Daniel Brotman

Trademark Trial and Appeal Board

Mar 19, 2001

No. 75574820 (T.T.A.B. Mar. 19, 2001)

03/19/01
Paper No. 9
TEH
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Daniel Brotman
________
Serial No. 75/574,820
Serial No. 75/576,365
_______
Keith S. Orenstein of Orenstein & Orenstein, L.L.C. for Daniel
Brotman.
Teresa A. Lee, Trademark Examining Attorney, Law Office 111
(Craig Taylor, Managing Attorney).
_______
Before Simms, Bucher and Holtzman, Administrative Trademark
Judges.
Opinion by Holtzman, Administrative Trademark Judge:
Daniel Brotman has filed two applications to register the
mark URBAN RHYTHM, one for "music entertainment in the nature of
live musical performance"1 and the other for "sound recordings,
namely compact discs and audio cassettes, featuring musical
1 Serial No. 75/574,820, filed October 21, 1998, alleging dates of
first use and first use in commerce in March 1993.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/574,820 and 75/576,365
2
performance."2
Registration has been finally refused under Section 2(e)(1)
of the Trademark Act on the ground that applicant's mark is
merely descriptive of applicant's goods and services.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs.3 An oral
hearing was not requested. Because the issues in these two
applications are substantially the same, the appeals have been
consolidated and are being treated in a single decision.
The Examining Attorney argues that URBAN RHYTHM is
descriptive of a particular genre or style of music, such as
jazz, blues, rock or rap, as well as "a particular sound or
rhythm" incorporated in such music, i.e., that urban rhythm beats
are characteristic of such music. In support of her position,
the Examining Attorney has made of record numerous excerpts from
the NEXIS database and printouts from several Internet websites
containing references to "urban rhythm" or "urban rhythms."
Applicant argues, based on dictionary definitions for the
individual words "urban" and "rhythm," that the two words when
combined "do not have any discernible meaning" and that unlike
2 Serial No. 75/576,365, filed October 23, 1998, alleging a bona fide
intention to use the mark in commerce.
3 Applicant filed a reply brief only in connection with application
Serial No. 75/574,820.
Ser. No. 75/574,820 and 75/576,365
3
the style of music known as, for example, "rhythm and blues" the
evidence does not reflect any particular species, style, type or
sound of music called "urban rhythm." According to applicant,
the evidence does not show that "urban rhythm" is commonly used
as a description of music but only that the terms "urban" and
"rhythm" appear often in the press. Applicant points out that
none of the articles which do refer to "urban rhythm" explain
what is actually meant by "urban rhythm" or convey a clear sense
of what it is. Applicant maintains that, in fact, "urban rhythm"
has no particular or fixed meaning but rather means basically
whatever the speaker wants it to mean. While acknowledging that
"[I]t may be that such a meaning will emerge in the future"
applicant believes that "this has not yet happened."
A term is merely descriptive within the meaning of Section
2(e)(1) if it immediately conveys knowledge of the ingredients,
qualities, or characteristics of the goods or services with which
it is used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). Moreover, the question of whether a particular term
is merely descriptive must be determined not in the abstract, but
in relation to the goods or services for which registration is
sought, the context in which the term is used, and the possible
significance that the term is likely to have to the average
purchaser as he encounters the goods or services in the
Ser. No. 75/574,820 and 75/576,365
4
marketplace. See In re Engineering Systems Corp., 2 USPQ2d 1075
(TTAB 1986).
We agree with the Examining Attorney that the term URBAN
RHYTHM when used in connection with musical performances and
sound recordings directly conveys information about the type of
the music performed and recorded by applicant, clearly a
significant aspect of both the goods and the services.4
It is clear that "urban rhythm" is a coined phrase and that
it has only recently become part of the music vernacular. Thus,
it is not surprising that the conventional dictionary meanings of
the individual words "urban" and "rhythm" would not support the
descriptive meaning of the phrase as a whole. However, the NEXIS
and Internet references made of record by the Examining Attorney
clearly demonstrate that a type of music is referred to as "urban
rhythm." Examples of the articles taken from the NEXIS database
are reproduced below (emphasis added):
In fact, his cutting edge sound and style, birthed in
straight-ahead jazz, soaked in urban rhythm, bop, hip-hop
and saturated with street-beat poetry, is like no other
coming together of those potent, often denigrated genres.
New York Amsterdam News. (September 30, 1995).
The Yellowjackets (contemporary jazz), Rick Braun (smooth-
jazz trumpeter), Eric Marienthal (alto sax in the Cannonball
Adderly tradition), The Phil Woods Quintet (saxophone-based)
4 Whether the term may have some meaning in other "non-musical"
contexts does not change its descriptive connotation in relation to the
identified goods and services.
Ser. No. 75/574,820 and 75/576,365
5
and Liquid Soul (urban rhythm, funk, acid jazz). The
Florida Times-Union (Jacksonville, FL). (September 2,
