Help The Persecuted, Inc.

Trademark Trial and Appeal Board

Dec 15, 2020

88323799 (T.T.A.B. Dec. 15, 2020)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: December 15, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Help the Persecuted, Inc.
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Serial No. 88323799
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James H. Johnson Jr. and Cameron C. Murphy of Eversheds Sutherland (US) LLP,
for Help the Persecuted, Inc.

Tara L. Bhupathi, Trademark Examining Attorney, Law Office 124,
Lydia Belzer, Managing Attorney.
_____

Before Kuhlke, Lynch, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Help the Persecuted, Inc. (“Applicant”) seeks registration on the Principal
Register of the proposed mark HELP THE PERSECUTED, in standard characters,
for “charitable fundraising services” in International Class 36.1
The Examining Attorney refused registration of Applicant’s proposed mark under
Sections 1, 2, 3, and 45 of the Trademark Act, 15 U.S.C. §§ 1051-53 and 1127, on the

1 Application Serial No. 88323799, filed on March 4, 2019, based on an allegation of use in
commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming July 1,
2018 as both the date of first use and the date of first use in commerce.
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ground that it fails to function as a mark because it is an informational message
commonly used in the marketplace and in Applicant’s particular trade or industry.2
When the Examining Attorney made the refusal final, Applicant appealed. Applicant
and the Examining Attorney have filed briefs. For the reasons explained below, we
affirm the refusal to register.3
I. Failure to Function
A. Legal Background
“The Trademark Act is not an act to register words but to register trademarks [or
service marks]. Before there can be registrability, there must be a trademark (or a
service mark) and, unless words have been so used, they cannot qualify for
registration.” In re Std. Oil Co., 275 F.2d 945, 125 USPQ 227, 229 (CCPA 1960).
Section 45 of the Trademark Act defines “trademark” and “service mark” as “any
word, name, symbol, or device, or any combination thereof … used by a person … to
identify and distinguish” goods or services, respectively, “and to indicate the source”
of the goods or services, “even if that source is unknown.” 15 U.S.C. § 1127; see also
In re Bose Corp., 546 F.2d 893, 192 USPQ 213, 215 (CCPA 1976) (“[T]he classic
function of a trademark is to point out distinctively the origin of the goods to which it

2 Examining Attorney’s Brief, pp. 1-2; 9 TTABVUE 3-4. In the initial May 20, 2019 Office
Action, the Examining Attorney also refused registration of Applicant’s proposed mark under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that Applicant’s
proposed mark is merely descriptive of its identified services. The mere descriptiveness
refusal, however, was withdrawn prior to appeal. See December 14, 2019 Final Office Action,
TSDR p. 2.
3 The TTABVUE and Trademark Status & Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .pdf version of the documents.
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is attached.”).
We must assess whether Applicant’s proposed mark, HELP THE PERSECUTED,
functions as a mark based on whether the relevant public, i.e. consumers or potential
consumers of charitable fundraising services, would perceive HELP THE
PERSECUTED as identifying the source or origin of such services. See e.g., In re
Texas With Love, LLC, 2020 USPQ2d 11290, at *2 (TTAB 2020) (“Whether the term
… falls within this definition and functions as a mark depends on whether the
relevant public, i.e., purchasers or potential purchasers of Applicant’s goods [or
services], would perceive the term as identifying the source or origin of Applicant’s
goods [or services].”); In re TracFone Wireless, Inc., 2019 USPQ2d 222983, at *1-2
(TTAB 2019) (“The key question is whether the asserted mark would be perceived as
a source indicator for Applicant’s services.”); In re Aerospace Optics, Inc., 78 USPQ2d
1861, 1862 (TTAB 2006) (“[T]he critical inquiry is whether the asserted mark would
be perceived as a source indicator.”). In this case, because there are no limitations to
the channels of trade or classes of consumers, the relevant consuming public
comprises all potential purchasers of the identified services. See In re Yarnell Ice
Cream, LLC, 2019 USPQ2d 265039, at *5 (TTAB 2019); cf. CBS Inc. v. Morrow, 708
F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983) (applying this principle in the
likelihood of confusion context).
Matter that is widely used to convey ordinary or familiar concepts or sentiments,
or social, political, religious, or similar informational messages that are in common
use, would not be perceived as indicating source and is not registrable as a mark. See
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In re Mayweather Promotions, LLC, 2020 USPQ2d 11298, at *1 (TTAB 2020)
(addressing the proposed mark PAST PRESENT FUTURE and noting that “[w]idely
used commonplace messages are those that merely convey ordinary, familiar concepts
or sentiments and will be understood as conveying the ordinary concept or sentiment
normally associated with them, rather than serving any source-indicating function”);
Texas With Love, 2020 USPQ2d 11290, at *2 (holding that proposed mark TEXAS
LOVE “does not perform the desired trademark function and does not fall within the
Act’s definition of a mark, including because it would be perceived not as a source
identifier, but instead as a widely-used phrase that merely conveys a well-recognized
and commonly expressed concept or sentiment”); see also D.C. One Wholesaler, Inc. v.
Chien, 120 USPQ2d 1710, 1716 (TTAB 2016) (I ♥ DC was found not to function as a
mark for clothing items because it would be perceived merely as an expression of
enthusiasm for the city). For the failure-to-function analysis, we consider all the
evidence of record, including an applicant’s specimens, as well as other evidence. See,
e.g., D.C. One Wholesaler, Inc., 120 USPQ2d at 1716 (considering third-party use
evidence as well as the applicant’s specimens and other examples of use); In re Eagle
Crest, Inc., 96 USPQ2d 1227, 1230 (TTAB 2010) (affirming informational refusal of
ONCE A MARINE, ALWAYS A MARINE where third-party evidence showed
widespread use of the phrase and use on “applicant’s specimens as well as its other
materials would likely reinforce the perception” of the proposed mark as
informational in the sense of expressing support, admiration or affiliation with the
Marines).
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B. Evidence and Analysis
The Examining Attorney argues that the proposed mark HELP THE
PERSECUTED is a commonplace message or expression that is widely used by a
variety of sources, including in the context of charitable fundraising services such as
Applicant’s, to indicate that assistance or monetary donations are needed for victims
of religious persecution, particularly Christians.
In support of her refusal, the Examining Attorney submitted evidence obtained
from the Internet. A representative sample is provided below:
 Screenshot of an article from the website www.bethanygu.edu titled “5
Ways You Can Help the Persecuted Church From Home” discussing
how to donate to help members of the persecuted church and advocate
for religious freedom;4

