Nicolas Porter

Trademark Trial and Appeal Board

Apr 24, 2018

No. 87227122 (T.T.A.B. Apr. 24, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 24, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Porter
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Serial No. 87227122
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Gene Bolmarcich of Law Offices of Gene Bolmarcich,
for Nicolas Porter.

Valerie Kaplan, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
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Before Bergsman, Shaw, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:

Nicolas Porter (“Applicant”) seeks registration on the Principal Register of the
mark TRUWALLET in standard characters for “providing on-line cash account
services offered in connection with a network marketing service,” in International
Class 36.1 The Trademark Examining Attorney refused registration of Applicant’s
mark under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051 and 1127, on

1 Application Serial No. 87227122 was filed on November 4, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
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the ground that Applicant’s specimen, submitted with his Statement of Use, does not
show use of the mark for the identified services. See Trademark Rule 2.56(a), 37
C.F.R. § 2.56(a). After the Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Evidentiary Issue

Before discussing to the merits of the refusal, we address the Examining
Attorney’s objection to Applicant’s submission with his appeal brief of a registration
certificate for the trademark TRUNITED for “network marketing services” which
appears to be owned by Applicant, purportedly to demonstrate that the specimen
submitted with the Statement of Use is a page from Applicant’s TRUNITED website
on which the TRUWALLET service is advertised. See 4 TTABVUE 3 (Applicant’s
Brief) and 5 TTABVUE (registration certificate2). The Examining Attorney objected
to the registration on the ground of untimeliness.3 Trademark Rule 2.142(d), 37
C.F.R. § 2.142(d), provides in relevant part “[t]he record in the application should be
complete prior to the filing of an appeal. Evidence should not be filed with the Board
after the filing of a notice of appeal.” Insofar as the Examining Attorney has timely
interposed an objection in her brief to Applicant’s late-filed evidence, the objection is
sustained and the registration certificate submitted concurrently with Applicant’s

2 Registration No. 5031582 issued August 30, 2016.
3 In a footnote, Applicant’s brief acknowledges that the registration is untimely and states
that “Applicant fully expects this ‘evidence’ to be objected to as untimely . . . .” 4 TTABVUE
3.
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appeal brief has been given no consideration.4 See e.g., In re Fiat Grp. Mktg. & Corp.
Commc’ns S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014).
II. Applicable Law

We now consider whether the specimen of record shows the mark TRUWALLET
used to identify “providing on-line cash account services offered in connection with a
network marketing service.”
Under Section 45 of the Trademark Act, 15 U.S.C. § 1127, a service mark is used
in commerce “when it is used or displayed in the sale or advertising of services.” “[A]n
acceptable specimen must show ‘some direct association between the offer of services
and the mark sought to be registered therefor.’” In re Pitney Bowes, Inc., 125 USPQ2d
at 1419 (quoting In re Universal Oil Prods. Co., 476 F.2d 653, 177 USPQ 456, 457
(CCPA 1973)). In determining “whether a mark is used in connection with the
services described in the [application], a key consideration is the perception of the
user.” In re JobDiva, Inc., 843 F.3d 936, 121 USPQ2d 1122, 1126 (Fed. Cir. 2016).
Applicant submitted the following specimen which he described as an “online
brochure for the services”:5

4 We are nonetheless aware of Applicant’s earlier statement that “[t]he specimen refers to
TruWallet in several places . . . that clearly explains it is . . . for members of the Trunited
marketing network.” August 25, 2017 Response to Office Action, TSDR 1. See In re Pitney
Bowes, Inc., 125 USPQ2d 1417, 1420 (TTAB 2018) (consideration given to information
provided by specimen itself and to explanation offered by Applicant clarifying nature,
content, or context of use of specimen if consistent with what specimen shows). All citations
to the TSDR database are to the downloadable .pdf version of the documents.
5Statement of Use, TSDR 1. Page breaks and blank space have been removed from the
specimen so it will fit on a single page in this decision; no text or image has been removed.
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In support of her refusal, the Examining Attorney relies on the following
definitions and description of the term “cash account”:6
• 1. [A]n account in which all transactions are in money. 2. Finance. [A]n
account in which purchases are paid for in full, as distinguished from
purchasing on credit or margin;7
• [1] A brokerage account that settles transactions on a cash–rather than
credit–basis. [2] A brokerage account requiring that cash payments on
purchases and delivers on sales be made promptly. . . . The cash account is
the most popular type of brokerage account . . . . [3] A ledger account which
records all of a company’s cash incomings and outgoings;8 and
• This type of account asks you to deposit cash, and then you can use that
cash to buy stocks, bonds, mutual funds, or other investments. It’s not much
more complicated than that.9
The Examining Attorney argues that Applicant’s TRUWALLET services appear
to be a reward program using credit that can be used to pay for future transactions.10

