Matt Davenport Productions, Inc.

Trademark Trial and Appeal Board

Jun 7, 2013

No. 85272897 (T.T.A.B. Jun. 7, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: June 7, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board

_____

In re Matt Davenport Productions, Inc.

_____

Serial No. 85272897
_____

Bryan K. Wheelock of Harness, Dickey & Pierce, PLC for Matt Davenport
Productions, Inc.

Barbara Rutland, Trademark Examining Attorney, Law Office 101 (Ronald R.
Sussman, Managing Attorney).
_____

Before Holtzman, Kuczma and Hightower, Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Applicant, Matt Davenport Productions, Inc., has applied to register:

as a trademark in standard character form on the Principal Register for the
Serial No. 85272897

2

following services:
Entertainment in the nature of visual and audio
performances, and musical, variety, news and comedy
shows; Dinner theatres in Class 41.1
The examining attorney has refused registration pursuant to Section 2(e)(1)
of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the applied-for
mark merely describes applicant’s services. After the refusal was made final,
applicant timely appealed. The appeal is fully briefed. For the reasons set forth
below, the refusal to register is affirmed.
Descriptiveness
A term is merely descriptive within the meaning of § 2(e)(1) if it immediately
conveys knowledge of a quality, characteristic, function, feature, purpose or use of
the goods with which it is used. In re Chamber of Commerce of the U.S., 675 F.3d
1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) and In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987).
The examining attorney maintains that the components of the applied-for
MUSIC CITY ON STAGE mark merely describe the subject matter and feature of
applicant’s services and retain their descriptive meaning when combined, i.e.,
applicant’s dinner show will provide live entertainment that relates to the city of
Nashville (“Music City”) and will be performed on stage. Applicant contends it is
only after undertaking mature thought and a multi-stage reasoning process that

1 Application Serial No. 85272897, filed on March 21, 2011, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b); the words “MUSIC CITY” have been disclaimed.
Serial No. 85272897

3

consumers would be able to discern something about its services.2
Although applicant has disclaimed the term MUSIC CITY,3 and admits that
“Music City” is often associated with Nashville, Tennessee, it also contends that
MUSIC CITY does not “automatically and exclusively mean Nashville, Tennessee.”4
To support its argument, applicant in its brief identifies for the first time third
parties who allegedly use MUSIC CITY in their names, together with their
corresponding website addresses.5 Not only does this information constitute new
evidence which is improper at the briefing stage, it also lacks probative value
because no copies of the websites were furnished.6 Accordingly, the examining
attorney’s objection to this untimely evidence is sustained. We note even if we were
to consider this evidence, it would not affect our decision because the fact that a
descriptive term may have other meanings in different contexts is not controlling.
See In re Franklin County Historical Society, 104 USPQ2d 1085, 1087 (TTAB 2012)
and In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
The term “Music City” when considered in connection with applicant’s

2 Applicant’s Appeal Brief pp. 2 and 4.
3 See June 27, 2011 Examiner’s Amendment entering disclaimer.
4 See Applicant’s Appeal Brief p. 2.
5 See Applicant’s Appeal Brief p. 2.
6 Information identified only by website internet addresses is not sufficient to make the
content of that website of record. See In re HSB Solomon Associates LLC, 102 USPQ2d
1269, 1274 (TTAB 2012). Additionally, the Board will ordinarily not consider additional
evidence filed after the appeal is filed. See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d).

Serial No. 85272897

4

services, is clearly descriptive.7 The evidence submitted by the examining attorney
from the online collaborative encyclopedia Wikipedia8 states that Nashville,
Tennessee “is most notably known as a center of the music industry, earning it the
nickname ‘Music City.’”9 Additionally, excerpts from applicant’s website show that
applicant uses the term “Music City” to describe the nature of applicant’s dinner
theatre productions:
“MUSIC CITY ON STAGE TO DEBUT JUNE 2, 2011 AT
THE STUDIO GALLERY AT FONTANEL. A spectacular
Dinner and Variety Show Tracing the Roots of
Tennessee Music Thorough Song and Dance.”
. . .
“The first course of this holiday entertainment fest
celebrates the music of Music City. Highlights from
Music City On Stage include the music of Nashville
from Hank Williams and Patsy Cline along with great
standards from George and Tammy, Johnny Cash and
Dolly Parton.”10
(emphases added)

7 While applicant disclaimed the term “Music City,” it is inappropriate to give the presence
of this disclaimer any legal significance. In re National Data Corp., 753 F. 2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985).
8 See In re Toshiba Medical Systems Corp., 91 USPQ2d 1266, 1268, n.2 (TTAB 2009) (“The
Board will consider evidence taken from Wikipedia so long as the non-offering party has an
opportunity to rebut that evidence . . . .” citing In re IP Carrier Consulting Group, 84
USPQ2d 1028, 1032 (TTAB 2007)).