1999); and in a related story:
The boundary-busting group fearlessly mixes urban
rhythm, funk, acid jazz with impeccable musicianship to
create a contagious sound that's bringing jazz back to
the dance floor. The Florida Times-Union (Jacksonville,
FL). (November 7, 1999).
Garth Trinidad, host of the weeknight KCRW, 89.9-FM show
Chocolate City--officially billed as a "smooth, creamy mix
of urban rhythm and soul"--hosts a new Friday night Club
downstairs in the cabaret at Luna Park, with a rotating host
of DJs.... New Times Los Angeles. (July 15, 1999).
WMNF is known for its eclectic programming, all the way from
bluegrass to punk rock. At first K was slated to do a
rhythm-and-blues, reggae show. "Then the station manager
asked what my favorite form of music was. Of course I said
hip hop" - the latest style in urban rhythm music. St.
Petersburg Times. (February 21, 1988).
MacIsaac drives fussy purists crazy with his irreverent
musical hybridization - the 21-year-old Cape Breton
fiddler's music is based in traditional reels and jigs, but
it's expanded to include rock and urban rhythm elements.
The Denver Post. (June 21, 1997).
Heading off midcareer fatigue at the pass, Mellencamp shook
things up for his 14th and latest album, "Mr. Happy Go Lucky"
(Mercury Records). He invited New York dance club disc
jockey and remix wizard Junior Vasquez to help produce a
batch of new songs replete with processed urban rhythm
tracks and thick, repetitive beats. The Atlanta Journal and
Constitution. (September 22, 1996);
The following excerpts from third-party Internet websites
further illustrate the descriptive meaning of "urban rhythm" in
the music field (emphasis added):
Toronto feels the Rhythm! From Wednesday, August 26 -
Saturday, August 29, 1998, the JVC Urban Rhythm Festival
(formerly the JVC Acid Jazz Groove Festival) continues the
exploration of jazz vibes in the urban rhythm, including
street soul, jazz funk, spoken word, hip hop, dub, drum n'
Ser. No. 75/574,820 and 75/576,365
6
bass, Latin, house, world and everything in between. Urban
Rhythm Musical Festival web page.
And Now For Something Completely Different...1998 in
Review...Morricone's literate New-Romantic chorales couple
with urban rhythm tracks proved that there is fertile ground
here for any composer willing to acknowledge that rap styles
and electronic grooves are good for more than the pseudo-
terrorization of WASP audiences. Film Score Monthly (The
Online Magazine of Motion Picture and Television Music
Appreciation) web page.
The evidence shows that "urban rhythm" is used to identify a
particular form or style of music in much the same way as "rock,"
"hip hop," and "rhythm and blues" are used in those articles to
refer to other more or less familiar types of contemporary music.
It is not especially important that the term is not defined in
those references or that the particular characteristics of the
music are not explained or revealed. Applicant would not dispute
that, for example, "hip hop" and "alternative rock" are
recognized types of music (brief p.5). Yet those terms, while
mentioned in some of the identified stories, are not specifically
defined either. The point is that the issue is not whether the
general public has a precise, well-defined understanding of the
elements of "urban rhythm" music, or knowledge of, for example,
its structure, type of rhythm or chord progressions. In fact,
the general public's understanding of the term is not even
particularly relevant. The important consideration is whether
the term has a descriptive meaning to the segment of the public
Ser. No. 75/574,820 and 75/576,365
7
who will be purchasing applicant's goods and services. See In re
Northland Aluminum Prods., Inc., 777 F.2d 1556, 1559, 227 USPQ
961, 963 (Fed. Cir. 1985).
It seems clear that the cited NEXIS and Internet articles
are directed to a specialized audience, that is, those
individuals who are already familiar with or knowledgeable about
zydeco, hip hop, urban rhythm or the other music forms identified
in those articles, and who would therefore not require any formal
definition of those terms.5 The relevant purchasers of
applicant's recordings and patrons of applicant's concerts will
similarly recognize the meaning of URBAN RHYTHM in relation to
those goods and services and understand (or assume) that
applicant is providing performances and sound recordings of
"urban rhythm" music.6
In view of the foregoing, we find that URBAN RHYTHM when
used in connection with applicant's recordings and performances,
5 It is for this reason that the relevant public will understand that
the stories referring to an "urban rhythm track" or "urban rhythm
section" of a band merely identifies the type of music performed on
those tracks or by that section of the band.
6 We note applicant's claim that none of the evidence describes the
particular music produced by applicant. However, the descriptiveness
of a mark is determined on the basis of the identification of goods and
services rather on the type of music or sound actually performed or
recorded. In the absence of any such restriction, it is presumed that
applicant is performing and recording the type of music named in the
mark. See, e.g., In re Associated Theatre Clubs Co., 9 USPQ2d 1660
(TTAB 1988).
Ser. No. 75/574,820 and 75/576,365
8
would be readily understood by relevant purchasers to describe a
significant characteristic of those goods and services.
Decision: The refusal to register in each application is
affirmed.