QVC, Inc.v.Home Shopping Network, Inc.

Trademark Trial and Appeal Board

Dec 17, 1999

No. 91104181 (T.T.A.B. Dec. 17, 1999)

Hearing: Paper No. 76
April 14, 1999 PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC. 17, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
QVC, Inc.
v.
Home Shopping Network, Inc.
_____
Opposition Nos. 102,173; 103,135; 104,078;
104,173; 104,181; 104,193; and 104,323
to application Serial Nos.
74/591,905 and 74/591,904 filed on October 28, 1994;
74/607,590 filed on December 6, 1994; 74/605,832 filed on
December 2, 1994; 74/596,583 filed on November 7, 1994;
74/666,266 filed on April 12, 1995; and 74/620,226 filed on
January 10, 1995 respectively
_____
Glenn Gundersen, Martin J. Black, Andrew Fish and Terrence
A. Dixon of Dechert Price & Rhoads for QVC, Inc.
Edward T. Colbert and Brian S. Mudge of Kenyon & Kenyon for
Home Shopping Network, Inc.
______
Before Hairston, Walters and Chapman, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Home Shopping Network, Inc. (Applicant) has filed
applications to register the following marks:
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
2
(a) HSN HOME SHOPPING NETWORK (Section 2(f) as to HOME
SHOPPING NETWORK) for “entertainment services
in the nature of an ongoing television program
whereby viewers are informed of various goods that
can be purchased by the viewers”;1
(b) HSN HOME SHOPPING NETWORK and design (Section 2(f)
as to HOME SHOPPING NETWORK) as reproduced below
for “entertainment services in the nature of an
ongoing television program whereby viewers are
informed of various goods that can be purchased by
the viewers”;2
(c) HSN HOME SHOPPING NETWORK and design (NETWORK is
disclaimed) as reproduced below
for “licensing services, namely, providing cable
and broadcast television operators and

1 Serial No. 74/591,905 filed October 28, 1994, alleging first
use and first use in commerce on July 1, 1985.
2 Serial No. 74/591,904 filed October 28, 1994, alleging first
use and first use in commerce on July 1, 1985.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
3
broadcasters a license to show television
programs”;3
(d) HSN HOME SHOPPING NETWORK and design (Section 2(f)
as to HOME SHOPPING; NETWORK is disclaimed) as
reproduced below
for “television broadcasting services”;4
(e) HOME SHOPPING CLUB for “licensing services,
namely, providing cable and broadcast
operators and broadcasters a license to show
television programs”;5
(f) HSN HOME SHOPPING NETWORK and design (Section 2(f)
as to HOME SHOPPING; NETWORK is disclaimed) as
reproduced below
for “television broadcasting services” and
“entertainment services in the nature of an
ongoing television program whereby viewers are
informed of various goods that can be purchased
by the viewers”;6 and

3 Serial No. 74/607,590 filed December 6, 1994, alleging first
use and first use in commerce in May 1985.
4 Serial No. 74/605,832 filed December 2, 1994, alleging first
use and first use in commerce on July 1, 1985.
5 Serial No. 74/596,583 filed November 7, 1994, alleging first
use and first use in commerce in May 1985.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
4
(g) HOME SHOPPING NETWORK for “credit card services.”7
Following publication of the marks under Section 12(a)
of the Trademark Act, timely oppositions were filed against
each application by QVC, Inc. (Opposer). As grounds for
opposition, in each case, opposer essentially asserts that
it is one of the nation’s leading retailers; that it sells a
variety of merchandise to millions of customers nationwide
primarily through its own cable television channels; that
applicant also sells merchandise to customers nationwide
through its own television channel; that the term “home
shopping” is commonly used as a descriptive or generic term
for the type of services provided by opposer and applicant;
that applicant’s use of “home shopping” has not been
substantially exclusive; that “home shopping” has not become
distinctive of applicant’s services; that “home shopping” is
a term that is necessary to properly describe opposer’s
business or aspects of opposer’s services; and that
applicant is not entitled to registration of its mark in the
absence of a disclaimer of “home shopping.”8

6 Serial No. 74/666,266 filed April 12, 1995, which alleges a
bona fide intention to use the mark in commerce.
7 Serial No. 74/620,226 filed January 10, 1995, alleging first
use and first use in commerce in October 1991.
8 We note that in Opposition Nos. 102,173 and 103,135 opposer
also alleged that the phrase HOME SHOPPING NETWORK had not become
distinctive of applicant’s services. However, inasmuch as
opposer did not pursue this issue, we have given it no
consideration.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
5
Applicant, in its answers, denies the salient
allegations in the notices of opposition. In orders dated
July 28 and December 31, 1997, the Board consolidated the
oppositions.
The record in this consolidated proceeding is
voluminous. It consists of the pleadings; the files of the
seven applications; the parties’ stipulated evidence;
three testimony depositions, with exhibits, taken by
opposer; and official records, printed publications,
registrations, discovery responses, and court decisions made
of record by means of opposer’s ten notices of reliance. In
addition, applicant submitted fourteen testimony
depositions, with exhibits; and discovery responses, printed
publications, and official records by means of twelve
notices of reliance. Both parties filed briefs on the case
and both were represented by counsel at an oral hearing
before the Board.