 Screenshot of a webpage from Christian Solidarity International with
the headline “Help the Persecuted” requesting prayers and donations
to make a “life-saving impact for your Christian brothers and sisters
facing intense persecution for their faith.”5

 Screenshot of a webpage from Blessing Bethlehem calling on others to
donate to “Help the Persecuted Christian Community in the
Birthplace of Christianity” and discussing Christian persecution in
Bethlehem;6

 Screenshot of a webpage from Take Heart discussing how the entity
“finds local churches and organizations wanting to truly help the
persecuted Christians in their communities but are lacking
resources… to make it happen”;7

 Screenshot of a webpage from Nasarean.Org discussing a fundraising
dinner that raised “more than $30,000 to directly help the Persecuted

4 May 20, 2019 Office Action; TSDR pp. 6-7.
5 Id.; TSDR p. 11.
6 Id.; TSDR p. 13.
7 Id.; TSDR p. 14.
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Christians of the Middle East”;8

 Screenshot of an excerpt from an article from The Observer: University
of Notre Dame discussing a speech at a dinner that concluded with
suggestions on how “Christians in the West can help the persecuted”
including encouraging donations;9

 Screenshot of an excerpt from an article from Abilene Reporter-News of
Texas calling on readers to donate to Global Samaritan to “help the
persecuted Christians in the refugee camps”;10

 Screenshot of a webpage from ChinaAid calling on others to “Make a
Difference” by getting “involved to help the persecuted in China”
through writing letters, signing petitions and donating;11

 Screenshot of a webpage from WorldHelp calling on the congregation to
“help the persecuted church” through donations;12

 Screenshot of a PayPal page describing a charity that seeks to “help the
persecuted” in places where it is dangerous to follow Christ”;13

 Screenshot of a webpage from Hope for Iraqi Christians discussing the
2018 Fundraising Gala which raised funds “to help the persecuted
poor in Iraq and the Middle East”;14

 Screenshot of a webpage from SGN indicating that when you donate to
SGN, you “help the persecuted”;15

 Screenshot of a webpage from ANM calling on others to “Donate to help
the persecuted and displaced”;16 and

8 Id.; TSDR pp. 15-16.
9 Id.; TSDR p. 17.
10 Id.; TSDR p. 18.
11 December 14, 2019 Final Office Action; TSDR p. 4.
12 Id.; TSDR p. 6.
13 Id.; TSDR p. 7.
14 Id.; TSDR p. 8.
15 Id.; TSDR p. 10.
16 Id.; TSDR p. 11.
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 Screenshot of a webpage from Hope for Mena requesting donations to
“help the persecuted.”17

The Examining Attorney also notes that Applicant’s specimen shows the applied-
for mark used on Applicant’s website advertising fundraising services to “provide
vital support and much-needed encouragement to persecuted Christians.”18
Applicant’s specimen is displayed below:19

