Gospel Music Channel, LLC

Trademark Trial and Appeal Board

Dec 22, 2008

No. 77063083 (T.T.A.B. Dec. 22, 2008)

Mailed: 12/22/08

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Gospel Music Channel, LLC
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Serial No. 77063083
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David M. Silverman of Davis Wright Tremaine for Gospel
Music Channel, LLC.

Michael J. Souders, Trademark Examining Attorney, Law
Office 115 (J. Brett Golden, Acting Managing Attorney).
_______

Before Quinn, Grendel and Holtzman, Administrative
Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Gospel Music Channel, LLC filed an application to
register the mark GOSPEL MUSIC CHANNEL RADIO NETWORK
(“GOSPEL MUSIC” and “RADIO NETWORK” disclaimed) for “radio
program syndication” in International Class 411
The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 77063083, filed December 13, 2006,
alleging a bona fide intention to use the mark in commerce.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser. No. 77063083
2
§1052(e)(1), on the ground that applicant’s mark, when used
in connection with applicant’s services, is merely
descriptive of them. Registration also was refused in view
of applicant’s failure to comply with a requirement to
submit additional information under Trademark Rule 2.61(b).
When the refusal to register was made final, applicant
appealed. Applicant and the examining attorney filed
briefs.
Requirement for Information
The examining attorney, in the first Office action,
indicated that additional information about applicant’s
services was required to permit proper examination of the
application. See Trademark Rule 2.61(b); and TMEP §814 (5th
ed. 2007). The examining attorney further stated that
“[t]he submitted factual information must make clear what
the services are and how they are rendered, their salient
features, and their prospective customers and channels of
trade.”
Applicant’s response was entirely silent on this
requirement. The examining attorney, in his final refusal,
noted applicant’s failure to respond, and made final the
requirement for additional information.
Applicant then filed a request for reconsideration,
accompanied by an excerpt from Wikipedia captioned
Ser. No. 77063083
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“Broadcast Syndication.” In its request for
reconsideration, applicant referred to the Wikipedia
explanation in arguing against the refusal to register.
Applicant also maintained its contention that the mark is
not merely descriptive.
In denying the request for reconsideration, the
examining attorney stated that he must “adhere to the final
refusal as written since no new facts or reasons have been
presented that are significant and compelling with regard
to the point at issue.” While the examining attorney went
on to address the mere descriptiveness refusal, no mention
was made of the requirement for additional information.
Applicant’s brief likewise is silent on the
requirement, applicant apparently believing that the
requirement had been met by the material attached to its
request for reconsideration.
In his appeal brief, the examining attorney again
asserted that applicant failed to comply with this
requirement, framing this failure as one of the two issues
on appeal. The examining attorney now notes the Wikipedia
evidence, making reference to the definition of
“syndication” contained therein. The examining attorney
indicates, however, that while the evidence provided some
insight into syndication services, “many questions remain
Ser. No. 77063083
4
unanswered that would permit proper examination of the
application.” The examining attorney further contends
“applicant’s submission of a single source from the
Internet that is unrelated to applicant is insufficient to
meet the requirement because it fails to provide specific
information regarding the applicant and its services.”
Applicant, in its reply brief, responds by essentially
contending that the examining attorney should have
addressed, in his denial of the request for
reconsideration, any deficiency in applicant’s response to
the requirement for more information. According to
applicant, it is “inappropriate for the Examining Attorney
to have accepted Applicant’s additional evidence as
sufficient for purposes of denying reconsideration and then
to allege for the first time in his Appeal Brief that the
requirement for additional information was not fully
satisfied.”
We agree with applicant’s general assessment. It was
incumbent upon the examining attorney to indicate in his
denial of the request for reconsideration that the
information submitted with the request did not meet the
requirement for additional information. In saying this we
recognize that applicant’s request for reconsideration was
filed on the last day of the six-month period in which to
Ser. No. 77063083
5
respond to the final refusal; thus, one might argue that,
even if the examining attorney had specifically maintained
the finality of the requirement, applicant was out of time
in which to cure the insufficiency. However, in the event
additional information had been subsequently submitted
after the denial of the request for reconsideration in an
attempt to meet the requirement, the Board might well have
remanded the application to the examining attorney. See
TBMP §§ 1205.01 and 1209.04 (2d ed. rev. 2004) [Good cause
may be found when an attempt is made to comply with a
requirement; in determining whether good cause has been
shown, the Board will consider both the reason given and
the point in the appeal at which the request for remand is
made.].
Given the examining attorney’s silence on this point
in his denial of the request for reconsideration, we find
that he waived his right to maintain the objection in his
brief.
Accordingly, we deem the requirement to submit
additional information to be moot.
Mere Descriptiveness
Applicant, while conceding the words “Gospel Music
Channel” and “Radio Network” may be descriptive of its
broadcasting and related services, argues that the words
Ser. No. 77063083
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are not merely descriptive of “radio program syndication
services.” According to applicant, its proposed mark
GOSPEL MUSIC CHANNEL RADIO NETWORK requires imagination to
determine how the mark relates to radio program syndication
services. Although applicant has disclaimed the words
“Gospel Music” and “Radio Network,” it maintains that the
term “Channel” is arbitrary with respect to the identified
services. Applicant places significant reliance on the
examining attorney’s statement that the “evidence
establishes that the GOSPEL MUSIC CHANNEL is a well-known
cable channel and the source of various services related to
gospel music” and that the “evidence demonstrates that the
relevant purchasing public will immediately recognize the
wording ‘GOSPEL MUSIC CHANNEL’ as the source of the
identified services.” Applicant submitted copies of two
prior registrations that it owns, and a Wikipedia entry
covering “Broadcast Syndication.”
The examining attorney argues that applicant’s mark is
a combination of descriptive terms that, when considered as
a whole, is merely descriptive of applicant’s services.
According to the examining attorney, the term is merely
descriptive because “‘gospel music channel’ describes the
source or provider of the services using merely descriptive
wording.” The examining attorney also argues that
Ser. No. 77063083
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purchasers “will immediately understand that the radio
syndication services are for gospel music programming
produced by a gospel music channel and offered over a radio
network.” Another argument is the term “channel” is
descriptive on its own in that it “identifies that the
applicant itself is a radio and television station and that
the services are for use by radio stations throughout the
country and the world.” In support of the refusal the
examining attorney submitted dictionary definitions of the
terms “gospel music” and “channel”; a Wikipedia entry
covering “Radio Network”; and excerpts of articles
retrieved from the Internet on gospel music and radio
networks.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1), if it
forthwith conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use
of the goods or services. In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828 (TTAB 2007); and In re Abcor
Development, 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). A term need not immediately convey an idea of each
and every specific feature of the applicant’s goods or
services in order to be considered merely descriptive;
rather, it is sufficient that the term describes one
Ser. No. 77063083
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significant attribute, function or property of the goods or
services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982);
and In re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether
a term is merely descriptive is determined not in the
abstract, but in relation to the goods or services for
which registration is sought, the context in which it is
being used on or in connection with the goods or services,
and the possible significance that the term would have to
the average purchaser of the goods or services because of
the manner of its use. In re Bright-Crest, Ltd., 204 USPQ
591, 593 (TTAB 1979). It is settled that “[t]he question
is not whether someone presented with only the mark could
guess what the goods or services are. Rather, the question
is whether someone who knows what the goods or services are
will understand the mark to convey information about them.”
In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002).
The “average” or “ordinary” consumer is the class or
classes of actual or prospective customers of applicant’s
goods or services. In re Omaha National Corporation, 819
F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987).
We begin by considering the dictionary definitions of
the term “channel” that read, in pertinent part, as
follows: “Broadcasting. TV or radio station: a
television or radio station broadcasting on a specific band
Ser. No. 77063083
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of the frequency spectrum. Watching one of the news
channels.” (www.encarta.msn.com); and “a specified
frequency band for the transmission and reception of
electromagnetic signals, as for television signals.” (The
American Heritage Dictionary of the English Language (4th
ed. 2000).
As indicated earlier, applicant, in response to the
mere descriptiveness refusal, disclaimed the terms “Gospel
Music” and “Radio Network.” We also note that applicant
owns two registrations, Reg. Nos. 3066939 and 3238483, both
for GOSPEL MUSIC CHANNEL.2 In each case, the registration
issued on the Supplemental Register with a disclaimer of
the word “Channel.”
The Wikipedia entry indicates “[i]n broadcasting,
syndication is the sale of the right to broadcast radio
shows and television shows to multiple individual stations,
without going through a broadcast network. It is common in
countries where television is organized around networks

