Halftime Live LLC

Trademark Trial and Appeal Board

Feb 6, 2009

No. 77144094 (T.T.A.B. Feb. 6, 2009)

Mailed: February 6, 2009
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Halftime Live LLC
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Serial No. 77144094
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J. Tucker Barr of Arnall Golden Gregory LLP for Halftime
Live LLC.

Mark Sparacino, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Hairston, Bucher and Cataldo, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

On March 29, 2007, Halftime Live LLC filed an intent-
to-use application to register the mark DRUMLINE LIVE (in
standard character form) for “entertainment services in the
nature of live musical performances” in International Class
41.
The trademark examining attorney has refused
registration under Section 2(e)(1) of the Trademark Act,
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77144094
2
15 U.S.C. 1052(e)(1), on the ground that applicant’s mark
is merely descriptive of the identified services.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed briefs.
Before turning to the merits of the refusal, we must
address an evidentiary matter. Attached to applicant’s
brief is a copy of its application Serial No. 76563002.
Applicant argues that this allowed application, now
abandoned, strongly supports applicant’s position in this
case. This application was not made of record prior to the
appeal, and the examining attorney has objected to the late
introduction of the application with applicant’s brief.
Trademark Rule 2.142(d) provides that the record in an
application should be complete prior to the filing of an
appeal. Evidence filed after an appeal normally will be
given no consideration. Thus, the application does not
form part of the record and has not been considered. We
hasten to add that even if the application had been
considered, it would not have been persuasive of a
different result.1

1 It is well settled that even if an applicant can point to other
applications or registrations that have some characteristics
similar to its application, the PTO’s allowance of such prior
applications or registrations does not bind the Board. In re
Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir.
2001).
Ser No. 77144094
3
The examining attorney maintains that the individual
terms DRUMLINE and LIVE have descriptive significance when
used in connection with applicant’s identified services,
and that the combined phrase DRUMLINE LIVE is equally
descriptive. Specifically, the examining attorney contends
that DRUMLINE LIVE describes the nature of the identified
services, that is, live drumline performances. Insofar as
the word DRUMLINE is concerned, the examining attorney
submitted an excerpt from “Wikipedia” which states, in
pertinent part:
A drumline or drum line is a group of percussion
instruments usually played as part of a marching
ensemble. Drumlines are usually incorporated
into high school or college marching bands, drum
and bugle corps or drum and lyre corps, indoor
percussion ensembles, and pipe bands, but also
can exist independent of these ensembles.

In addition, the examining attorney submitted Internet
articles which discuss the drumlines at several
universities. These articles indicate that university
drumlines consist of a group of percussion instruments
usually played as part of a marching band. Finally, he
submitted a printout of the homepage of the American Drum
Line Association indicating that the association has “over
127 member drum lines representing approximately 2,000
young musicians and performers.” With respect to the
descriptive significance of the term LIVE, the examining
Ser No. 77144094
4
attorney points to applicant’s recitation of services which
indicates that applicant’s identified services are “live
musical performances.” Thus, it is the examining
attorney’s position that DRUMLINE LIVE is merely
descriptive of applicant’s identified services.
Applicant, in urging reversal of the refusal to
register, argues that the examining attorney’s analysis is
faulty because it is based on the incorrect assumption that
applicant’s services consist solely of live drumline
performances. Rather, according to applicant, its live
musical performances involve a large and diverse touring
group of vocalists, musicians and other entertainers, and
many of the performances do not include percussion
instruments. Applicant also contends that thought and
imagination are required to make a connection between the
term “drumline” and applicant’s services because the term
“drum” has meanings other than a musical instrument.
Applicant has submitted an entry from The Merriam-Webster
Online Dictionary which includes the following alternative
definitions for the the term “drum” - (1) any of the
cylindrical blocks that form the shaft of a column (2) a
round wall or structure that supports a dome.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Trademark Act Section
Ser No. 77144094
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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. See, e.g., In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987), and
In re Abcor Development Corp., 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; it is enough that the term describes one
significant attribute, function or property of the goods or
services. See In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
1982); 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 those 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; that a term may have
other meanings in different contexts is not controlling.
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
It is settled that “the 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
Ser No. 77144094
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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).
When two or more descriptive terms are combined, the
determination of whether the composite mark also has
descriptive significance turns on the question of whether
the combination of terms evokes a new and unique commercial
impression. If each component retains its descriptive
significance in relation to the goods or services, the
combination results in a composite that is itself
descriptive. See, e.g. In re Tower Tech, Inc., supra
[SMARTTOWER merely descriptive of commercial and industrial
cooling towers]; In re Sun Microsystems Inc., 59 USPQ2d
1084 (TTAB 2001) [AGENTBEANS merely descriptive of computer
programs for use in development and deployment of
application programs]; In re Putnam Publishing Co., 39
USPQ2d 2021 (TTAB 1996) [FOOD & BEVERAGE ONLINE merely
descriptive of news information services for the food
processing industry]; and In re Copytele Inc., 31 USPQ2d
1540 (TTAB 19994) [SCREEN FAX PHONE merely descriptive of
facsimile terminals employing electropheric displays].
We find that DRUMLINE LIVE is merely descriptive as it
immediately conveys that applicant’s identified services
involve live drumline performances. Applicant has
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disclaimed, and does not dispute that the term “live”
merely describes the identified services, i.e.,
“entertainment services in the nature of live musical
performances.” Furthermore, we find that the evidence
submitted by the examining attorney suffices to establish
that the term “drumline” is merely descriptive in the
context of the identified services. Specifically, the
evidence shows that a drumline consists of a group of
percussions instruments usually played as part of a
marching ensemble. Applicant’s argument that the term
“drum” has meanings other than a musical instrument and,
thus, the term “drumline” is not merely descriptive is ill-
founded. Mere descriptiveness is determined in relation to
the goods or services for which registration is sought.
Accordingly, as indicated earlier, that a term may have a
different meaning in a different context is not
controlling. See In re Chopper Industries, 222 USPQ 258
(TTAB 1984). The fact that the term “drum” also means any
of the cylindrical blocks that form the shaft of a column
and a round wall or structure that supports a dome is
simply irrelevant in the context of applicant’s identified
services. Moreover, the term at issue here is “drumline,”
not “drum.” In sum, we find that the individual terms
Ser No. 77144094
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DRUMLINE and LIVE have descriptive significance as used in
connection with applicant’s identified services.
We also find that these individual terms do not
somehow lose this descriptiveness in the combination
DRUMLINE LIVE. While a combination of words may be
registrable if it creates a unitary mark with a unique,
nondescriptive meaning or incongruous meaning, in this case
each component of applicant’s mark retains its descriptive
significance when used in the combination, and the
combination as a whole is also merely descriptive of
applicant’s services.
Applicant argues that its live musical performances
involve a large and diverse touring group of vocalists,
musicians and other entertainers, and do not always include
percussion instruments. This argument, however, is not
persuasive of a different result. As indicated, the issue
of mere descriptiveness must be determined on the basis of
the goods or services as identified in the application, and
not on the basis of what applicant’s actual goods or
services might be. The “live musical performances”
identified in the application must be presumed to include
live drumline performances, as a drumline is a type of
musical performance. That applicant’s actual performances
include performers other than percussionists, and
Ser No. 77144094
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frequently exclude percussion instruments, is not
dispositive and does not negate the descriptiveness of
DRUMLINE LIVE as used in connection with applicant’s
services as broadly recited in the application.
In view of the foregoing, we find that DRUMLINE LIVE
is merely descriptive of applicant’s recited services.
Decision: The refusal to register under Section
2(e)(1) is affirmed.