Based on the foregoing evidence, the Examining Attorney argues that because
consumers are accustomed to seeing the phrase HELP THE PERSECUTED used in
connection with requests for charitable donations, when it is applied to Applicant’s
“charitable fundraising services,” consumers will not perceive it as pointing to one
particular source. Thus, the Examining Attorney concludes that this phrase or
expression would not be recognized as a mark that identifies the source of Applicant’s

17 Id.; TSDR p. 12.
18 Examining Attorney’s Brief, pp. 5-6; 9 TTABVUE 6-7
19 March 4, 2019 Specimen, TSDR p. 1.
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services.
In challenging the refusal, Applicant contends that the evidence submitted by the
Examining Attorney demonstrates that the wording “help the persecuted” is merely
used as “simple words in text” and not used to convey facts or details about the
services.20 Additionally, Applicant maintains that the Examining Attorney’s
withdrawal of the Section 2(e)(1) refusal during the prosecution of Applicant’s
application shows that Applicant’s proposed mark is suggestive and, therefore, not
informational.21
Applicant also contends that “an internet search of the term ‘help the persecuted’
returns the organization’s website, the organization’s LinkedIn page, a profile about
the organization’s President and CEO, and news articles about the organization’s
Summit in Washington, D.C., at which U.S. Vice President Mike Pence spoke.”22
Finally, Applicant argues that its proposed mark “functions as a trademark similar
to other ‘HELP THE…’ marks registered by the United States Patent and Trademark
Office.23 Specifically, Applicant has submitted a list of the following purportedly
registered marks:24
HELP THE AFGHAN CHILDREN, Reg. No. 4630850
HELP THE HOO-HAHS, Reg. No. 3762083
HELP THE HOMELESS, Reg. no. 3762083
HELP THE CHILDREN, Reg. No. 1817205
HELP THE WORLD SEE, Reg. No. 2017197

20 Applicant’s Appeal Brief, p. 2; 5 TTABVUE 3.
21 Id.
22 Id.
23 Id.
24 Id. at pp. 2-3; 5 TTABVUE 3-4.
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HELP THE EARTH FIGHT BACK!, Reg. No. 1640875

While acknowledging that some of the aforementioned registrations are no longer
live, Applicant nonetheless argues that the USPTO’s allowance of numerous “HELP
THE…” marks is strong evidence that Applicant’s proposed mark is not merely
informational and, therefore, is entitled to registration.25
We find Applicant’s arguments unpersuasive. We initially find that although the
Section 2(e)(1) refusal was withdrawn, the withdrawal does not equate to a conclusion
that Applicant’s proposed mark is registrable. Common phrases and slogans need not
be descriptive or generic to be found informational. See In re Ocean Tech., Inc., 2019
USPQ2d 450686 (TTAB 2019) (noting “[t]he standard for a failure to function refusal
is not whether the proposed mark is suggestive rather than descriptive, but whether
the relevant public will recognize it as a trademark identifying only one source.”)
(citing In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1827 (TTAB 2012)). Here, the
evidence shows that the wording “help the persecuted” is commonly used by third
parties. Accordingly, consumers encountering the wording used for charitable
fundraising services are likely to view the wording as a widely-used message, rather
than as a source identifier.
Applicant’s reliance on an “internet search” which purportedly retrieved
Applicant’s website, LinkedIn page, information about its President and CEO, and
articles about Applicant and its fundraising services is also unavailing since
Applicant did not submit the Internet search into the record. Accordingly, we give

25 Id. at p. 3; 5 TTABVUE 4.
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Applicant’s argument based on this alleged Internet search no consideration.
Regardless, the Examining Attorney’s Internet evidence undermines the
persuasiveness of Applicant’s argument, even if it had evidentiary support.
As for the list of third-party registrations submitted by Applicant, we first note
that the Examining Attorney did not object to Applicant’s mere list of registrations
during prosecution, which would have allowed Applicant to cure the deficiency of
failing to submit copies of the registrations. Thus, any objection to this list by the
Examining Attorney is forfeited on appeal. See In re City of Houston, 101 USPQ2d
1534, 1536 (TTAB 2012), aff’d, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013)
(where the examining attorney failed to advise the applicant during prosecution of
the insufficiency of a list of registrations, the Board deemed the examining attorney
to have waived any objection to the list and considered it for whatever probative value
it had). Accordingly, we consider the list of registrations for whatever probative value
such evidence may have. Id.
That being said, Applicant’s list of registrations has little, if any, probative value
because Applicant did not include the actual goods or services associated with the
respective registrations in its list. Without the actual goods and services, we must
speculate as to reasons why these marks were allowed to be registered.26 See In re
Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (a list of third-party

