Blue Teddy, LLC

Trademark Trial and Appeal Board

May 4, 2018

No. 87344899 (T.T.A.B. May. 4, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 4, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Blue Teddy, LLC
_____

Serial No. 87344899
_____

John A. Tang of Strasburger & Price, LLP,
for Blue Teddy, LLC.
J. Ian Dible, Trademark Examining Attorney, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
_____

Before Lykos, Goodman, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Blue Teddy, LLC (“Applicant”) seeks registration on the Principal Register of the
claimed mark CAN YOUR FOUR YEAR OLD READ THIS? OURS CAN. in standard
characters for “Educational services, namely, providing classroom instruction to
children from 2 months to 5 years old,” in International Class 41.1 The Trademark
Examining Attorney has refused registration of Applicant’s claimed mark under

1 Application Serial No. 87344899 was filed on February 22, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), on the basis of Applicant’s claimed first use of the mark
and first use of the mark in commerce in November 2012.
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Sections 1, 2, 3, and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, 1053, and
1127, on the ground that the wording in the claimed mark fails to function as a service
mark. After the Examining Attorney made the refusal final, Applicant appealed to
the Board. The case is fully briefed. We affirm the refusal to register.
I. Record on Appeal
The record on appeal includes:
1. Applicant’s original specimens of use;
2. Pages from the electronic database of the Patent and Trademark Office
showing registrations of slogan marks taking the form of a question, made
of record by Applicant;2
3. Various substitute specimens of use, supported by a declaration of
Applicant’s counsel;3 and
4. Various Internet webpages, including pages from Applicant’s website at
siennakidsacademy.com and from the websites of other providers of
educational services, displaying questions beginning with the words “Can
Your . . .” and answered by the words “Ours Can,” made of record by the
Examining Attorney.4

2 June 29, 2017 Response to Office Action at 5-15. Applicant neither mentioned nor discussed
these registrations in its briefs.
3 Id. at 1, 16-27. In this response, Applicant also amended its identification of services from
“providing a preparatory education to children from 2 months to 5 years old” to “educational
services, namely, providing classroom instruction to children from 2 months to 5 years old.”
4 May 22, 2017 Office Action at 2-9; July 27, 2017 Office Action at 2-17.
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II. Analysis of Failure to Function Refusal
“‘The Trademark Act is not an act to register mere words, but rather to register
trademarks. Before there can be registration, there must be a trademark, and unless
words have been so used they cannot qualify.’” D.C. One Wholesaler, Inc. v. Chien,
120 USPQ2d 1710, 1716 (TTAB 2016) (quoting In re Bose Corp., 546 F.2d 893, 192
USPQ 213, 215 (CCPA 1976)). The Patent and Trademark Office thus “is statutorily
constrained to register matter only if it functions as a mark.” In re Keep A Breast
Found., 123 USPQ2d 1869, 1879 (TTAB 2017).5 “It is well settled that common
laudatory phrases or statements that would ordinarily be used in business or in the
particular trade or industry, are not registrable. . . . Neither are slogans or other
terms that are considered to be merely informational in nature.” In re Hulting, 107
USPQ2d 1175, 1177 (TTAB 2013).
“[T]he central question in determining whether Applicant’s proposed mark
functions as a service mark is the commercial impression it makes on the relevant