Evidentiary Objections
Before turning to the merits of the case, we must
consider several evidentiary disputes that have arisen
between the parties.
The first such dispute involves opposer’s first through
fourth consolidated notices of reliance; the entire
testimony deposition (with exhibits) of opposer’s witness,
Millicent Seaner; and portions of the testimony deposition
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
6
(and related exhibits) of opposer’s witness, Frederick
Siegel, all submitted during opposer’s rebuttal testimony
period. Applicant objects to this evidence on the ground
that it is improper rebuttal in that it constitutes matter
in support of opposer’s pleading that the term “home
shopping” is generic or descriptive, and that, as such, it
is proper only for opposer’s case-in-chief. There is no
question that this evidence is pertinent to the allegations
in opposer’s pleading and that generally, it would be proper
for opposer’s case-in-chief and therefore improper as
rebuttal evidence.9 However, applicant, by choosing to
present evidence to establish, notwithstanding opposer’s
evidence, acquired distinctiveness of “home shopping,”
reopened the issues of genericness and descriptiveness,
thereby entitling opposer to rebut any implication or
assumption that might be drawn from applicant’s evidence.
Stated differently, opposer was entitled to submit rebuttal
evidence to deny, explain, or discredit applicant’s evidence
purporting to show that “Home Shopping” had acquired
distinctiveness or to rebut any improper implication or
assumption that could be drawn from applicant’s evidence.
Under these circumstances, the above evidence offered by

9 The evidence includes, inter alia, two dictionary definitions
of the term “home shopping;” the results of a search of the NEXIS
database for “home shopping;” and third-party applications and
registrations which include “home shopping” in the identification
of goods/services.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
7
opposer during its rebuttal testimony period is deemed
proper rebuttal and therefore properly forms a part of
opposer’s record in this proceeding. See Minnesota Mining &
Manufacturing Co. v. Stryker Corp., 179 USPQ 433 (TTAB
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
8
1973); and Nationwide Consumer Testing Institute, Inc. v.
Consumer Testing Laboratories, Inc., 159 USPQ 304 (TTAB
1968).
The next dispute involves the testimony deposition of
opposer’s expert witness, Alvin Ossip. First, applicant
seeks to strike the testimony in its entirety on the ground
that opposer failed to identify Mr. Ossip during discovery
and subsequently withheld documents about Mr. Ossip’s
professional experience, which prejudiced applicant in
cross-examination. Second, applicant seeks to strike those
portions of the Ossip testimony which concern the design of
the consumer survey introduced by applicant herein because,
according to applicant, Mr. Ossip was not competent to
testify in this regard.
As to applicant’s motion to strike the Ossip testimony
in its entirety, opposer states it did not know during the
discovery period that it would be calling Mr. Ossip as an
expert witness, and that it was only after applicant called
its own expert witness, Jacob Jacoby, during its testimony
period that opposer decided to call Mr. Ossip to refute Dr.
Jacoby’s testimony. Further, opposer states that it
promptly notified applicant of its intention to call Mr.
Ossip as a witness.
The record herein shows that opposer identified Mr.
Ossip to applicant some twenty-nine days before his trial
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
9
deposition. Indeed, applicant conducted a discovery
deposition of Mr. Ossip prior to his trial deposition, and
during his trial deposition applicant conducted a lengthy
and detailed cross-examination. Not only has opposer
offered a reasonable explanation for not identifying Mr.
Ossip during discovery, but it is clear that applicant has
suffered no prejudice since applicant subsequently conducted
a discovery deposition and cross-examination of Mr. Ossip.
Under the circumstances, applicant’s request to strike Mr.
Ossip’s testimony in its entirety is denied.
As to applicant’s additional motion to strike those
portions of the Ossip testimony concerning the particular
design of applicant’s consumer survey on the ground that Mr.
Ossip was not competent as to this matter, this kind of
objection bears solely on the weight to be accorded Mr.
Ossip’s testimony. It is insufficient to attack the
admissibility of those portions of Mr. Ossip’s testimony
concerning the survey design. Thus, applicant’s request to
strike those portions of the Ossip testimony is denied.
Lastly, applicant seeks to strike, on the ground of
lack of foundation, certain portions of the testimony of
opposer’s witness, Frederick Siegel and Exhibit 22 which
opposer introduced during the deposition of applicant’s
witness, John Taylor. Inasmuch as opposer made no
objections to applicant’s request to strike this evidence,
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
10
we consider the request conceded, and therefore we have not
considered this evidence in reaching our decision herein.
The Parties
Opposer, QVC, Inc., is the nation’s largest electronic
retailer. Opposer produces live television programs that
are distributed by means of cable systems, broadcast
networks and satellite transmissions. Through these
programs, consumers at home may view a large variety of
products being offered for sale and purchase these products
by telephone.