6 Also of record is a definition of “cash account” from the COLLINS ENGLISH DICTIONARY
(www.collinsdictionary.com) attached to the September 27, 2017 Office Action, TSDR 8.
However, because the definition is British English, it has no probative value. See In re
Manwin/RK Collateral Trust, 111 USPQ2d 1311, 1313 n.18 (TTAB 2014).
7 Dictionary.com Unabridged, based on the Random House Dictionary © Random House, Inc.
2017; attached to September 27, 2017 Office Action, TSDR 7.
8 TheFreeDictionary (financial-dictionary.thefreedictionary.com); attached to September 27,
2017 Office Action, TSDR 10-11.
9 “Cash Account vs. Margin Account: What’s the Difference?,” from The Motley Fool (www.
fool.com); attached to September 27, 2017 Office Action, TSDR 5.
10 Examining Attorney’s Brief, unnumbered p. 4 (7 TTABVUE 5).
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In support of this argument, she points to wording in the specimen which explains to
a user of Applicant’s Trunited platform that “You accumulate points from the 1st of
the month until the 31st of the month. You receive your truWallet and Affiliate Cash
on the 7th of the following month” and “Your purchases are rewarded with earnings
that go into your truWallet. These earnings are good toward future purchases.”11 The
Examining Attorney explains that the combination of these statements on the
specimen suggest that Applicant is providing a rewards program using credit that
can then be used to pay for future transactions; specifically, that the specimen
indicates that consumers will be “rewarded with earnings” each month that “are good
toward future purchases,” creating the impression that the services offered constitute
a points program or a consumer loyalty program using credit.12
In his March 14, 2017 Response to Office Action, Applicant explained that he
“provides a network marketing service (Trunited.com) whereby participating
members sell goods and earn financial rewards from a pool of money generated by
the operation of the sales network. Truwallet is the financial account, provided by
Applicant’s service, where individual members accrue their earnings from the
marketing network.”13 In his Appeal Brief, Applicant further explained that “[t]he
profits made by Applicant in connection with [his] operation of the Trunited platform
are paid out to the consumers based on a proprietary algorithm . . . [and t]hese

11 Id.
12 Id.
13 March 14, 2017 Response to Office Action TSDR 1.
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payouts are accumulated for the consumer members in the TruWallet cash account
. . . [which] can be used as cash to pay for additional purchases on the Trunited
platform.”14 After the Examining Attorney’s initial specimen refusal, Applicant
submitted an annotated copy of the specimen to explain that TRUWALLET “is a ‘cash
account,’ regardless of how the money is paid into the account,”’ “acts as a ‘cash
account,’” and “can be used as cash.”15
Looking to the definitions of “cash account” that the Examining Attorney made of
record, it is clear that Applicant does not provide brokerage accounts or corporate
ledger accounts. It also appears that Applicant does not offer accounts in which all
transactions are in money, or an account in which purchases are paid for in full. In
fact, Applicant did not argue that his services fit any of the record definitions of “cash
account.” Instead, Applicant merely argued that the earnings a user may receive “can
be used as cash.” That, however, does not fit any record definition of “cash account.”
The specimen does not indicate that the TRUWALLET account is one in which all
transactions are in money, or one in which purchases are paid for in full. There is no
indication that a user may deposit or withdraw money from the account, or even
withdraw the rewarded earnings for cash; instead the account is limited to a user’s
share of Trunited profits that are credited by Applicant based on points earned from
using the Trunited platform and which must be used solely for future purchases on
the Trunited platform. We agree with the Examining Attorney that consumers will

14 Applicant’s Brief, pp. 2-3 (4 TTABVUE 3-4).
15 August 25, 2017 Response to Office Action, TSDR 3-4.
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perceive Applicant’s TRUWALLET service as a points program or consumer loyalty
program in which the user is rewarded with earnings each month that are good only
toward future purchases.
III. Decision

The refusal to register Applicant’s mark TRUWALLET because the specimen
does not show use of the mark on the identified services is affirmed.