9 See attachment 1 to September 16, 2011 Office Action from
http://en.wikipedia.org.wiki/Music_City.
10 See attachments 17 and 18 to September 16, 2011 Office Action from applicant’s website
http://musiccityonstage.com.
Serial No. 85272897

5

The definition from an online source provided by the examining attorney
similarly shows the descriptive meaning of the term “onstage” with respect to
applicant’s entertainment services:
onstage:
(adjective) Situated or taking place in the area of a stage
that is visible to the audience.
(adverb) In or into the area of a stage that is visible to the
audience.
http://education.yahoo.com/reference/dictionary/entry/o
nstage.11
Attempting to rebut the foregoing evidence, applicant, for the first time in its
appeal brief, identifies several registrations for marks containing the terms “Music
City” or “On Stage” contending that such registrations, whether or not they contain
a disclaimer, were registered without evidence of acquired distinctiveness.12 The
mere identification of these registrations does not make them of record. In re
Hoefflin, 97 USPQ2d 1174, 1177 (TTAB 2010). Applicant must provide either copies
of the registrations, or their equivalent from the USPTO’s electronic records, prior
to appeal. See In re Jump Designs LLC, 80 USPQ2d 1370, 1372 (TTAB 2006);
TBMP § 1208.02 (3d ed. rev. 2012) and TMEP § 710.03 (April 2013). Because
applicant has not timely provided copies of the registrations or their equivalent, and
the Board does not take judicial notice of third-party registrations, we sustain the
examining attorney’s objection and disregard the registrations.13

11 See attachment 22 to September 16, 2011 Office Action.
12 See Applicant’s Appeal Brief pp. 3-4.
13 See Rule 2.142(d), 37 C.F.R. § 2.142(d), and TBMP § 1208.02.
Serial N

T
made n
registra
significa
encount
Corp., 5
Inc., 10
consum
shows fe

14 See at
http://w
o. 852728
he determ
ot in the
tion is so
nce that
ering the
88 F.2d 8
3 USPQ2d
ers attend
ature live
“Mus
(emp
Mans
costu
perfo
Appli
on s
Stage

tachment 2
ww.musicc
97
ination wh
abstract,
ught, the
the term i
goods or s
11, 200 U
1822, 182
ing applica
entertainm
ic City On
hasis origi
ion & Fa
med, fea
rmers.”
cant’s web
tage (emp
” signage

0 to Septem
ityonstage.c
ether a p
but in r
context in
s likely to
ervices in
SPQ 215,
3 (TTAB 2
nt’s dinne
ent that
Stage is
nal) at the
rm–fully
turing a
site also f
hasis add
overhead:1
ber 16, 201
om/index.p
6
articular t
elation to
which th
have to
the mark
218 (CCPA
012). App
r theatre
is perform
a brand n
Studio G
staged (e
dynamic
eatures an
ed) with
4
1 Office Act
hp.
erm is me
the good
e term is
the averag
etplace. I
1978); In
licant’s w
would und
ed on a sta
ew live p
allery at t
mphasis
cast o
image of
the “Mus
ion from
rely descr
s or servi
used, an
e prospec
n re Abco
re Phose
ebsite dem
erstand th
ge:
roductio
he Fontan
added) an
f talente
performe
ic City O

iptive mus
ces for w
d the pos
tive purch
r Developm
on Techno
onstrates
at applica
n
el
d
d
rs
n
t be
hich
sible
aser
ent
logy
that
nt’s
Serial No. 85272897

7

The results of the examining attorney’s online search also demonstrate that the
terms “On Stage” and “Onstage” are used descriptively to refer to dinner theatre
productions:15
Clearwater RV Park . . . Picayune Theater (on-stage
dinner theater)
http://clearwaterrv.net/localattractions.html

The Murphy Theatre in downtown Wilmington will
present its’ [sic] on-stage dinner theater at 6:30 pm
October 11 . . . . the stage will be decorated in . . .
http://wnewsj.com/IVain.asp?SectionID-49&SubSectionID-
156&ArticleID-169774

