USA Deview, Inc.

Trademark Trial and Appeal Board

Mar 31, 2008

No. 76613995 (T.T.A.B. Mar. 31, 2008)

Mailed:
March 31, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re USA Deview, Inc.
________

Serial No. 76613995
_______

Richard C. Litman of Litman Law Offices, Ltd. for USA
Deview, Inc.

Melissa Vallillo, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______

Before Quinn, Grendel and Cataldo, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

Applicant USA Deview, Inc. seeks registration on the
Principal Register of the mark DO YOU DEVIEW? (in standard
character form) for goods identified in the application as
“photographic apparatus and instruments, namely, cameras,
closed circuit television cameras; surveillance apparatus
and instruments, namely, charge-coupled device cameras
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 76613995
2
(CCD), closed circuit television (CCTV), parts and fittings
for all the aforesaid goods,” in Class 9.1
The Trademark Examining Attorney has issued a final
refusal to register applicant’s mark on the ground that
applicant has failed to submit an acceptable specimen which
demonstrates trademark use of the mark on the identified
goods. See Trademark Act Sections 1(d)(1) and 45, 15
U.S.C. §§1051(d)(1) and 1127; Trademark Rules 2.56(b)(1)
and 2.88(b)(2), 37 C.F.R. §§2.56(b)(1) and 2.88(b)(2).2
Applicant has appealed the final refusal. After
careful consideration of the record and the arguments of
counsel, we affirm the refusal to register.
The specimen of record upon which applicant relies in
its brief is the webpage screenshot from applicant’s
website depicted below.3 The page is entitled “tamper dome

1 Serial No. 76613995, filed on September 30, 2004. The
application was filed as an intent-to-use application under
Trademark Act Section 1(b), 15 U.S.C. §1051(b). After
publication of the mark and issuance of a notice of allowance,
applicant filed a statement of use on May 24, 2006.

2 The Trademark Examining Attorney also has refused registration
on the ground that applicant has failed to support its substitute
specimens with an affidavit or declaration attesting that the
substitute specimens were in use prior to the time allowed for
filing the statement of use. See Trademark Rule 2.59(b), 37
C.F.R. §2.59(b); TMEP §904.05. In view of our finding that
applicant’s substitute specimens are insufficient in any event,
we need not and do not reach this declaration issue.

3 Applicant also has submitted additional specimens, i.e., a
Product Guide and additional webpage screenshots from its
website. However, the screenshot depicted above is the only
Ser. No. 76613995
3
configurator.” Under the heading “Select a Housing” is the
text “Select a housing to begin the configuration of a
deView modular tamper dome. Hover over product images to
view an expanded list of features.” Below this, four
different models of domes are pictured, described and
identified by model number. Each description includes a
clickable button such as “Select TP30W->” which apparently
is a link which sends the viewer to the next screen and
step in the camera configuration process. The matter
applicant seeks to register, DO YOU DEVIEW?, appears in the
lower left corner of the webpage, above a toll-free
telephone number.

specimen of record upon which applicant relies in its main appeal
brief and its reply brief. We accordingly shall limit our
discussion to this screenshot, which undoubtedly is the specimen
which most strongly supports applicant’s position in this case.
We find in any event that the Product Guide and the additional
screenshot specimens are insufficient as trademark specimens, for
the same reasons that render unacceptable the screenshot upon
which applicant specifically relies as its specimen of use.
Ser. No. 76613995
4

The Trademark Act requires that the statement of use
submitted by an intent-to-use applicant must be accompanied
by “such number of specimens or facsimiles of the mark as
used in commerce as may be required by the Director...”
Trademark Act Section 1(d)(1). Implementing this statutory
provision, Trademark Rule 2.56(a) requires that the
statement of use be accompanied by “one specimen showing
Ser. No. 76613995
5
the mark as used on or in connection with the goods...”
Trademark Act Section 45 provides in pertinent part that a
mark shall be deemed to be used in commerce on goods when
“it is placed in any manner on the goods or their
containers or the displays associated therewith or on the
tags or labels affixed thereto, or if the nature of the
goods makes such placement impracticable, then on documents
associated with the goods or their sale.” Implementing
this statutory provision, Trademark Rule 2.56(b)(1)
provides that “[a] trademark specimen is a label, tag, or
container for the goods, or a display associated with the
goods. The Office may accept another document related to
the goods or the sale of the goods when it is not possible
to place the mark on the goods or packaging for the goods.”
Applicant contends that its webpage screenshot
specimen, depicted above, constitutes and suffices as “a
display associated with the goods.”4 We disagree.

