
through doorways, and how to disassemble the
components for storage. While the
instructions [in the brochures] may be less
detailed than a ... comprehensive
instructional manual ..., there is no case
law supporting a position that they are not
acceptable specimens ... simply because they
are brief in their instructional nature ...
or because they are not as comprehensive as a
full[-]fledged manual. That has not been a
requirement by any case law.
In addition, applicant contends that in order to be acceptable as
specimens, brochures or pamphlets need not pertain solely to
instructions as to assembly of the goods. Instead, applicant
maintains, if brochures or pamphlets contain instructions as to
use or operation of the goods, then such materials are acceptable
as specimens evidencing trademark use.
While we have no quarrel with applicant's contention
that an instructional pamphlet or brochure may indicate the use
or operation of goods rather than, or in addition to, just
providing instructions in their assembly, we concur with the
Senior Examining Attorney that the specimens furnished by
applicant are merely advertising brochures which tell and
Ser. No. 74/620,602
5
illustrate only information about the principal capabilities and
attributes of applicant's manually operated dry wall lifters. As
such, the specimens are not instruction sheets and are thus
unacceptable as evidence of actual trademark use.
It is settled, as the Senior Examining Attorney
correctly points out in her brief, that invoices, announcements,
order forms, bills of lading, leaflets, flyers, brochures,
publicity releases and other printed advertising materials are
generally not acceptable as specimens of trademark use. See,
e.g., In re Bright of America, Inc., 205 USPQ 63, 71 (TTAB 1979).
Moreover, while the Board in In re Ultraflight Inc., 221 USPQ
903, 906 (TTAB 1984), held that an "assembly instruction manual
packed with applicant's gliders and bearing the 'LAZAIR' mark is
an acceptable specimen of use" because such a specimen was, "by
any reasonable interpretation, part of the goods themselves" and,
hence, "application of the mark to such an 'insert' or
'instruction sheet' is an application of the mark to the goods,"
the Board in its opinion was also careful to state that:
A similar situation would be presented in the
case of a mark applied to a user's guide for
a computer program, which guide must be
considered an integral part of the goods
themselves. By contrast, a package insert
that is no more than an invoice or
advertisement on which the mark appears may
not be proper affixation of the mark to the
goods.
Here, applicant's specimens do not instruct one as to
the assembly, use or operation of its dry wall lifters; instead,
the specimens are nothing more than advertising brochures which
Ser. No. 74/620,602
6
contain eight photographs of applicant's dry wall lifter and
accompanying text or captions that, while respectively depicting
and/or summarizing various capabilities and attributes of the
product, simply do not provide any instructions as to its manner
of assembly, use or operation. Merely illustrating applicant's
dry wall lifter in use and highlighting certain features thereof
is not the same as instructing purchasers and other users of the
product on how to use it.
We agree, therefore, with the following observations
made by the Senior Examining Attorney in her brief:
[A]n examination of the specimens does not
reveal any "how to" instructional
characteristics. The booklet shows various
pictures of the dry wall lifter in use with
captions about the photographs. These
captions include "cradle also tilts
longitudinally (as shown) up to 10 degrees";
"supports sheets on walls up to 11 feet";
"tripod legs fold to allow assembled unit to
pass through doorways"; "easily portable
components" and "easy rolling, 5" casters".
The Examining Attorney fails to see how the
caption "cradle also tilts longitudinally (as
shown) up to 10 degrees" instructs one "how
to" load the product, or how the terms
"easily portable components" instructs [sic]
one "how to" disassemble the product.
... The captions do nothing more than
inform one about the product: it can support
a sheet of dry wall up to 11 feet in length;
the tripod legs can be folded to allow the
unit to pass through doorways without
disassembling it. But the captions fail to
inform one how to assemble the product so
that it will hold that 11[-]foot piece of dry
wall or how to fold the legs so it can be
moved through a doorway. Furthermore, a
photograph of the disassembled dry wall
lifter with the wording "easily portable
components" has no verb, let alone any
Ser. No. 74/620,602
7
instructional value as to how to disassemble
the product in order to make it easily
portable. The specimens do not instruct;
they merely tout characteristics and
capabilities of the product. They are not
instructional manuals or instructional guides
and are therefore not acceptable specimens.
It is thus readily apparent that the specimens
submitted by applicant are just advertising and nothing more.
The photographs of applicant's product and the captions to such
photographs neither illustrate nor describe how applicant's dry
wall lifter is to be assembled, used or otherwise operated.
Furthermore, the fact that applicant's brochures or pamphlets are
placed inside the packaging for its goods does not transform such
advertising, by any reasonable interpretation, into instruction
sheets or any other component of the goods. Applicant's
specimens consequently are unacceptable as evidence of actual
trademark use for its goods.
Decision: The refusal on the ground that the specimens
fail to evidence trademark use is affirmed.
E. W. Hanak
T. J. Quinn
G. D. Hohein
Administrative Trademark Judges,
Trademark Trial and Appeal Board