5 Section 1 of the Trademark Act specifies the manner in which “the owner of a trademark
used in commerce” or a “person who has a bona fide intent . . . to use a trademark in
commerce” may apply for its registration, while Section 2 of the Act sets forth the
circumstances under which registration of a “trademark by which the goods of the applicant
may be distinguished from the goods of others” may be refused. 15 U.S.C. §§ 1051, 1052.
Although these sections refer to “trademarks,” Section 3 of the Act provides that “[s]ubject to
the provisions relating to the registration of trademarks, so far as they are applicable, service
marks shall be registrable, in the same manner and with the same effect as trademarks,” and
that “[a]pplications and procedure under this section shall conform as nearly as practicable
to those prescribed for the registration of trademarks.” 15 U.S.C. § 1053. Sections 1, 2, and
3, together with Section 45, which defines “service mark” as “any word, name, symbol, or
device, or any combination thereof—(1) used by a person . . . to identify and distinguish the
services of one person . . . from the services of others and to indicate the source of the services,”
15 U.S.C. § 1127, collectively “provide the statutory basis for refusal to register subject
matter that fails to function as a service mark.” Keep A Breast Found., 123 USPQ2d at 1879.
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public (e.g., whether the term sought to be registered would be perceived as a mark
identifying the source of the services).” Keep A Breast Found., 123 USPQ2d at 1879.
“To make this determination we look to the specimens and other evidence of record
showing how the designation is actually used in the marketplace.” In re Eagle Crest
Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (citations omitted). We will first discuss
Applicant’s specimens and the other record evidence before analyzing the commercial
impression that the applied-for mark makes on the relevant consuming public.
A. Applicant’s Original and Substitute Specimens
During prosecution, Applicant submitted three original specimens and 12
substitute ones.6 We reproduce below Applicant’s depiction of its original specimens
in its main brief. 4 TTABVUE 9.

6 February 22, 2017 Application at 3-6; June 29, 2017 Response to Office Action at 16-27.
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We reproduce below six of Applicant’s 12 substitute specimens.7

7 Of the other six, one is a duplicate of original Specimen 3 shown above, while another is
virtually identical to original Specimen 2 shown above. June 29, 2017 Response to Office
Action at 21, 25.
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June 29, 2017 Response to Office Action at 17, 19, 22, 24, 26, and 27.
B. The Other Record Evidence
In connection with the record evidence in addition to Applicant’s specimens, the
Examining Attorney argues that the “more commonly a [slogan or term] is used, the
less likely that the public will use it to identify only one source and the less likely
that it will be recognized by purchasers as a [service mark].” 6 TTABVUE 2 (quoting
Hulting, 107 USPQ2d at 1177). In Hulting, the Board held that the applicant’s
proposed mark “No More RINOs!” failed to function as a mark for various goods in
Classes 16, 25, and 26 because the evidence showed that it was “a commonly used
political slogan meaning ‘No More Republicans In Name Only,’” and that “consumers
are accustomed to seeing the phrase ‘No More RINOs!’ displayed on bumper stickers,
t-shirts, novelty pins and other items from many different sources.” Id. at 1178-79.
Such evidence of third-party use of a phrase or term is common in the cases in which
the Board has found that the phrase or term failed to function as a mark. See, e.g.,
Eagle Crest, 96 USPQ2d at 1229-30 (the evidence showed that the phrase “Once a
Marine, Always a Marine” “is an old and familiar Marine expression” that “is
commonly used in an informational and ornamental manner on t-shirts and various
other retail items produced and/or sold by others”); D.C. One Wholesaler, 120 USPQ2d
at 1716 (the evidence showed that the phrase “I ♥ DC” “has been widely used, over a
long period of time and by large number of merchandisers, as an expression of
enthusiasm, affection or affiliation with respect to the city of Washington, D.C.” and
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that the “marketplace is awash with products that display the term I ♥ DC as a
prominent ornamental feature of such goods.”).
The Examining Attorney made of record various Internet webpages that he claims
show that the “applied-for mark is a slogan or term that is widely used in the
marketplace and commonly used by those in applicant’s trade to merely convey
information about applicant’s or similar education services.” 6 TTABVUE 2. Unlike
the evidence in Hulting, Eagle Crest, and D.C. One Wholesaler,8 however, the
Examining Attorney’s evidence does not show third-party use of the applied-for mark
per se (with one exception discussed in the next paragraph). The third-party uses
instead involve variants of what the Examining Attorney calls “the slogan ‘CAN
YOUR ____ ____? OURS CAN,’” 6 TTABVUE 3, which he argues is used by both
“businesses providing education and training services relating to applicant’s
identified services” to identify “children and students acquiring various impressive
abilities,” id., as well as by “many different businesses for a wide range of goods and
services to convey the informational message that users of their goods and services
experience exemplary results.” Id. The Examining Attorney also claims that
Applicant itself uses variants of “the phrase ‘CAN YOUR ____ ____? OURS CAN.’ in
a common manner to convey a widely recognized informational message about its
services.” Id. at 4.

