Michael E. Love

Trademark Trial and Appeal Board

Jan 30, 2002

No. 75405215 (T.T.A.B. Jan. 30, 2002)

1/30/02
Hearing:
October 10, 2001
Paper No. 18
CEW

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Michael E. Love
___________

Serial No. 75/405,215
___________

Mark Ungerman of Fulbright & Jaworski for applicant.

Ingrid Eulin, Trademark Examining Attorney, Law Office
111 (Craig Taylor, Managing Attorney).
____________

Before Walters, Holtzman and Rogers, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Michael E. Love has filed a trademark application to
register the mark AMERICA’S BAND for “entertainment in
the nature of live performances by a musical group.”1
The Trademark Examining Attorney has issued a final
refusal to register, under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. 1052(e)(1), on the ground that

1 Serial No. 75/405,215, in International Class 41, filed December 15,
1997, based on an allegation of a bona fide intention to use the mark in
commerce.

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/405,215
2
applicant’s mark is merely descriptive of his services
because it is laudatory.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, and an oral hearing
was held. We affirm the refusal to register.
The Examining Attorney contends that the phrase
AMERICA’S BAND touts the musical group’s superiority,
stating that the phrase “compares band services … and
applicant is touted as best.” She states that “[t]he
term BAND immediately conveys the exact nature of the
services and the term AMERICA’S also lacks the requisite
level of uniqueness, ingenuity or originality. … The
term merely furthers the laudatory commercial impression
that the applicant’s band is the best and favorite in all
of America.” She states that “[t]he Beach Boys gained
popularity by exploiting American themes and ideals
during a time when music and popular culture were
inundated by British performers, including the Beatles.”
The record includes excerpts from articles retrieved
by the Examining Attorney from the LEXIS/NEXIS database
submitted in support of the Examining Attorney’s
position.2 The Examining Attorney asserts that the

2 The originally assigned Examining Attorney conducted two broad
searches of the NEXIS database and placed in the record the entire
results of his search, in a summary format. The results include many
Serial No. 75/405,215
3
articles establish that AMERICA’S BAND “conveys the
meaning of favorite or popular”; and that the phrase has
been used to refer to a specific band, the Beach Boys, of
which applicant was a founding member.3
Applicant admits that the term BAND is merely
descriptive in connection with his services, but argues
that the phrase AMERICA’S BAND is not merely descriptive
in connection therewith; that applicant chose the mark
“to refer back to a time when the Beach Boys’ music
celebrated American styles and ideas”; and that the
phrase is only suggestive because it “is designed to
conjure up feelings of nostalgia for those things truly
American, such as apple pie, Chevrolet convertibles, malt
shops, California surfing, etc.” Applicant contends that
“no band is truly America’s band”; and that his mark is
neither puffery extolling the superiority of his musical

duplicative articles and the vast majority of articles are entirely
irrelevant. All of these articles should have been reviewed and
consolidated before submission of a representative sample. Of the
relevant articles, there are several that refer to applicant’s band by
the name “America’s Band”; as well as several articles referring to the
Beach Boys as “America’s Band,” and a few articles indicating that the
Beach Boys referred to themselves as “America’s Band.” There is one
reference that uses the phrase “America’s band” to refer to yet a third
musical group, Alabama. Other phrases appearing in excerpts as band
names or descriptors, such as “Heartland of America” and “Heritage of
America,” are not probative of the significance of “America’s Band.”

3 The Examining Attorney has not refused registration under Section 2(a)
on the ground that the mark creates a false suggestion of a connection
with the Beach Boys and, therefore, that issue is not before us and has
not been considered.

Serial No. 75/405,215
4
group nor a laudatory phrase directed to the quality of
the group’s live performances. Applicant submitted
copies of sixteen third-party registrations for marks
consisting of the word “America’s” followed by a merely
descriptive term which is disclaimed (for example,
AMERICA’S RESORT, AMERICA’S GUITAR, AMERICA’S ACTION
FIGURE, AMERICA’S PHARMACY and AMERICA’S ELECTRONIC
BROKERAGE).
With his brief, applicant submitted a copy of a
letter to him, dated January 8, 1998, from a company that
appears to represent the Beach Boys, although that
relationship is not established in the record except by
implication. Applicant describes the letter as granting
him permission to use the name “America’s Band” to refer
“to a musical group made up of former Beach Boys
members.” Whether or not the letter grants such
permission is immaterial in this case because neither a
Section 2(a) issue, false suggestion of a connection with
the Beach Boys, nor a Section 2(d) issue, likelihood of
confusion with any trademarks owned by the Beach Boys, is
before us in this appeal. The letter is relevant only to
the extent that it may relate to the issue of
descriptiveness in this appeal.
Serial No. 75/405,215
5
Applicant states that his mark differs from the
marks beginning with AMERICA’S found to be laudatory in
In re Wileswood, Inc., 201 USPQ 400 (TTAB 1978)
[AMERICA’S BEST POPCORN and AMERICA’S FAVORITE POPCORN];
and In re Carvel Corp., 228 USPQ 65 (TTAB 1984)
[AMERICA’S FRESHEST ICE CREAM]. Applicant does not
enunciate a specific reason for that asserted difference,
although, presumably, it is the fact that applicant’s
mark does not include an adjective such as “best,”
“favorite,” or “freshest.”
The test for determining whether a mark is merely
descriptive is whether the involved term immediately
conveys information concerning a quality, characteristic,
function, ingredient, attribute or feature of the product
or service in connection with which it is used, or
intended to be used. In re Engineering Systems Corp., 2
USPQ2d 1075 (TTAB 1986); In re Bright-Crest, Ltd., 204
USPQ 591 (TTAB 1979). It is not necessary, in order to
find a mark merely descriptive, that the mark describe
each feature of the goods or services, only that it
describe a single, significant quality, feature, etc. In
re Venture Lending Associates, 226 USPQ 285 (TTAB 1985).
Further, it is well-established that the determination of
mere descriptiveness must be made not in the abstract or
Serial No. 75/405,215
6
on the basis of guesswork, but in relation to the goods
or services for which registration is sought, the context
in which the mark is used, and the impact that it is
likely to make on the average purchaser of such goods or
services. In re Recovery, 196 USPQ 830 (TTAB 1977).
We find that the evidence of record supports the
conclusion that AMERICA’S BAND is merely descriptive in
connection with entertainment in the nature of live
performances by a musical group. While the phrase does
differ from the cited cases because it does not include
an adjective such as “best” or “favorite,” the evidence
demonstrates clear use of the phrase in a laudatory
manner to indicate that certain bands, the Beach Boys and
Alabama, are being touted as quintessentially “American.”
Use of the phrase in such a manner in conjunction with
the Beach Boys is further supported by the letter
submitted by applicant, wherein applicant is advised that
“[i]t must be clearly evident that ‘America’s Band’ is
the name of the band and not a description.” In other
words, the phrase must be clearly asserted by applicant
as a purported trademark rather than as the descriptive
phrase it is when it is touting the Beach Boys. Based on
the evidence, we conclude that AMERICA’S BAND is a merely
Serial No. 75/405,215
7
descriptive phrase that is not an inherently distinctive
trademark for a musical group.
We are not convinced otherwise by the third-party
registrations submitted by applicant. Not only do the
goods and services differ from the services in this case,
but we do not know what evidence was submitted in
relation to those applications. Each case must be
decided based on the evidence submitted, and facts
adduced, in that case.
Decision: The refusal under Section 2(e)(1) of the
Act is affirmed.