2 Reg. No. 3066939 covers “broadcasting programs containing
music, musical performances, biographies, news and general
interest content, via television, radio and the Internet,” and
“entertainment services, namely production and distribution of
television and radio programming featuring music, musical
performances, biographies, news and general interest content;
providing information over the Internet dealing with programs
containing music, musical performances, biographies, news and
general interest content.” Reg. No. 3238483 covers “cable
television broadcasting; satellite television broadcasting;
television broadcasting.”
Ser. No. 77063083
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with local affiliates, notably the United States...Radio
syndication generally works the same way as in
television...”
The examining attorney offers various theories for why
the term “channel” is merely descriptive, thus rendering
the applied-for mark GOSPEL MUSIC CHANNEL RADIO NETWORK
merely descriptive in its entirety. In considering this
case, the Board may affirm on any of these theories, or we
can even rely on a different rationale. See In re AFG
Industries Inc., 17 USPQ2d 1162 (TTAB 1990). See also TBMP
§1217 (2d ed. rev. 2004).
After consideration of the record, we find that the
term “channel” is merely descriptive and that, in turn, the
applied-for mark in its entirety is merely descriptive of
“radio program syndication.”
Applicant’s services feature the syndication of a
radio channel, specifically a gospel music channel that is
part of applicant’s radio network. It is the channel that
is being syndicated; thus, the term indicates the subject
or feature of the services. In view thereof, the term
“channel” is merely descriptive of the radio program
syndication services.
Further, based on the meanings of the individual terms
comprising the mark, the combination GOSPEL MUSIC CHANNEL
Ser. No. 77063083
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RADIO NETWORK is merely descriptive. The applied-for mark
merely describes radio program syndication of a gospel
music channel that is part of applicant’s radio network.
No imagination is required to discern the nature and
purpose of the services.
In making our determination we have considered
applicant’s registration of GOSPEL MUSIC CHANNEL, albeit
for different (but certainly related) services, on the
Supplemental Register, with a disclaimer of “Channel.”
Moreover, in the present application, applicant already
disclaimed the words “Gospel Music” and “Radio Network.”
Although certainly not dispositive of the issue, these
circumstances buttress our conclusion.
Decision: The refusal to register under Section
2(e)(1) is affirmed.