8 In its main brief, Applicant distinguishes the Hulting and Eagle Crest cases, as well as In
re Volvo Cars of N. Am., Inc., 46 USPQ2d 1455 (TTAB 1998), on the basis of the nature of the
slogans at issue in those cases, 4 TTABVUE 10-11, but as Applicant correctly notes in its
reply brief, “the particular facts of the present case are controlling” with respect to the
registrability of the applied-for mark. 7 TTABVUE 5.
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The third-party use of the applied-for mark itself is shown on a webpage in what
Applicant describes as “an ad featuring the Montessori Academy” in Zionsville,
Indiana. 4 TTABVUE 12. We depict this ad below (highlighting supplied by the
Examining Attorney).

July 27, 2017 Office Action at 13. Applicant dismisses this particular use of the
applied-for mark because it “comes four years after [Applicant’s] extensive use of the
Mark in connection with educational services,” 4 TTABVUE 12, and because it “is
embedded in the textual matter” in the ad. Id. at 13. Neither criticism vitiates this
evidence. We agree with the Examining Attorney that “the issue at hand is not
whether applicant has a priority right to use this wording; rather, it is whether the
wording would be perceived by the relevant public as merely informational matter
about applicant’s services and not as an indicator of the source of those services.” 6
TTABVUE 5. This third-party use of the applied-for mark in an informational
manner to tout the efficacy of the user’s educational program is probative of whether
the wording functions as a mark when it is used by Applicant for the same services.
At the same time, this single use has limited value, particularly in comparison to the
quantity of third-party uses of the applied-for marks in the Hulting, Eagle Crest, and
D.C. One Wholesaler cases discussed above.
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The Examining Attorney also made of record five pages from Applicant’s website
on which Applicant has used variants of the applied-for mark. These pages are all in
the same format as original Specimen 2 shown above. We reproduce four examples
below.9

9 One of the other two specimens is virtually identical in substance to original Specimen 2
shown above. July 27, 2017 Office Action at 2.
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July 27, 2017 Office Action at 3-6.
The Examining Attorney argues that these pages “convey the same informational
message used by numerous different sources . . . namely, that applicant’s services
imbue its users with exceptional abilities.” 6 TTABVUE 4. Applicant never addresses
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this evidence.10 We agree with the Examining Attorney that Applicant’s uses of
multiple variants of the applied-for mark convey to parents, the prospective
consumers of Applicant’s services of “providing classroom instruction to children from
2 months to 5 years old,” the message that their children will receive instruction
providing them with various reading, writing, and mathematical skills at the ages of
two, three, four, and five that other children of comparable ages may not have.
Applicant’s uses of variants of the applied-for mark are probative of how the applied-
for mark itself would be perceived.
These pages are also noteworthy because of the manner of their display of the
symbol “™”, which is replicated on two of Applicant’s specimens of use of the applied-
for mark:11

Applicant’s “‘mere intent that a term function as a trademark is not enough in and of
itself, any more than attachment of the trademark symbol would be, to make a term
a trademark.’” In re Aerospace Optics Inc., 78 USPQ2d 1861, 1864 (TTAB 2006)
(quoting In re Manco Inc., 24 USPQ2d 1938, 1941 (TTAB 1992)); see also In re Empire
Tech Dev. LLC, 123 USPQ2d 1544, 1556 n.23 (TTAB 2017); In re Remington Prods.