4 Applicant also argues that because the nature of applicant’s
goods makes it impossible to place the mark on the goods or their
packaging, its specimen constitutes and suffices as “another
document related to the goods or the sale of the goods.” To the
extent that applicant is asserting this argument in the
alternative to its primary argument that its specimen suffices as
“a display associated with the goods,” we are not persuaded. We
find that there is nothing about applicant’s identified goods
which would make it impossible to place the mark on the goods or
their packaging, or on a display associated with the goods. See
In re Settec Inc., 80 USPQ2d 1185 (TTAB 2006). Therefore, we
reject applicant’s apparent argument that, if its specimen does
not suffice as “a display associated with the goods,” it suffices
Ser. No. 76613995
6
It is settled that “...a website page which displays a
product, and provides a means of ordering the product, can
constitute a ‘display associated with the goods,’ as long
as the mark appears on the webpage in a manner in which the
mark is associated with the goods.” In re Dell Inc., 71
USPQ2d 1725, 1727 (TTAB 2004). Cf. Lands’ End Inc. v.
Manbeck, 797 F.Supp. 511, 24 USPQ2d 1314 (E.D. Va. 1992).
The webpage specimen upon which applicant relies in
this case, depicted above, includes pictures of applicant’s
goods. We will assume, arguendo and despite the Trademark
Examining Attorney’s contrary contention, that the mark as
it appears in the lower left corner of the webpage is near
enough to and sufficiently “associated with the goods.”
Those elements of the test therefore may be deemed to have
been satisfied. However, we find that the proffered
specimen fails as “a display associated with the goods”
because it does not provide a means of ordering the goods,
as required by the authorities cited above.
At pages 5-6 of its appeal brief, applicant contends
that the webpage:

as “another document related to the goods or the sale of the
goods.” The sole issue in this case is whether the specimen
suffices as “a display associated with the goods,” under the
applicable case law.

Ser. No. 76613995
7
...clearly provides the means necessary to order
the goods, principally “a visible weblink to
order the goods.” ... This means to order the
goods can be established by first reading the
sentence above the goods, “Select the housing to
begin the configuration of a Deview Modular
Tamper Dome.” Further, the top headers state
“Select a Housing” and “Build Camera,” further
reinforcing that this page is about choosing
products for purchase which are highly
customizable, much like the computer in Dell.
The visible web link is shown as a clickable
button next to each photo of the goods stating
“Select [MODEL #1->.” ... The arrow character
further indicates to the consumer visually that
this button will take them to the next step of
the custom ordering process as they configure
their goods for purchase.

Contrary to applicant’s assertions, however, there is
nothing on the webpage which demonstrates that a person
viewing the webpage can actually order or purchase the
goods from the webpage or even from the website as a whole.
The clickable button next to each photograph might send the
viewer to the next screen and the next step in the process
of configuring the product. (We note that the content of
that next screen or linked page is not of record).
However, we cannot conclude from this webpage that the
viewer, upon completing the configuration process, then can
proceed to a screen from which he or she may actually place
an order for the product once it has been configured. On
its face, the webpage demonstrates that the product may be
configured or customized via the website, but it does not
Ser. No. 76613995
8
demonstrate that the product may be ordered or purchased
via the website.
Applicant’s reliance on In re Dell Inc., supra, is
misplaced. In that case, the specimen webpage not only had
a link which allowed the viewer purchasing a computer to
“Customize it,” it also specifically informed the purchaser
that he or she could “Buy Online,” and it provided an
additional link button directing the viewer to “Purchasing
Tools.” No such links or information relating specifically
to the ability to purchase the goods via the website are
present on applicant’s specimen webpage.
Again, on its face, the webpage merely suggests that
the viewer can configure the product via the website; it
makes no mention of or provision of means for actually
ordering the product once it is configured or customized.
This case therefore is distinguishable from In re Dell
Inc., supra, and Lands’ End v. Manbeck, supra, as well as
from In re Valenite Inc., 84 USPQ2d 1346 (TTAB
2007)(webpage provided link to customer service
representatives who took orders for goods). Rather, this
case is more akin to In re Genitope Corp., 78 USPQ2d 1819
(TTAB 2006)(webpage provided links to screens which
provided more information about products, but not to a
means of, or instructions for, ordering the products).
Ser. No. 76613995
9
For these reasons, we find that applicant’s webpage
specimen does not constitute “a display associated with the
goods,” and it therefore does not suffice as a specimen of
trademark use of the mark on the goods identified in the
application.5 We conclude that the matter applicant seeks
to register, DO YOU DEVIEW?, as it appears on the specimens
submitted by applicant, fails to function as a trademark
for the identified goods. It therefore is unregistrable
under Trademark Act Sections 1 and 45.

Decision: The refusal to register is affirmed.

5 For the same reasons, we find that all of the other specimens
submitted by applicant (a Product Guide and more webpage
screenshots; see supra at footnote 3), as to which applicant has
presented no arguments in its briefs, likewise do not suffice as
“display” specimens (or any other acceptable type of specimen).