Hark’n Technologies, Inc.

Trademark Trial and Appeal Board

Oct 23, 2019

86945327 (T.T.A.B. Oct. 23, 2019)

This Opinion is Not a
Precedent of the TTAB

Hearing: October 3, 2019 Mailed: October 23, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Hark’n Technologies, Inc.
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Serial No. 86945327
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Stephen H. Bean of Legends Law Group, PLLC,
for Hark’n Technologies, Inc.
Michael A. Wiener, Trademark Examining Attorney, Law Office 108,1
Kathryn E. Coward, Managing Attorney.
_____

Before Zervas, Kuczma, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Hark’n Technologies, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark BEAST in standard characters for goods identified as “sleeved
elastic spring bars for exercising,” in International Class 28.2

1 Trademark Examining Attorney Wiener examined the involved application, issued the final
refusal to register that is the subject of this appeal, and filed a brief for the United States
Patent and Trademark Office (“USPTO”). Senior Trademark Examining Attorney Brin A.
Desai appeared at the oral hearing for the USPTO. We will refer to both of them as the
“Examining Attorney.”
2 Application Serial No. 86945327 was filed on March 18, 2016 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce.
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The Examining Attorney has refused registration of Applicant’s mark under
Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051 and 1127, on the ground
that Applicant’s specimens of use do not show use of the applied-for mark in
commerce in connection with the goods identified in the application.
After the Examining Attorney made the refusal final, Applicant filed a notice of
appeal, 1 TTABVUE,3 and subsequently filed its appeal brief. 4 TTABVUE. The
Examining Attorney requested a remand of the application “for further examination
so the examining attorney may submit additional evidence,” 8 TTABVUE 3, and the
Board suspended the appeal, granted his request, and remanded the electronic record
of the application file to the Examining Attorney. 13 TTABVUE 1. The Examining
Attorney then issued a Superseding Subsequent Final Office Action,4 the appeal was
resumed, and Applicant was given the opportunity to file a supplemental brief. 15
TTABVUE 1.
The case is fully briefed,5 and counsel for Applicant and the Examining Attorney
appeared at an oral hearing before the panel. We reverse the refusal to register.

3 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited matter
appears. Citations in this opinion to the application record are to pages in the USPTO’s
Trademark Status & Document Retrieval (“TSDR”) database.
4 January 11, 2019 Superseding Subsequent Final Office Action at TSDR 1.
5 In addition to its appeal brief, Applicant filed a supplemental brief, 16 TTABVUE, and a
reply brief, 21 TTABVUE, and the Examining Attorney filed a brief. 20 TTABVUE.
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I. Evidentiary Issue
We must address an evidentiary matter before proceeding to the merits of the
appeal. In Applicant’s appeal brief filed prior to the remand of the application to the
Examining Attorney, Applicant claimed that it “is the owner of a different federal
trademark registration for the mark SLASTIX in International Class 028 for ‘sleeved
elastic spring bars for exercising’ (U.S. Trademark Reg. No. 3,769,750 (the ’750
Registration).” 4 TTABVUE 3. Applicant attached to its appeal brief a declaration of
its President, Shon L. Harker, id. at 8-10 (Exhibit A), as well as what it described as
“packaging showing the mark used for sleeved elastic spring bars for exercising,” id.
at 3, which it claimed was submitted to the USPTO as specimens of use to obtain and
maintain the ’750 Registration. Id. at 3, 11-14 (Exhibits B-C). The Examining
Attorney objects to the Board’s consideration of the Harker Declaration and the
alleged specimens on the ground that they are untimely because they were not made
of record prior to the filing of the appeal, and Applicant did not subsequently request
a remand to make them of record. 20 TTABVUE 4-6.
In response to these objections, Applicant discusses only the Harker declaration,
which Applicant acknowledges “was new evidence at the time the appeal brief was
initially filed.” 21 TTABVUE 3. Applicant argues that the Examining Attorney
“reopened the examination through his successful request for remand,” and that “the
Harker declaration . . . became evidence of record when the examiner successfully
reopened examination.” Id. Citing Section 1207.02 of the Trademark Trial and Appeal
Board Manual of Procedure (“TBMP”), Applicant argues that it could have submitted
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the Harker declaration with its supplemental brief in response to the Examining
Attorney’s submission of additional evidence following remand, but that it merely
referred to the declaration in its supplemental brief in lieu of resubmitting it. 21
TTABVUE 3 (citing 16 TTABVUE 4).
We exercise our discretion to consider the Harker declaration and the putative
specimens because the Examining Attorney had an opportunity to address them on
remand. In re Consolidated Specialty Rests., Inc., 71 USPQ2d 1921, 1922 n.1 (TTAB
2004) (under the “unusual circumstances” of that case, and “in the interest of a full
and fair adjudication,” the Board exercised its discretion to consider a third-party
registration attached to the applicant’s appeal brief because the examining attorney
had an opportunity to consider and respond to it following remand of the application).
We note, however, that the putative specimens have no probative value in support of
Applicant’s claim that “[i]f this evidence was sufficient in the ’750 Registration, it
should be sufficient here,” 4 TTABVUE 7, because neither the specimens nor the ’750
Registration is mentioned in the Harker declaration, id. at 9-10, and the ’750
Registration was not attached to Applicant’s appeal brief or otherwise made of
record.6