10 Applicant briefly discusses the “examples showing that ‘Can Your ____ _____? Ours Can.
has been used by other companies . . .’” that were “introduced by the Examining Attorney on
May 22, 2017 and July 27, 2017,” 7 TTABVUE 7, but not its own uses.
11 Applicant argues that on “some of the specimens, [it] uses the TM symbol to inform the
public of the trademark slogan,” 7 TTABVUE 10, but the only use of the symbol together with
the applied-for mark in the record is on original Specimen 2 and its counterpart substitute.
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Inc., 3 USPQ2d 1714, 1715 (TTAB 1987); In re Morganroth, 208 USPQ 284, 287
(TTAB 1980) (“[T]he use of the ‘TM’ does not, ipso facto, make a trademark or service
mark out of the term or expression with which it is used.”). But the uses of the ™
symbol in the record here make it appear that Applicant claims rights in the words
“OURS CAN.,” not in the entire phrase. The ™ symbol appears directly adjacent to,
and in the same bright green color as, the words OURS CAN in capital letters, and
those words are set off from the words in the rest of the claimed mark, which are
displayed in blue and with only initial capital letters. We find that Applicant’s use of
the ™ symbol in this manner does not support Applicant’s claim that the words CAN
YOUR FOUR YEAR OLD READ THIS? OURS CAN. function as a mark.
Finally, the Examining Attorney made of record multiple third-party webpages
displaying a question beginning with the words “Can your ____” and an answer
consisting of the words “Ours Can.”12 We reproduce two examples below.

12 May 22, 2017 Office Action at 2-9; July 27, 2017 Office Action at 8-18.
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May 22, 2017 Office Action at 2, 4 (highlighting supplied by the Examining Attorney).
The Examining Attorney argues that “the repeated use of this slogan creates the
public perception that the phrase is a common message that is not specific to any one
service.” 6 TTABVUE 3. Applicant counters that this evidence is not probative of how
the applied-for mark will be perceived because “the phrases in all the evidence
proposed by the Examining Attorney were not physically separated from the textual
matter, the phrases’ typeface were mostly the same as the accompanying text, and
such phrases could be perceived as parts of expressions rather than separate marks.”
4 TTABVUE 13. In its reply brief, Applicant acknowledges that the question-and-
answer format of these slogans “may be an entrancing phrase” with “appeal,” 7
TTABVUE 7, but cites Plus Prods. v. Plus Discount Foods Inc., 722 F.2d 999, 222
USPQ 373 (2d Cir. 1983), for the proposition that “the courts have found that frequent
use of a particular term while capable of rendering the mark weak, does not render
the mark unregistrable.” 7 TTABVUE 7.
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These arguments are unavailing. Applicant’s claim in its main brief that these
uses of similar slogans “would be perceived as parts of expressions rather than
separate marks,” but that its slogan “is used in a different and distinct manner as it
stands independent of textual matter and it stands out in all advertisements,” 4
TTABVUE 13, effectively concedes that such slogans, including Applicant’s own, can
be non-source identifying words depending upon the manner of their use. Applicant’s
citation of the Plus Prods. decision in its reply brief for the proposition that “courts
have found that frequent use of a particular term while capable of rendering the mark
weak, does not render the mark unregistrable,” 7 TTABVUE 7, effectively concedes
that the Examining Attorney’s evidence shows “frequent use” of similar slogans. 7
TTABVUE 7. The Plus Prods. decision is inapposite, however, because it addressed
the weakness of the plaintiff’s PLUS mark resulting from uses of the word PLUS in
third-party marks, not whether the word PLUS functioned as the plaintiff’s mark in
the first instance. 222 USPQ at 378-79.13
Although almost all of the third-party uses in the record do not involve use of the
applied-for mark per se, they nevertheless have some probative value on the issue of