Opposer’s chief competitor in the electronic retailing
industry is applicant, Home Shopping Network, Inc.
Applicant pioneered the concept of “televised shopping” in
1982 with its regional broadcast of a program titled “Home
Shopping Club.” In 1985 applicant took its program
nationwide. Applicant’s current televised shopping program
is called “The Home Shopping Network” and is available in
more than 70 million U.S. households through cable,
broadcast and satellite transmissions.
The Issues
The following issues are before us for consideration:
(1) whether the term “home shopping” is generic of the
services recited in the involved applications; (2) if not,
whether “home shopping” is merely descriptive as used in
connection with such services; and (3) if “home shopping” is
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
11
merely descriptive, whether the term has acquired
distinctiveness in connection with such services.10
Opposer’s Evidence
Opposer has submitted the evidence set forth below to
support its contention that the term “home shopping” is
generic of the services identified in applicant’s
applications. In the alternative, opposer maintains that
“home shopping” is merely descriptive and has not acquired
distinctiveness with respect to such services.
Printed Publications
Opposer has introduced several hundred photocopies of
articles and excerpts retrieved from the NEXIS database
wherein the term “home shopping” is used in a generic
fashion. The following excerpts from newspapers and trade
publications are representative of the generic uses (i.e.,
uses not referring to applicant’s services under the
designation “home shopping”):
What could be more bazaar than a TV dial
packed with home shopping programs, of round-
the-clock hawking by TV pitchmen offering
viewers the chance to use their telephones
and credit cards to purchase close-out

10 Applicant contends that opposer has dropped its claims of
genericness/descriptiveness with respect to applicant’s
broadcasting services, licensing services and credit card
services because opposer does not discuss these services in the
argument section of its main brief. However, we note that in the
“Statement of the Issue” section of opposer’s brief, it lists
those applications which cover applicant’s broadcasting services,
licensing services and credit card services. Thus, we cannot say
that opposer has dropped its claims of genricness/descriptiveness
with respect to these services.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
12
merchandise and liquidated goods at bargain
prices? (Chicago Tribune, December
14, 1986);
The television home-shopping industry has
lost some of its luster in the past year.
(Los Angeles Times, December 30, 1987);
. . . home shopping programs now seem to be
dropping from sight as quickly as you can
change the channel. (St. Petersburg Times,
November 30, 1987);
“What we are seeing is, in a sense, a climax
to the consolidation that has been happening
in the home-shopping arena in the last
couple of years,” said Kenneth Goldman of
Hanifen, Imhoff Inc. in Denver. (The New
York Times; July 11, 1989);
Only two heavyweights are left to fight it
out in the television retailing arena, having
beaten everyone else into electronic oblivion.
Gone from the bazaar of home shopping--
where TV watchers order live by telephone
the products they see on the screen--are
Caravan of Values, America’s Marketplace, the
Consumer Discount Network, the Television
Auction Channel and Crazy Eddie’s World of
Home Entertainment Network. (St. Petersburg
Times; December 3, 1989);
Robert Johander spotted his opening in the
spring of 1990—when QVC Network, Inc., the
Pennsylvania-based operator of the nation’s
largest home shopping network, dropped CVN
Co.’s TV operations and sent 675 workers
packing. (Star Tribune; December 12, 1992);
Home shopping by television, sometimes
belittled for its pitchmen hawking baubles
and kitchen gadgets, moved closer yesterday
to becoming a major source of consumer
goods and new services as the two dominant
cable channels in the business said they
would consider a merger. (The Boston Globe,
July 13, 1993);
Following Saks, Macy’s and cubic zirconium
peddlers, NBC is about to go on the air with
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
13
a program intended to stake a claim in the
fast-growing home-shopping market. (The
Orange County Register, June 10, 1993);
In the world of home shopping cable channels,
QVC and Home Shopping Network are siblings
in the Tele-Communications Inc. family.
(Variety, April 24, 1995);
The [National Cable Television Association]
show will feature plenty of new video
programming as well, with at least 26 new
services being announced. The newcomers
include . . . Value-Vision International
Inc., a home shopping network. (Multichannel
News, May 8, 1995);
. . . the study shows that three core services
that have garnered much media attention --
movies-on-demand, home shopping and online
services -- aren’t going over particularly well
with consumers. . . . In the home-shopping
arena, only 8% said they watch channels such
as QVC and the Home Shopping Network.
(Variety, April 10, 1995);
Opposer’s Registrations and Third-Party Registrations
The record includes nine of opposer’s registrations and
numerous third-party applications and registrations for
services which contain in the recitation of services, the
terms “home shopping;” “home shopping services”; “home
shopping programs”; “television home shopping services”; and
“home shopping channels”, respectively. In particular, we
note Registration No. 1,757,461 for the mark VALUE VISION
for “television home shopping services”, Registration No.
2,121,002 for the mark ANIMAL SHOPPING CLUB for “televised
home shopping in the field of animal products”, and
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
14
opposer’s Registration No. 1,455,889 for the mark QVC for
“providing at home shopping services in the field of general
merchandise by means of cable television.”