6 If Applicant’s statements in its appeal brief regarding the putative specimens and the ’750
Registration are accurate, we are at a loss to understand why Applicant did not simply make
the file history of the ’750 Registration of record in response to the October 26, 2017 Office
Action rejecting its initial specimen. This would have given the Examining Attorney the
chance to consider the USPTO’s treatment of the specimens in the ’750 Registration in the
course of evaluating the sufficiency of Applicant’s specimens here. At the very least,
Applicant would have avoided the evidentiary objection to Exhibits B-C attached to its appeal
brief.
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II. Analysis of Refusal
A. Prosecution History and Record on Appeal
When it filed the involved application, Applicant was required to “specify the
particular goods . . . on or in connection with which [it] . . . ha[d] a bona fide intention
to use” the applied-for mark in commerce. Trademark Manual of Examining
Procedure (“TMEP”) Section 1402.01 (Oct. 2018) (citing 15 U.S.C. §§ 1051(a)(2) and
(b)(2), and 37 C.F.R. § 2.32(a)(6)). “It is the applicant’s duty and prerogative to
identify the goods and services,” but “the examining attorney may require an
amendment of the identification of goods and services to ensure that it is clear and
accurate and conforms to the requirements of the statute and rules.” TMEP
§ 1402.01(e). Applicant identified its goods as “sleeved elastic spring bars for
exercising.”7 The Examining Attorney did not require amendment of that
identification, and the application was published for opposition with it.
Following allowance of the application, Applicant filed a statement of use
supported by the specimen displayed below, which Applicant claimed showed use of
the applied-for mark in connection with “sleeved elastic spring bars for exercising”:

7 March 18, 2016 Application at TSDR 1.
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8
The Examining Attorney rejected Applicant’s specimen because it did “not show the
applied-for mark in use in commerce in International Class[ ] 28.”9 The Examining
Attorney stated that “the specimen lists the goods as ‘battle ropes’ and shows a
photograph of one,” while “the goods are listed in the application as ‘spring bars’,”
and that a “specimen for goods must be for the goods in the application.”10
Applicant responded by submitting the substitute specimen displayed below,
which was supported by a declaration of Applicant’s counsel that the substitute
specimen was in use prior to the filing date of the statement of use:11

8 October 3, 2017 Statement of Use at TSDR 2.
9 October 26, 2017 Office Action at TSDR 1.
10 Id.
11 January 18, 2018 Response to Office Action at TSDR 1-2.
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12
The “Product Details” text on the substitute specimen is reproduced below in enlarged
lettering:

The Examining Attorney rejected this specimen as well for the same reasons that he
had rejected Applicant’s original specimen, and made the refusal to register final.13
Applicant then appealed and filed its appeal brief. After remand of the application,
the Examining Attorney made the following evidence of record:

12 Id. at TSDR 2.
13 February 25, 2018 Final Office Action at TSDR 1.
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1. Pages from Applicant’s website at stroops.com that listed various product
categories and showed various products, including resistance bands, and
several types of bars;14
2. Abstracts of patent applications entitled “Device for Using Ropes for Fitness
and Method for Exercising Using a Rope Device,” “Adjustable handles for
spring bars,” and “Endless elastic resistance exercise devices,” downloaded
from Google Patents;15 and
3. Pages from the website at amazon.com displaying third-party products
described as a “Power Twister Chest Resistance Spring Bar Exerciser” and
“Pro Battle Ropes With Anchor Strap Kit,” and listing various customer
reviews.16
B. Applicant’s and The Examining Attorney’s Arguments
Regarding the Sufficiency of the Specimens
1. The Examining Attorney’s Arguments
The Examining Attorney describes the insufficiency of Applicant’s two specimens
as follows:
The applicant’s specimens consist of point-of-sale web
pages showing the applicant’s mark. These specimens
must also show a direct association between the mark and
the goods for which registration is sought. . . To show this
direct association, the specimen must contain an explicit
reference to the goods in addition to the mark being used
on the specimen to identify the goods and their source. . .
As the goods in the application are not listed on the

14 January 11, 2019 Superseding Subsequent Final Office Action at TSDR 26-40.
15 Id. at TSDR 2-25.
16 Id. at 41-58.
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specimen, a connection between the mark and goods cannot
be determined [and] [t]he use of applicant’s mark . . . fails
to show a direct association between the applied-for mark
and the identified goods.
20 TTABVUE 6 (citing, inter alia, In re WAY Media, Inc., 118 USPQ2d 1697, 1698
(TTAB 2016) and TMEP Section 1301.04(f)(ii)).
The Examining Attorney acknowledges that Applicant’s substitute specimen
refers to the goods identified in the application because “[o]n the bottom of the
specimen and under ‘Product Details’ the last two sentences are, ‘Twenty foot elastic
battle rope! These are sleeved elastic spring bars for exercising.’” Id. at 7. The
Examining Attorney argues, however, that “[t]hese printouts consist merely of the
bottom part of one page” of Applicant’s website, and that the goods shown in the
specimens properly falls into the product category “Resistance Bands” listed on the
website, id., which “does not appear to have the wording, ‘Sleeved elastic spring
bars,’” id., or the wording “spring bars” per se. Id.
The Examining Attorney also points to the third-party websites in the record,
which in his view show that products identified as “‘spring bars’ do not act in any way
like ‘battle ropes’ as a type of exercise equipment, as the applicant claims,” id. at 8,
and the patent applications in the record, which in his view “clearly distinguish
‘battle ropes’ from ‘spring bars.’” Id. The Examining Attorney argues that “Applicant’s
description of ‘spring bars’ as encompassing ‘battle ropes’ as a type of exercise
equipment in its [substitute] specimen . . . is at best a typographical error.” Id. at 8.
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2. Applicant’s Arguments
Applicant’s basic argument is that “[t]his entire situation is caused by the
examiner’s failure to understand the subject goods,” 16 TTABVUE 2, “sleeved elastic
spring bands for exercising,” which Applicant abbreviates as “SESB.” Applicant
claims that its “original specimen of use showed a SESB with accompanying text that
called the SESB an elastic ‘battle rope,’” which the Examining Attorney improperly
rejected “because he did not understand that the elastic battle rope shown in the
picture was a SESB,” id. at 2-3, and that its “substitute specimen with a product
description that clearly states, ‘[t]hese are sleeved elastic spring bars for exercising’”
was improperly rejected “using the same vague, verbatim language from his previous