13 In that regard, Applicant argues in its reply brief that the applied-for mark “is not so highly
descriptive as to be incapable of acquiring distinctiveness as a trademark.” 7 TTABVUE 7.
That claim is irrelevant. “[T]he applied-for mark has not been refused as descriptive under
Section 2(e)(1) of the Trademark Act, [and] the fact that the applied-for mark may be
registrable if it were used in a different context is not the issue.” Aerospace Optics, 78
USPQ2d at 1864. The issue is also not whether, as Applicant claims, the applied-for mark
“makes the direct association with the services described in [Applicant’s] trademark
application . . . .” 7 TTABVUE 5-6. See generally In re Pitney Bowes, Inc., 125 USPQ2d 1417
(TTAB 2018); In re WAY Media, Inc., 118 USPQ2d 1697 (TTAB 2016); Keep A Breast Found.,
123 USPQ2d at 1876. It is whether the applied-for mark would be perceived as a source-
identifier for those services.
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how consumers will perceive the applied-for mark. Cf. D.C. One Wholesaler, 120
USPQ2d at 1716 (non-trademark significance of the expression I ♥ DC as an
expression of enthusiasm with respect to the city of Washington, D.C. was “reinforced
by the fact that similar expressions in the form ‘I ♥ ____’ have also been widely used
to express such enthusiasm with respect to other places and things”). We can infer
from these uses, in a wide variety of fields, that consumers of Applicant’s services
may be familiar with the use in marketing of a rhetorical question “Can Your ____?”
answered with “Ours can” to make a claim of product or service quality or efficacy.
The Examining Attorney’s evidence of the use of similar slogans by third parties,
and by Applicant itself, provides the backdrop against which to decide the ultimate
issue “of the commercial impression [the applied-for mark] makes on the relevant
public (e.g., whether the term sought to be registered would be perceived as a mark
identifying the source of the services).” Keep A Breast Found., 123 USPQ2d at 1879.
We turn to that issue now.
C. The Commercial Impression of the Applied-For Mark
Applicant argues that in each of its specimens, the applied-for “mark creates a
commercial impression separate from the other elements of the advertisement,” 4
TTABVUE 8, because it is set off from the surrounding text by the use of “significantly
larger typeface” and “various combinations of bolding, capitalization, larger font, and
prominent placement styles.” Id. The Examining Attorney responds that in many of
Applicant’s specimens, the proposed mark “would be perceived as a question referring
to the text, and not as a source indicator,” 6 TTABVUE 4, and that in general “the
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use of the mark in the specimens further corroborates the informational nature of the
mark.” Id. We agree with the Examining Attorney that the specimens of use do not
show that consumers are likely to view the applied-for mark as an indicator of source,
but instead as an informational statement about the quality or efficacy of Applicant’s
educational services.
As shown above, the wording in the applied-for mark appears on the specimens in
a variety of formats. A specimen displayed by Applicant in its reply brief, 7 TTABVUE
6, and discussed below, and three other specimens display the applied-for mark
horizontally as a single phrase.14 Six specimens display the words in a stacked
format.15 In four others, the words “Can Your Four Year Old Read This?” are
separated from the words “Ours Can” by pictures,16 with three showing the question
at the top of the page and the answer at the bottom. For the reasons discussed below,
the applied-for mark would be understood as informational in all of its various
depictions.
As an initial matter, the words in the applied-for mark inherently lend themselves
to being understood as providing information about Applicant’s services. The question
portion, “Can Your Four Year Old Read This?,” focuses parents’ attention on those
words as language, not branding, because parents are asked to consider whether their
children are capable of reading “This,” which is generally a reference to the specific

14 Original specimen 1; June 29, 2017 Response to Office Action at 22-23.
15 Original specimens 2-3; June 29, 2017 Response to Office Action at 16-17, 20-21.
16 June 29, 2017 Office Action at 18-19, 24, 27.
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words that form the question, and occasionally a reference to other words that appear
in a particular specimen. The answer portion, “Ours Can.,” declares that four-year
olds educated by Applicant are capable of reading the preceding words, or the other
words. In effect, the question serves as a hypothetical reading test for four year-olds,
and the answer affirms that Applicant’s students can pass that test.
As noted above, Applicant argues that the applied-for mark is set off from the
surrounding text by the use of “significantly larger typeface” and “various
combinations of bolding, capitalization, larger font, and prominent placement styles.”
4 TTABVUE 8. This is generally true with respect to all of Applicant’s specimens, but
the informational nature of the applied-for mark as a hypothetical reading test,
followed by a statement that the test can be passed by Applicant’s students, is
nevertheless reinforced in different ways on the specimens. In two specimens, the
applied-for mark is written on a blackboard in the manner in which students would
be called upon to read words during classroom instruction. June 29, 2017 Response
to Office Action at 17, 20. In two specimens, the question “Can Your Four Year Old
Read This?” appears in quotation marks, which explicitly draws attention to the
words themselves. Id. at 16, 27.
In five specimens, the question and answer appear separated by, or in close
proximity to, pictures showing children reading, in a format that again draws
attention to the specific language of the question. Id. at 18-19, 21, 24, 27. Three
specimens attribute the statements “I can!,” “I can too!,” or “I can read this!” (a first-
person answer to the question “Can Your Four Year Old Read This?”) to actual
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students, id. at 17, 20, 23, and one of these provides the texts of various short
passages for which the pictured students proclaim “I can read this!” Id. at 23. Finally,
as discussed immediately below, in two specimens the applied-for mark is
accompanied by a statement at the bottom of the advertisement regarding the actual
ability of a majority of Applicant’s pre-kindergarten students to read and write.
In its reply brief, Applicant reproduced the substitute specimen displayed below,
7 TTABVUE 6, as evidence that a “customer is likely to regard the phrase as a source-
indicator for the Services” Id. at 6-7. This specimen instead aptly illustrates the
informational nature of the words in the applied-for mark, and shows why they would
not be perceived as a service mark as they are used by Applicant.