Dictionary Evidence
The record also includes two dictionary definitions of
the term “home shopping”: (1) “shopping from home using TV
channels, catalogues, etc.” The Oxford Encyclopedic English
Dictionary (1996); and (2) “buying goods and services
without leaving the home, via the Internet, TV, telephone,
and mail order.” The Newbury House Dictionary of American
English (1999).
Additional Evidence
Opposer has made of record a number of decisions and
regulations of the Federal Communications Commission (FCC),
the agency responsible for regulating the television
broadcasting and cable industries. The term “home shopping”
is used in these decisions and regulations in a generic
fashion on at least thirty occasions. In particular, we
note 47 C.F.R. §76.922(e)(3)(ii) which states, in pertinent
part:
With respect to the per channel adjustment only,
this deduction shall not apply to revenues by
an operator from a programmer as commissions on
sales of products or services offered through
home shopping services.
Also, in an opinion, the FCC stated:
Moreover, WSHE is a specialty station which
airs home-shopping programs. Home shopping
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
15
stations typically attract a limited audience
but can provide a diverse and valuable service
to subscribers.
DP Media of Martinsburg, Inc. Television Station WSHE(TV),
1998 WL 39524(Feb. 4, 1998) at 6.
Further, opposer made of record filings before the
Securities and Exchange Commission and annual reports
wherein opposer and applicant have used “home shopping” in a
generic manner. For example, applicant’s 1987 Annual Report
stated, in pertinent part, that “[b]y September 1986 the
Company [applicant] had begun nationwide transmission via
broadcast TV of a second home shopping service.”
Opposer’s Schedule 13 D filed on November 11, 1993 with
the Securities and Exchange Commission states, in pertinent
part: “QVC operates home shopping channels that reach more
than 48 million homes, with annual revenues in excess of
$1.0 billion.”
Finally, opposer submitted copies of several court
decisions wherein “home shopping” is used in a generic
manner. For example, the United States Court of Appeals for
the District of Columbia, in affirming a FCC rule, noted
that the FCC created a category for programmers “proposing
to use the channel for more than 50% of their lease time to
sell products directly to consumers (such as home shopping
networks and infomercials).” See ValueVision International,
Inc. v. FCC, 149 F.3d 1204, 1207 n.3, 1208 (D.C. Cir. 1998).
The court further stated that “Petitioner ValueVision
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
16
International, Inc., is engaged in the business of producing
television home shopping programs for distribution over
cable systems.” Id. At 1208.
Applicant’s Evidence
It is applicant’s position that the term “home
shopping” is not generic of the services identified in its
applications. Rather, applicant maintains that through use
and promotion of the term “Home Shopping” alone, and as part
of other phrases such as Home Shopping Club, Home Shopping
Spree, and Home Shopping Network, “Home Shopping” has become
distinctive of its services. In particular, applicant
contends that Home Shopping functions as a strong brand for
applicant. In support of its contentions, applicant relies
on the evidence set forth below.
Applicant’s Use and Promotion of Home Shopping
Applicant took the testimony of a number of its
officers and employees. According to the testimony of these
witnesses, from its earliest days, applicant has displayed
an on-screen logo (“bug”) as a channel identifier on each of
its televised shopping programs. For many years, applicant
used a bug which included the phrase Home Shopping Club
along with the letters HSC in a stylized house design.
Today, applicant’s programming includes an on-air logo which
includes the phrase The Home Shopping Network, with “Home
Shopping” depicted in larger letters.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
17
Over the years, applicant has used many on-screen
graphics and set backdrops which include references to “Home
Shopping” or Home Shopping Club. Also, during each program,
applicant’s on-air hosts make regular reference to The Home
Shopping Network and, the on-air hosts often drop the word
“Network” and simply refer to applicant as “Home Shopping.”
Applicant regularly runs television commercials on a
variety of channels and has advertised in a broad array of
national consumer publications including Family Circle, Life
and People. In addition, applicant produces its own
consumer-oriented magazine, The Home Shopping Magazine, that
it distributes to more than one million customers each
month. Applicant also distributes advertisements by way of
cable bill inserts and periodically sends consumer-oriented
promotional material directly to its customers.
Over the years, applicant has joined with a number of
third-party product suppliers (such as Maxwell House and
Seagram’s) to promote specials for their products along with
savings on purchases from applicant. These promotional
efforts have included print advertisements, direct mailings,
television commercials and point-of-sale marketing material.
Applicant has offered consumers two credit cards that
prominently display Home Shopping Network on the face of the
card. One is a Visa affinity card that can be used anywhere
Visa is accepted. The other credit card is a private label
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
18
credit card that consumers can use to purchase products from
any of applicant’s retail operations, including its
televised shopping programs, mail-order catalogs and retail
stores.
