Jerome Bettis

Trademark Trial and Appeal Board

Jul 20, 1999

No. 75196637 (T.T.A.B. Jul. 20, 1999)

Paper No. 9
BAC
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 20, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Jerome Bettis
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Serial No. 75/196,637
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Leland P. Schermer of Sweeney Metz Fox McGrann & Schermer
LLC for Jerome Bettis
Mark T. Mullen, Trademark Examining Attorney, Law Office
101 (Jerry Price, Managing Attorney)
_______
Before Cissel, Hohein and Chapman, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
On November 12, 1996, Jerome Bettis filed an
application to register the mark THE BUS for “entertainment
services in the nature of football performances,” claiming
first use and first use in commerce in 1993. In the
method-of-use clause applicant stated that: “The mark is
used to refer to Applicant in connection with football
performances and in other ways customary in the trade.”
Ser. No. 75/196637
2
Registration has been finally refused on the ground
that the specimens submitted by applicant do not show use
of the mark for the services for which registration is
sought.
Applicant has appealed, and briefs have been filed.
An oral hearing was not requested by applicant.
The original specimens submitted by applicant are
three copies of a Pittsburgh newspaper story about the
Pittsburgh Steeler’s defeat of the Rams in a football game.
Within the story, the writer refers to Jerome Bettis as
“the Bus.” Applicant later submitted substitute specimens
in the form of (1) a photocopy identified by applicant as
the front of a t-shirt, which is partially reproduced below
(the very top of the photocopy is not included),
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(2) an advertisement from the Steeler’s Digest, which is
reproduced below,
and (3) an audio cassette tape of a radio broadcast of a
game between the Pittsburgh Steelers and the Baltimore
Ravens in September 1996 in which the announcers refer to
Jerome Bettis as “the bus.”
Applicant argues that applicant has signed a personal
service contract obligating him to render entertainment
services in the nature of football performances and in so
doing he is selling his services. Applicant argues
therefrom that any of the four types of specimens are
legally sufficient. Specifically, applicant contends that
the newspaper article is coverage of and identifies
applicant’s services; that the t-shirt also depicts
applicant rendering those services; that the advertisement
for the fan club services includes a photograph of
applicant which is sufficient evidence of proper service
mark usage for the service identified in the application;
and that the radio broadcast clearly refers to the
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4
individual applicant as “THE BUS” while he is rendering his
entertainment services.
The Examining Attorney’s position is that the
newspaper article merely refers to applicant by a nickname
and does not evidence advertisement or sale of any service;
that the t-shirt usage is, at best, usage of a mark for
goods, not services; that the advertisement in the
Steeler’s Digest would be a proper specimen for fan club
services, but does not relate to or evidence the services
set forth in this application (and the slogan in the
advertisement, which is “DON’T MISS THE BUS,” differs from
the applied-for mark, THE BUS); and that the audio cassette
tapes are merely the broadcast of a football game wherein,
when Jerome Bettis makes a noteworthy play in the game, the
announcers refer to him as “the bus,” but the public would
view this as merely reference to his nickname and not as an
advertisement for the sale of any service.
The requirements for service mark specimens differ
from the requirements for trademark specimens for goods.
Although service marks are used in connection with the
services, trademarks appear directly on the goods or the
containers or labels for the goods. Implicit in the
statutory definitions of a “service mark” is the
requirement that there be some direct association between
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the mark and the services, i.e., that the mark be used in
such a manner that it would readily be perceived as
identifying the source of such services. See In re
Advertising & Marketing Development, Inc., 821 F.2d 614, 2
USPQ2d 2010 (Fed. Cir. 1987); and In re Adair, 45 USPQ2d
1211 (TTAB 1997).
In this case, we agree with the Examining Attorney
that the specimens submitted by applicant do not show the
mark sought to be registered used by applicant as a service
mark for the services identified in the application.
Applicant’s individual participation as a player on a team
in football games may be a service, but that question is
not before us. The fact is that none of the specimens
submitted by applicant shows applicant’s use of the mark
THE BUS to identify the source of his entertainment
services.
Applicant relies on the cases of In re Ames, 160 USPQ
214 (TTAB 1968), and In re Carson, 197 USPQ 554 (TTAB
1977), but these cases are distinguishable from the
circumstances herein. In the Ames case, the Board found
that advertisements for a record album made by a group in
fact promoted the entertainment services of the applicant;
and in the Carson case, the Board found that a group of
advertisements for “Johnny Carson in concert” demonstrated
Ser. No. 75/196637
6
technical service mark use of the name in close association
with a clear reference to entertainment services to be
performed by him. Both of these situations are distinct
from the case now before us, where applicant is a player on
a football team, and the specimens show that a sports
writer, a sports announcer, and applicant’s fan club refer
to him by his name and by his apparent nickname, “the bus,”
but these specimens do not show his use of the nickname as
a mark to identify his “entertainment services in the
nature of football performances.” The use of the mark on a
t-shirt could be a trademark for goods, but it is not
service mark usage.
Decision: The refusal to register on the basis that
the specimens do not show use by applicant of the mark as a
service mark for the services set forth in the application
is affirmed.
R. F. Cissel
G. D. Hohein
B. A. Chapman
Administrative Trademark Judges,
Trademark Trial and Appeal Board