Dinner theater (sometimes called dinner and a
show) is a form of entertainment that combines a
restaurant meal with a staged play or musical. . . .
Barn Dinner Theatre, Roanoke, Virginia: Back in its
early days, the performance’s cast not only acted on
stage, they were the waiters and waitresses . . .
http://en.wikipedia.org/wiki/Dinner_theater

GCP’s THE DROWSY CHAPERONE now on stage at
Roger Rocka’s Dinner Theater
http://www.youtube.com/watch?v-MFNG83vUZg

Temple Theater for the Performing Arts, Meridian MS,
Murder Mystery Dinner Theater “ . . . are partnering
to bring the ‘whodunit’ to the stage, complete with
involvement by the audience and a great meal . . .
Dinner servers are also part of the show and the play
happens both at the tables and on stage.”
http://templetheater.wordpress.com/2012/04/09/the wheel of
murder/

Clearwater Tribune Online: Mystery Dinner Theater
on stage this weekend.
http://www.clearwatertribune.com/Weekly%20Pages/061010/Ju
ne1010MysteryTheater.htm

(emphases added)

15 See attachments 1, 2, 5, 7, 12, 14, 15 and 17 to April 27, 2012 final Office Action.
Serial No. 85272897

8

Whether a term such as the applied-for mark which is created by combining
two or more descriptive terms may be registrable depends on whether, in
combination, a new and different commercial impression is achieved and/or the
combined term imparts a bizarre, incongruous or otherwise nondescriptive meaning
as used in connection with the goods or services. In re Colonial Stores, Inc., 394
F.2d 549, 157 USPQ 382, 385 (CCPA 1968) and In re Associated Theatre Clubs Co.,
9 USPQ2d 1660, 1662 (TTAB 1988). If each component retains its descriptive
significance in relation to the goods or services as is the case with respect to
applicant’s applied-for mark, the combination results in a composite that is itself
descriptive. DuoProSS Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F.3d
1247, 103 USPQ2d 1753, 1759 (Fed. Cir. 2012) (SNAP SIMPLY SAFER merely
descriptive for medical devices); see also In re Petroglyph Games Inc., 91 USPQ2d
1332, 1341 (TTAB 2009) (BATTLECAM merely descriptive for computer game
software); In re King Koil Licensing Co., 79 USPQ2d 1048, 1052 (TTAB 2006) (THE
BREATHABLE MATTRESS held merely descriptive of beds, mattresses, box
springs, and pillows where BREATHABLE retained its ordinary dictionary meaning
when combined with MATTRESS and resulting combination was used in a
descriptive sense); Associated Theatre Clubs, 9 USPQ2d at 1663 (GROUP SALES
BOX OFFICE is merely descriptive of theater ticket sales services because it is a
combination of the two common descriptive terms most applicable to applicant’s
services and remains a common descriptive compound expression).
Serial No. 85272897

9

The evidence shows that not only are the components of the applied-for mark
descriptive, they retain their descriptive meanings in relation to applicant’s
entertainment and dinner theatre services resulting in a composite mark that is
descriptive. A mark does not need to be merely descriptive of all the goods or
services specified in an application. Chamber of Commerce, 102 USPQ2d at 1219
(“A descriptiveness refusal is proper ‘if the mark is descriptive of any of the
[services] for which registration is sought.’”) (quoting In re Stereotaxis Inc., 429 F.3d
1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005)(citations omitted)); Franklin County
Historical Society, 104 USPQ2d at 1089. Because the foregoing evidence establishes
that applicant’s applied-for mark is descriptive of several of its recited services, the
refusal to register MUSIC CITY ON STAGE under § 2(e) is proper.
The question is not whether someone presented with only the mark could
guess what the services are, but “whether someone who knows what the goods and
services are will understand the mark to convey information about them.”
DuoProSS Meditech, 103 USPQ2d at 1757 (quoting In re Tower Tech, Inc., 64
USPQ2d 1314, 1316-17 (TTAB 2002)); Franklin County Historical Society, 104
USPQ2d at 1087. Based on the evidence presented, consumers familiar with
entertainment and dinner theatre services would understand that the applied-for
mark describes the live entertainment services provided by applicant and would not
have to undertake the mature thought or multi-stage reasoning process urged by
applicant to discern the nature of applicant’s entertainment and dinner theatre
Serial No. 85272897

10

services. Therefore, the applied-for MUSIC CITY ON STAGE mark is merely
descriptive for applicant’s services.

Decision: The refusal to register the applied-for MUSIC CITY ON STAGE mark
under § 2(e)(1) of the Trademark Act is affirmed.