According to applicant’s witnesses, its 3300
affiliates, i.e., broadcasters and cable operators, are also
regularly exposed to the phrase Home Shopping. Each month
applicant sends approximately 1200 advertising slicks to its
affiliates for placement in local newspapers or television
channel guides. Also, applicant runs advertisements in
trade publications such as Electronic Media, Cable World,
Broadcasting and Cable, and Video Age. Applicant attends
major trade shows and conferences at which it meets with
current and prospective affiliates. It also distributes
advertising and marketing materials, including promotional
videos.
Further, applicant has sponsored two public service
programs, namely “Scared Straight” and “Bring Them Home
America,” which were broadcast nationwide on applicant’s
channels. Lastly, applicant has used “Home Shopping” in
connection with a number of services ancillary to its main
televised shopping business. Examples of these include Home
Shopping Values (mail order services), Home Shopping Tours,
Home Shopping Travel Club, Home Shopping Club Auto Plan,
Home Shopping Outlet (retail stores), Home Shopping
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
19
Pharmacy, Home Shopping Club Legal Services, Home Shopping
Insurance, Home Shopping Game (television programming), and
Home Shopping Showcase (direct marketing).
Between 1991 and 1997 applicant expended millions of
dollars advertising and promoting its services. During the
same period, applicant’s gross sales exceeded $8 billion for
its television programming, including over $1 billion in the
first eleven months of 1997 alone.
Additional Testimony/Evidence
Applicant has also been mentioned in comic strips,
editorial cartoons and late night talk show routines. In a
story about applicant on the television program “60
Minutes,” applicant was referred to as simply “Home
Shopping.”
Further, applicant offered the testimony of George M.
Cocola, president of Cocola Broadcasting Co., one of
opposer’s affiliates. Mr. Cocola testified that he would
use the term “electronic retailing” to describe applicant’s
services and that to him the term “Home Shopping” means
applicant.
John Taylor, an expert in consumer advertising and
marketing, reviewed all of the material made of record by
the parties in this proceeding and testified that, in his
opinion, “Home Shopping” is a strong brand for applicant.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
20
Also, applicant offered the testimony of Mark Bozek, a
former officer of opposer. Mr. Bozek testified that opposer
consistently referred to its business as electronic
retailing and intentionally avoided using the term “home
shopping” because consumers associate the term with
applicant.
Printed Publications
Applicant has introduced several hundred photocopies of
articles and excerpts from the NEXIS database wherein
applicant is referred to as simply “Home Shopping”. The
following are representative examples:
HEADLINE: Home Shopping To Buy Station
BODY: Home Shopping Network said it agreed
to purchase a Houston UHF television station,
KTHT, from Four Star Broadcasting Inc. for
$15 million.
(The Wall Street Journal, September 11,
1986);
With us it’s a business decision. We’re not
using the operators and that’s the way it
is -- Home Shopping Chairman Roy Speer, in
explaining how more than 800 operators in
Virginia had to be laid off because of the
network’s game show flop.
(St. Petersburg Times, September 6, 1987);
HEADLINE: Home Shopping Ends Plan To Buy
Baltimore Thrift
BODY: Home Shopping Network, Inc. said it
decided to drop its previously announced plan
to buy a Baltimore thrift because of potential
legal problems.
Joseph A. Connolly, Home Shopping’s chief
financial officer, said the proposed $40
million acquisition of Baltimore Financial
Federal . . .
(The Wall Street Journal, September 30, 1987);
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
21
The GTE Corporation was awarded $100 million
in damages yesterday by a Florida jury that
found the company had been libeled by Home
Shopping Network.
. . . .
Home Shopping, which markets consumer products
on phone-in-television shows . . .
(The New York Times, August 3, 1989);
Home Shopping changes name of infomercial
channel: Home Shopping Network will change
the name of its new infomercial program
service from Infonet to Home Shopping Network
Entertainment by Nov. 1.
(Electronic Media, October 21, 1991);
Home Shopping co-founder cashes out: Lowell
W. “Bud” Paxson, co-founder of Home Shopping
Network Inc., is selling most of his interest
in the television giant. Paxson and a
partnership he controls sold 12.8 million
Home Shopping shares March 20 for $68.9
Million.
(Los Angles Daily News, April 9, 1992);
HEADLINE: Four Show Hosts Have Lost Their
Jobs At Home Shopping
BODY: Home Shopping Network Inc. sacked
three of its show hosts this week, the
television retailer confirmed Friday.
. . . .
Podhaisky said Roy M. Speer, Home Shopping’s
chairman and chief executive, once told a
meeting of show hosts they could be replaced
by trained chimpanzees.
(St. Petersburg Times, October 3, 1992);
HEADLINE: THE MEDIA BUSINESS: Liberty
Media In New Offer For Home Shopping Stock
BODY: The Liberty Media Corporation,
sensing an opportunity to make money while
bolstering its holdings in Home Shopping
Network, Inc., offered yesterday to buy
up to 17 percent of the outstanding shares
of the troubled television marketer at a
price below its earlier offer.
(The New York Times, April 20, 1993); and
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
22
HEADLINE: QVC, Home Shopping Talking Again
About Merger
BODY: QVC Network Inc. and Home Shopping
Network Inc. are talking again about joining
forces in a move that would consolidate the
$2-billion-a-year video retailing business
into a single powerhouse company.
