Atlas Media Corp.

Trademark Trial and Appeal Board

Mar 6, 2009

No. 76685286 (T.T.A.B. Mar. 6, 2009)

Mailed: March 6, 2009
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Atlas Media Corp.
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Serial No. 76685286
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Myron Amer, Esq. for Atlas Media Corp.

Rudy R. Singleton, Trademark Examining Attorney, Law Office
102 (Karen M. Strzyz, Managing Attorney).
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Before Hairston, Grendel and Bergsman, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Atlas Media Corp. has filed an application to register
the mark HOW NOT TO DIE (standard character form) for
services ultimately identified as “television entertainment
and education, namely, a continuing program about longevity
accessible by television” in Class 41.1

1 Application Serial No. 76685286, filed December 26, 2007,
alleging a date of first use and first use in commerce of March
1, 2007.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 76685286
2
The trademark examining attorney has refused
registration on the ground that the specimen of record is
unacceptable because it fails to show service mark use of
HOW NOT TO DIE for applicant’s identified services.
Sections 1 and 45 of The Trademark Act.
When the refusal was made final, applicant appealed.
Briefs have been filed. We affirm the refusal to register.
Applicant’s specimen, reproduced below, consists of a
sheet of paper upon which the mark and other wording is
stamped. Applicant characterizes the specimen as
promotional material.

Ser No. 76685286
3
The examining attorney maintains that the specimen
makes no reference to rendering a program about longevity
accessible by television, and consumers, therefore, will
not perceive the involved mark as identifying the source of
such services.
Applicant, on the other hand, argues that the specimen
is an acceptable as it shows use of the mark in connection
with the identified services. Applicant has submitted the
declaration of its president, Bruce David Klein, who
states, in pertinent part, that:
2. [T]he business of applicant is to broadcast on
television service mark-identified ongoing series
of television programs as exemplified by Reg. Nos.
2,193,349; 2,597,638 and 3,265,541 in the plastic
folder annexed hereto;

3. The specimen of record is the practice in the
trade of carrying on the business of the
registrations of the plastic folder; …

Accompanying Mr. Klein’s declaration are copies of the
registrations referenced therein. Each of the
registrations is owned by applicant and covers television
entertainment related services.
Trademark Rule 2.88 provides, in part, that a
statement of use must include one specimen showing the mark
as used on or in connection with the sale or advertising of
the goods or services in commerce. Further, Trademark Rule
2.56(b)(2) specifies that a “service mark specimen must
Ser No. 76685286
4
show the mark as actually used in the sale or advertising
of the services.” Section 45 of the Trademark Act
provides, in part, that a service mark is used in commerce
“when it is used or displayed in the sale or advertising of
services and the services are rendered in commerce …”
To be an acceptable specimen of use of the mark in the
sale or advertising of the identified services, there must
be a direct association between the mark sought to be
registered and the services specified in the application,
and there must be sufficient reference to the services in
the specimen to create this association. In re Monograms
America Inc., 51 USPQ2d 1317 (TTAB 1999). It is not enough
that the term alleged to constitute the mark be used in the
sale or advertising; there must be a direct association
between the term and the services. In re Johnson Controls
Inc., 33 USPQ2d 1318 (TTAB 1994); and Peopleware Systems,
Inc. v. Peopleware, Inc., 226 USPQ 320 (TTAB 1985). The
mark must be used in such a manner that it would be readily
perceived as identifying the source of such services. In
re Advertising & Marketing Development, Inc., 821 F.2d 614,
2 USPQ2d 2010 (Fed. Cir. 1987); In re Adair, 45 USPQ2d 1211
(TTAB 1997); and In re Metrotech, 33 USPQ2d 1049 (Com’r
Pats. 1993).
Ser No. 76685286
5
Applicant seeks registration of HOW NOT TO DIE for
“television entertainment and education, namely, a
continuing program about longevity accessible by
television,” but nowhere is a television program mentioned
on the specimen. Although the specimen also includes the
wording “TIPS ON LIVING LONGER AND HEALTHIER FROM AMERICAS
MOST FAMOUS MEDICAL EXAMINER,” again, there is nothing on
the specimen to indicate that such “tips” will be presented
by way of a television program. Thus, the required direct
association between applicant’s mark HOW NOT TO DIE and the
identified services cannot be made by consumers. In sum,
there is no reference of any kind to the identified
services, and no association between the alleged mark and
the identified services. Thus, we agree with the examining
attorney that the specimen is not acceptable because it
fails to show use of HOW NOT TO DIE in connection with the
identified services.
Applicant’s president states that applicant is in the
business of broadcasting television programs. However, the
issue before us is not whether applicant in fact offers a
continuing program about longevity accessible by
television. We will presume that it does. The question is
whether the specimen shows use of the mark for the
identified services. Again, the specimen is a sheet of
Ser No. 76685286
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paper upon which the mark HOW NOT TO DIE and TIPS ON LIVING
LONGER AND HEALHIER FROM AMERICAS MOST FAMOUS MEDICAL
EXAMINER is stamped; it makes no reference to a television
program.
Furthermore, the fact that applicant owns other
registrations for marks which cover television
entertainment related services is not persuasive of a
different result in this case. Our task in this ex parte
appeal is to determine whether the specimen of record
evidences service mark use of HOW NOT TO DIE for the
identified services. Applicant’s other registrations are
irrelevant to the issue of the acceptability of the
specimen in this case.
In view of the foregoing, we find that the specimen of
record does not evidence service mark use of HOW NOT TO DIE
for the identified services.
Decision: The refusal to register is affirmed.