rejection” with “no guidance or instruction as to what he believed a sleeved elastic
spring bar to be.” Id. at 3. Applicant argues that “[p]resumably, the examiner has an
idea of what constitutes a SESB for exercising because he approved of this language
in issuing the Notice of Allowance,” but that the Examining Attorney “has three times
rejected Applicant’s SESB specimen while never definitively stating what he believes
constitutes a SESB for exercising.” Id.
Applicant argues that its specimens show use of the applied-for mark “to advertise
and sell sleeved elastic battle ropes, which are SESB’s for exercising,” and that “most
battle ropes are only plain ropes,” and “[o]nly sleeved elastic battle ropes are SESB’s
for exercising.” Id. Applicant “readily admits that spring bars are not battle ropes and
that spring bars do not encompass battle ropes,” but “this fact is irrelevant.” Id. at 4.
Applicant points to the statement in the Harker declaration that “‘sleeved elastic
spring bars are also known as sheathed elastics, sheathed resistance bands, and
Serial No. 86945327
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elastic battle ropes, among other names.’” Id. (quoting Harker Decl. ¶ 3 (emphasis
added by Applicant)). Applicant dismisses the Examining Attorney’s patent and
website evidence because “[n]oticeably absent from this sparse collection of evidence
is a single document that mentions SESB’s for exercising.” Id. According to Applicant,
this evidence shows only “that the examiner is confusing SESB’s for exercising with
‘spring bars,’ which are completely different things.” Id. at 5. Applicant rejects the
Examining Attorney’s claim that Applicant’s website does not mention the identified
goods because Applicant’s substitute specimen of use “is an Internet order page for
goods sold under the BEAST mark that clearly states, ‘[t]hese are elastic spring bars
for exercising.’” Id.
In its reply brief, Applicant reiterates that the Examining Attorney “has utterly
failed to provide any indication of what he believes constitutes a ‘sheathed elastic
spring bar.’” 21 TTABVUE 3.
C. Sufficiency of Applicant’s Specimens
Our summary of Applicant’s and the Examining Attorney’s arguments illustrates
the highly unusual nature of this appeal. It does not concern whether Applicant’s
identification of its goods as “sleeved elastic spring bars for exercising” is indefinite
or otherwise improper. As noted above, the Examining Attorney did not take issue
with the identification during prosecution because it was not “specific, definite, clear,
accurate, and concise,” or because it did not use “common names” and “terminology
that is generally understood.” TMEP Section 1402.01 (discussing the general
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requirements for an appropriate identification of goods or services).17 Nor does the
appeal concern the insufficiency of Applicant’s specimens based on their nature, as
the Examining Attorney accepts that they are “point-of-sale web pages showing the
applicant’s mark.” 20 TTABVUE 6. See generally TMEP Section 904.03(i) (discussing
when webpages may be considered “displays associated” with the goods within the
meaning of Section 45 of the Trademark Act, 15 U.S.C. § 1127).
There is thus no dispute that Applicant’s identification of goods is proper and that
its specimens are sufficient to show use of its mark in commerce with those goods if
the specimens show “sleeved elastic spring bars for exercising.”18 Accordingly, we
must decide whether “sleeved elastic spring bars for exercising” are shown in the
specimens.
That issue is not as straightforward as it might seem at first blush. Although Mr.
Harker claimed that he has been “designing, manufacturing, and selling sleeved
elastic spring bars for over twenty years,” and could “competently declare that sleeved
elastic spring bars are also known as sheathed elastics, sheathed resistance bands,
and elastic battle ropes, among other names,” Harker Decl. ¶ 3, there is no evidence