(St. Petersburg Times, July 13, 1993).
Dictionary Evidence
Applicant has attached to its brief excerpts from the
following four dictionaries, none of which include an entry
for “home shopping”: Random House Webster’s Unabridged
Dictionary (2d. 1997); Random House Webster’s College
Dictionary (1997); Merriam Webster’s Collegiate Dictionary
(10th 1993); and The World Book Dictionary (1990).11
Marketing Study
In June 1996 applicant conducted one of its periodic
studies of customers. The primary purpose of the study was
to determine viewer preferences regarding television
shopping programs. The study sample was 1574 consumers.
Question 37(a) reads as follows:
Throughout this survey, we have used the term
Home Shopping Network. In the recent past,
other terms have been used. When you think of
us, what name do you normally use? (USE
RESPONSES TO PROMPT)
1 – Home Shopping Network
2 – Home Shopping Club
3 – Home Shopping
4 - HSN

11 Although matter submitted with a brief is generally considered
untimely, we exercise our discretion and take judicial notice of
the dictionary definitions.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
23
Approximately one out of four respondents answered “Home
Shopping.” This was the most popular response, followed by
Home Shopping Network and Home Shopping Club. Paul Guyardo,
applicant’s Executive Vice President for Marketing,
testified that applicant concluded from this study that its
brand equity lay in the phrase “Home Shopping.”
Applicant’s Survey
Lastly, applicant places great reliance on the results
of a consumer telephone survey commissioned by it for use in
this proceeding. The survey is titled “Does The Phrase
‘Home Shopping Network’ Have Meaning As A Service Mark Among
Cable Television Viewers And Do Cable Television Viewers Use
The Phrase ‘Home Shopping’ Within The Mark ‘Home Shopping
Network’ To Be Generic Or A Source Indicator?”. It was
designed by Jacob Jacoby Ph.D., Merchant Council Professor
of Consumer Behavior at New York University’s Stern School
of Business. Mr. Jacoby subcontracted with Princeton
Research & Consulting Center, Inc. (PRCC) to collect the
data. The sample for the survey was 617 respondents, aged
18 or older, who watch cable television.
Several versions of a main questionnaire, consisting of
twelve questions (with subparts), were constructed.
Although the questions were essentially the same on all
versions, the various versions differed in the order in
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
24
which certain questions were asked, the order in which
certain answer options were offered, and whether the
respondents were asked about Home Shopping Network or Call
and Buy Network (a fictitious television network).
Dr. Jacoby maintains that question 3a directly
addresses the question of whether cable television viewers
understand the phrase Home Shopping Network (and Home
Shopping) primarily as a source indicator or generic term.
As Question 3a, approximately half the survey respondents
(308) were asked:
What about “Home Shopping Network?”
As best you know, is “Home Shopping
Network” a name used by only one
company to identify its particular
broadcasting network, or is “Home
Shopping Network” a word combination
used by several different companies
to mean a network in general?”
1 SEVERAL DIFFERENT COMPANIES
2 ONE COMPANY
3 BOTH
4 NEITHER
5 SOMETHING ELSE
6 DON’T KNOW/FOR SURE
As a control to gauge “noise” (i.e., guessing and
related random errors), the other respondents (309) were
asked the same question regarding Call and Buy Network.
To provide context for interpreting these data, all 617
respondents were also asked the same question about two
terms that are generic, i.e., “television network” and
“cable network” and two names that are source indicators,
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
25
i.e., “National Broadcasting Company” and “Fox Broadcasting
Company”. The relevant data, which appears in Table 1 of
the survey, is set forth below:
Table 1: Primary Meaning of the Phrase Tested12
According to Mr. Jacoby, “it is clear [from the above
data] that the primary usage of the phrase ‘Home Shopping
Network’ is as a source indicator (55.2%), not as a
descriptive term representing a class (24.7%).” In
addition, he concludes that “it is likely that the word
‘network,’ when appearing as part of the phrase ‘Home
Shopping Network’ is not responsible for respondents
considering that term to be a source-designator. Instead,

12 To simplify presentation, Mr. Jacoby did not show the percent
responding either “don’t know” or “not sure.” In almost all
cases, these can be deduced precisely by adding the “One Company”
and “Several Different Companies” percentages provided for that
particular phrase, and then subtracting this total from 100%.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
26
based upon the data, it is reasonable to conclude that the
two-word ‘Home Shopping’ component is what is primarily
responsible for the entire phrase ‘Home Shopping Network’
being considered a source-designator.” (Survey Report pp.
21-22).
Further, Dr. Jacoby points to Questions 6b and 7b as
addressing the primary meaning of “Home Shopping”. These
questions were asked of more narrowly defined universes.
Question 6b, which was asked of 188 respondents who had
watched a televised shopping channel over the past three
months or so, reads as follows:
As best you can remember, what is the name or
names of the channels you have watched? PROBE
TWICE WITH: Any others? PAYING CAREFUL
ATTENTION TO THE EXACT WORDS USED BY THE
RESPONDENT, CIRCLE ALL MENTIONED BELOW.