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In this specimen and one other,17 an asterisk appears to the right of the words
“Can Your Four Year Old Read This? Ours Can.” The asterisk directs the reader’s
attention to the following sentence in the lower left-hand corner of the page:
*The majority of SKA’s pre-kindergarten class can read and write.
Applicant argues that the applied-for mark at most “denotes ‘a vague desirable
characteristic or quality’” and “does not describe any real characteristic or quality,” 7
TTABVUE 7 (quotation omitted), but we can infer from Applicant’s use of the asterisk
and the accompanying statement that Applicant anticipated that readers would
understand the words “Can Your Four Year Old Read This? Ours Can.” to be an
explicit claim about the general efficacy of Applicant’s services that required
substantiation to avoid possible exposure to liability for false advertising.
The applied-for mark is also accompanied in this specimen by text in which
Applicant states that “[o]ur academy’s program is designed to have your child reading
and writing by the age of four, and we do this by instilling in them a love of learning.”
June 29, 2017 Response to Office Action at 26.18 This text reinforces the informational
nature of the applied-for mark.
Finally, this specimen, like every specimen in the record except one, displays three
clear source identifiers,19 which always appear in close proximity to each other and
in what is essentially a standard presentation: (1) the mark “Sienna Kids Academy,”

17 June 29, 2017 Response to Office Action at 22.
18 The same text appears on another specimen. June 29, 2017 Response to Office Action at
19.
19 Two of the three source identifiers appear on the exception. Id. at 25.
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(2) what Applicant calls its “‘SK’ shield logo,” 7 TTABVUE 7, and (3) Applicant’s
claimed mark “A Prep School for Elementary™.”20 We depict below an example of
that presentation.

It is, of course, “settled that a product label or in the case of a service mark, an
advertisement or similar material can bear more than one mark without diminishing
the identifying function of each,” Morganroth, 208 USPQ at 287, but the “salient
question is whether the designation in question, as used, will be recognized in itself
as an indication of origin for the particular product or service.” Id. Given the
inherently informational nature of the applied-for mark, the ubiquitous presence of
these other clearly-denominated marks on Applicant’s specimens makes it unlikely
that the applied-for mark “will be recognized in itself as an indication of origin for the
particular product or service.” Id.
Against the backdrop of the third-party uses of the similarly-structured “Can Your
___? Ours Can.” question-and-answer slogans in the record, and Applicant’s own uses
of similar slogans referring to the math and writing skills of its students of various
ages, “the manner in which the applied-for mark is being used does not support a
finding that potential customers would perceive it as a [service] mark.” Aerospace

20 Unlike with the applied-for mark, the ™ symbol appears with this mark on two of the three
original specimens (Specimens 2 and 3 above), and on all but one of the substitute specimens.
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Optics, 78 USPQ2d at 1864. “The term fails to function as a mark not only because of
the informational nature of the term, but also because of the way it appears on the
specimen[s].” Id.
Decision: The refusal to register is affirmed.