26 As noted above, Applicant recognizes that some of the registrations are no longer live. In
that regard, we note that expired or cancelled registrations generally are evidence only of the
fact that the registrations issued. In re Wal-Mart Stores, Inc., 129 USPQ2d 1148, 1159 (TTAB
2019).
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registrations without the description of goods and services has no probative value);
In re 1st USA Realty Prof’ls. Inc., 84 USPQ2d 1581, 1583 (TTAB 2007) (a list of third-
party registrations without the goods and services for which the marks are registered
has no probative value). And even if Applicant had provided additional context or
evidence of what was in the registration files of other, allegedly similar, registered
marks, we must apply the law to the facts in every case before us, irrespective of what
happened to other marks which, due to their being registered, we do not have the
opportunity to review. See, e.g., In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d
1632, 1635 (Fed. Cir. 2016) (“The PTO is required to examine all trademark
applications for compliance with each and every eligibility requirement.…”); In re
Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (USPTO
“must assess each mark on the record of public perception submitted with the
application”). Thus, we are not persuaded by the list of third-party registrations
submitted by Applicant.
Finally, we disagree with Applicant’s assessment that the evidence submitted by
the Examining Attorney constitutes “simple words in text” and not used to convey
facts or details about the services. In fact, Applicant’s argument appears to be a
concession that the wording is commonly used by third parties, but merely lodges an
objection to the evidence by arguing that it does not show sufficient contextual
information about the services subject to the evidence. However, the evidence does,
in fact, demonstrate that the wording is used by third parties to specify why donations
are needed and how donations will be used.
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For example, evidence from Bethany Global University discusses “Five Ways You
Can Help the Persecuted Church,” including donating financial resources to the
members of the persecuted church, and evidence from Christian Solidarity
International shows use of “Help the Persecuted” to ask viewers to give a generous
gift to “provide life-saving relief to Christians facing genocide for their faith.”27 Thus,
the evidence not only shows common use of HELP THE PERSECUTED by third
parties, but also demonstrates that these third parties use the wording to convey
information about the services provided, such as seeking donations to aid persecuted
persons.
Here, the evidence as a whole shows that wording HELP THE PERSECUTED is
a commonplace expression used by fundraising organizations, such as Applicant’s,
which seek monetary donations to assist those who are purportedly persecuted based
on their religious affiliation. See Texas With Love, 2020 USPQ2d 11290, at *3 (“It is
clear from how the term is used by multiple third parties that [the term] merely
conveys a well-recognized concept or sentiment.”). Other similar messages have been
deemed unregistrable. For example, in In re Team Jesus, LLC, __ USPQ2d __, 2020
WL 7312021 (TTAB December 10, 2020), the Board held that TEAM JESUS for
clothing and religious services did not function as a mark because “the evidence as a
whole shows that TEAM JESUS is a commonplace message of Christian affiliation.”
We find the evidentiary showing in this case analogous. Also, in In re DePorter, 129
USPQ2d 1298, 1302 (TTAB 2019), the Board held that #MAGICNUMBER108 failed

27 May 20, 2019 Office Action; TSDR pp. 6-7 and 11.
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to function as a mark based on “wide use of the proposed mark in a non-trademark
manner to consistently convey information about the Chicago Cubs’ World Series
appearance and win after a 108-year drought. This evidence is competent to suggest
that upon encountering Applicant’s ‘mark,’ prospective purchasers familiar with such
widespread non-trademark use are unlikely to consider it to indicate the source of
Applicant’s goods.” See also Texas With Love, 2020 USPQ2d 11290, at *3 (finding that
TEXAS LOVE did not function as a mark but instead would be perceived as a common
message of “support for, or affiliation or affinity with the State of Texas,” a well-
recognized concept of sentiment.).
Quite simply, the record in this case demonstrates the ubiquity of the phrase
HELP THE PERSECUTED in connection with charitable fundraising services. In
addition, Applicant’s own specimen reinforces the nature of HELP THE
PERSECUTED as an expression commonly used in the context of charitable
fundraising to request monetary donations or other assistance. In particular, we note
that the specimen’s use of “You can help” and the reference to providing support and
encouragement to “persecuted Christians” emphasizes that HELP THE
PERSECUTED is an informational message. We therefore find that consumers will
not perceive the commonly-used expression or phrase HELP THE PERSECUTED as
distinguishing Applicant’s charitable fundraising services in commerce and
indicating their source.
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Decision: The refusal to register Applicant’s proposed mark HELP THE
PERSECUTED under Sections 1, 2, 3, and 45 of the Trademark Act, 15 U.S.C. §§
1051-53 and 1127, on the ground that it fails to function as a mark is affirmed.