1 HOME SHOPPING
2 HOME SHOPPING CHANNEL
3 HOME SHOPPING CLUB
4 HOME SHOPPING NETWORK
5 HSN
6 QVC
7 QVC CHANNEL
8 QVC NETWORK
9 VALUE VISION
X VALUE VISION CHANNEL
Y VALUE VISION NETWORK
0 OTHER (SPECIFY _________________________)
1 OTHER (SPECIFY _________________________)
2 DON’T KNOW/DON’T RECALL
Of the 188 respondents, 47.1% spontaneously responded “Home
Shopping.”
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
27
Question 7b, which was asked of 74 respondents who had
made a purchase from a television shopping channel within
the past year or so, reads as follows:
As best you can remember, what is the name or
names of the channels from which you bought
something? PROBE TWICE WITH: Any others?
PAYING CAREFUL ATTENTION TO THE EXACT WORDS
USED BY THE RESPONDENT. CIRCLE ALL MENTIONED
BELOW.
1 HOME SHOPPING
2 HOME SHOPPING CHANNEL
3 HOME SHOPPING CLUB
4 HOME SHOPPING NETWORK
5 HSN
6 QVC
7 QVC CHANNEL
8 QVC NETWORK
9 VALUE VISION
X VALUE VISION CHANNEL
Y VALUE VISION NETWORK
0 OTHER (SPECIFY _______________________)
1 OTHER (SPECIFY _______________________)
2 DON’T KNOW/ DON’T RECALL
Of the 74 respondents, 38.9% spontaneously responded
“Home Shopping.”
Decision
A term is generic if it names the class of goods or
services to which it is applied. See H. Marvin Ginn Corp.
v. International Association of Fire Chiefs, Inc., 782 F.2d
987, 228 USPQ 528 (Fed. Cir. 1986); and In re Northland
Aluminum Products, Inc., 777 F.2d 1556, 227 USPQQ 961 (Fed.
Cir. 1985). The test for determining whether a term is
generic is its primary significance to the relevant public,
that is, whether the term is used or understood by
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
28
purchasers or potential purchasers of the goods or services
at issue, primarily to refer to the class of such goods or
services. See Magic Wand Inc. v RDB Inc., 940 F.2d 638, 19
USPQ2d 1551 (Fed. Cir. 1991); In re Merrill Lynch, Pierce,
Fenner, and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed
Cir. 1987); H. Marvin Ginn Corp. v. International
Association of Fire Chiefs, Inc., supra. Evidence of the
relevant public’s understanding of a term may be obtained
from any competent source, including direct testimony of
consumers, consumer surveys, newspapers, magazines,
dictionaries, catalogs, and other publications. See In re
Merrill Lynch, Pierce, Fenner and Smith, Inc., supra; and In
re Northland Aluminum Products, Inc, supra. Our primary
reviewing court has stated that a party charging genericness
must prove its claim by a preponderance of the evidence.
Magic Wand Inc., at 1554.
The services in applicant’s application fall into four
general categories: entertainment services in the nature of
an ongoing television program, television broadcasting
services, licensing services and credit card services.
Applicant’s entertainment services fall within the narrower
category of televised shopping programs. After careful
review of the record herein, we find that the term “home
shopping” would be understood by the relevant public as
referring to this category of services.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
29
Opposer has submitted evidence showing numerous uses of
the term “home shopping” in a generic fashion for televised
shopping programs. These uses appear in a variety of
publications, opposer’s registrations, third-party
applications and registrations, court decisions, and
governmental regulations.
While it is true that some of the NEXIS excerpts
submitted by opposer are from foreign publications and wire
services, the overwhelming majority are from trade and
nationally circulated consumer publications. Also, even
though none of the articles pre-date applicant’s first use
of “home shopping,” this is not surprising since applicant
was the pioneer in the field of televised shopping programs.
Also, contrary to applicant’s argument, the recitation
of services in the third-party applications and
registrations are probative of how the term “home shopping”
is understood by viewers of televised shopping programs. We
note, in this regard, Section 804.01 of the Trademark Manual
of Examining Procedure (TMEP) which states, in relevant
part: “The identification of goods or services should set
forth common names, using terminology which is generally
understood.” (emphasis added).
Further, the dictionary definitions made of record by
opposer are probative of consumer understanding. While
applicant argues that, as reflected in the dictionary
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
30
excerpts it submitted, “home shopping” does not appear in
“main stream” dictionaries, The Oxford Encyclopedic English
Dictionary is a well recognized reference source and is
generally available in the United States. Also, The Newbury
House Dictionary of American English, which is designed for
persons new to American English, contains contemporary, up-
to-date vocabulary.