17 At the oral hearing, the Examining Attorney confirmed that the identification was
acceptable, but argued that it does not cover the goods shown in the specimens because those
goods are not “bars” within the ordinary meaning of that word as rigid structures.
18 The Examining Attorney’s citation of WAY Media and TMEP Section 1301.04(f)(ii) in
support of the refusal is misplaced. 20 TTABVUE 6. Those authorities involve the issue of
whether specimens for service marks show a direct association between the marks and the
identified services. See WAY Media, 118 USPQ2d at 1698 (discussing different tests for such
a direct association when specimens show the mark in the rendition of the services or in the
advertising of the services). The application here does not involve services, but even if the
“direct association” requirement applied to specimens for goods, the specimens here directly
associate the mark with some goods. The issue is whether those goods are “sleeved elastic
spring bars for exercising.”
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in the record that anyone in the exercise equipment industry other than Applicant
has ever used the term “sleeved elastic spring bars” to identify any form of exercise
equipment, or has ever referred to sheathed elastics, sheathed resistance bands, and
elastic battle ropes as forms of “sleeved elastic spring bars.”19
Moreover, on this record, Applicant itself has publicly done so only on its website,
where it stated that its “twenty foot elastic battle rope[s]” are “sleeved elastic spring
bars for exercising.” As noted above, the Examining Attorney argues that this
description of the goods is “at best a typographical error.” 20 TTABVUE 8. The
description is not a typographical error because the sentence is not misprinted in any
respect, but it is odd and seemingly contrived, particularly because there is no
evidence of any third-party use of such a product description that would serve as a
point of reference for a consumer in understanding Applicant’s explanation of what
else its “elastic battle ropes” are called. As the Examining Attorney correctly notes,
id. at 7-8, Applicant’s website does not contain any category of goods called “sleeved
elastic spring bars for exercising” covering certain sheathed elastics, sheathed
resistance bands, or elastic battle ropes, and, as the Examining Attorney points out,
id. at 7, there is no evidence in the record that the “sheathed resistance bands” that
are sold by Applicant are also identified as falling within the “sleeved elastic spring
bars for exercising” product category described by Mr. Harker. Harker Decl. ¶ 3.
These facts suggest that the language “These are sleeved elastic spring bars for

19 The absence of such evidence calls into question whether “sleeved elastic spring bars” are
the common commercial name for the goods that Applicant sells under the applied-for mark,
but as discussed above, the Examining Attorney does not take issue with the identification.
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exercising” was included by Applicant in the Product Details for its “elastic battle
ropes” in anticipation of or in response to the Examining Attorney’s argument that
Applicant’s “elastic battle ropes” are not “sleeved elastic spring bars for exercising.”
We have no basis, however, to doubt the bona fides of Applicant’s substitute
specimen. Applicant’s counsel represented at the oral hearing that the substitute
specimen was the full-page version of Applicant’s original half-page specimen, and
other product pages from Applicant’s website in the record are consistent with this
representation.20 Although the Examining Attorney has established that goods like
those shown in Applicant’s specimens are commonly referred to simply as “battle
ropes,”21 and that “spring bars” per se are a different type of exercise product from
“battle ropes,”22 it is well settled that goods may have more than one generic name.
In re Nat’l Shooting Sports Found., Inc., 219 USPQ 1018, 1020 (TTAB 1983) (citing
In re Sun Oil Co., 165 USPQ 718, 719 (CCPA 1970) (Rich, J., concurring) and In re
Minnetonka, 212 USPQ 772, 777 (TTAB 1981)). Applicant is correct that while the
Examining Attorney claims that the goods shown in Applicant’s specimens are not
“sleeved elastic spring bars for exercising,” he has not “explain[ed] what he believes
constitutes a ‘sleeved elastic’ spring bar.” 21 TTABVUE 2. The record contains a
sworn statement that a “sleeved elastic spring bar” is another name (albeit a
counterintuitive one) for an “elastic battle rope,” Harker Decl. ¶ 3, and a specimen

20 January 11, 2019 Superseding Subsequent Final Office Action at TSDR 31-32, 37-40. The
Examining Attorney acknowledges that the substitute specimen is “the bottom part of one
page of the applicant’s web site.” 20 TTABVUE 7.
21 Id. at TSDR 2-7, 51-58.
22 Id. at TSDR 10-12, 41, 43-45.
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with a statement (albeit an artificial one) to that effect. This evidence is unrebutted
by the Examining Attorney, and we cannot find on this record that the goods shown
in the specimen are not the “sleeved elastic spring bars for exercising” identified in
the application, even if that alleged category of goods has only one seller, Applicant.
Cf. In re Empire Tech. Dev. LLC, 123 USPQ2d 1544, 1549 (TTAB 2017) (a generic
name may exist even if it is used by only one seller of that genus of goods). We find
that Applicant submitted a sufficient specimen of use of the applied-for mark in
connection with the goods identified in the application.
Decision: The refusal to register is reversed.