In finding that the term “home shopping” is incapable
of identifying applicant’s televised shopping programs and
distinguishing them from like services of others, we have
considered, of course, all the evidence touching on the
public perception of the term “home shopping,” including the
evidence of acquired distinctiveness. In re Seats, Inc.,
757 F.2d 274, 225 USPQ 364 (Fed. Cir. 1985). It may well be
that applicant, by its long and continuous use of “Home
Shopping” alone and as part of other phrases, has acquired a
de facto secondary meaning in the term in the sense that
some or even many people have come to associate “Home
Shopping” with applicant. Nonetheless, if the evidence as a
whole establishes that the term is primarily perceived as a
generic term, the recognition of the term as a service mark
by certain consumers must be deemed no more than a de facto
secondary meaning that, in legal effect, can neither confer
nor maintain service mark rights in such term. See J. T.
McCarthy, McCarthy on Trademarks and Unfair Competition,
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
31
Section 12:47 (4th ed. 1999). In any event, we do not
believe applicant’s evidence is sufficient to show that the
average purchaser views “Home Shopping” as a service mark
for applicant’s televised shopping programs.
We recognize that applicant’s use dates back to 1982.
Applicant’s sales figures would suggest that applicant has
enjoyed a degree of success and that the designation “Home
Shopping,” whether alone or as part of other phrases, has
been exposed to millions of cable television viewers.
Nonetheless, this evidence demonstrates only the popularity
of applicant’s televised shopping programs, not that the
relevant consumers of such services have come to view “Home
Shopping” as applicant’s source-identifying service mark.
Similarly, the evidence of publicity for applicant’s
services does not, in and of itself, lead us to infer that
the publicity has been effective in creating
distinctiveness.
There are problems with both the marketing study and
consumer survey submitted by applicant in support of its
claim of acquired distinctiveness. With respect to the
marketing study, opposer relies, in particular, on the fact
that many of applicant’s customers selected “Home Shopping”
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
32
in response to Question 37a.13 However, a scrutiny of the
marketing study shows that in several questions prior to
Question No. 37a, the interviewer had referred to applicant
as simply “Home Shopping.”14 Thus, it is not surprising
that in response to Question No. 37a many of the respondents
selected “Home Shopping” as the way they too would refer to
applicant.
As to the consumer survey, we note that Mr. Jacoby has
acknowledged that the survey was designed primarily to
address the issue of whether Home Shopping Network had
acquired secondary meaning among cable television viewers.

13 As indicated infra, Question 37a reads:
Throughout this study, we have used the term
Home Shopping Network. In the recent past, other
terms have been used. When you think of us, what
name do you normally use. (USE RESPONSES TO
PROMPT).
1- Home Shopping Network
2- Home Shopping Club
3- Home Shopping
4- HSN
14For example, Question 34 reads: “When did you make your last
purchase from Home Shopping?”
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
33
(Jacoby Deposition, pp. 191, 194).15 The issue of whether
“home shopping” is generic of applicant’s services was
secondary. Also, Dr. Jacoby admitted that he employed a
methodology that, to his knowledge, had never been used
before. (Jacoby deposition, pp. 215-16). We note, in this
regard, that the survey did not follow any of the
established methods for determining the genericness of a
term. See e.g., King-Seeley Thermos Co. v. Aladdin
Industries, Inc., 312 F.2d 577, 138 USPQ 349 (2d Cir. 1963)
[“Thermos” survey]. Moreover, several of the questions,
because of their structure and length, were ambiguous and
confusing.16 Also, it must be kept in mind that this was a
telephone survey and the respondents did not have the

15 As indicated infra, in two of the oppositions, opposer alleged
that HOME SHOPPING NETWORK had not become distinctive of
applicant’s services. Presumably, this is the reason the survey
was designed in this manner.
16 For example, the introductory statement reads as follows:
All of my questions have to do with what you think
about certain words and combinations of words. I’m
going to mention several words and word combinations,
one at a time. Some of these will be a name used
by only one company to identify itself. Others will
be words used by a number of different companies to
describe something in general. I’d like to know
what each of these means to you. (emphasis in
original.)
Also, Question 1b reads:
In your experience, which way is “television
network” used most of the time? Is it more often
a name used by only one company to identify its
particular broadcasting network, or is it more
often a word combination used by several
different companies to mean a broadcasting
network in general?
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
34
benefit of reading the questions so as to better understand
what was being asked.
With respect to the opinion evidence that “Home
Shopping” is a strong brand for applicant, as the ultimate
trier of fact, we must determine the question of whether
“home shopping” is a generic term for applicant’s televised
shopping programs based on all of the evidence of record.
We recognize that “home shopping” is not the only
generic name for the category. Applicant has made much of
the fact that opposer, for the most part, uses the term
“electronic retailing,” rather than “home shopping,” when
referring to its services. According to applicant, this is
recognition by opposer that consumers associate “Home
Shopping” with applicant. However, we find plausible
opposer’s explanation that it prefers to use a more upscale
term to describe its services. More importantly, a product
or service may have more than one generic name. See In re
National Shooting Sports Foundation, Inc., 219 USPQ 1018,
1020 (TTAB 1983), citing In re Sun Oil Company, 476 F.2d
401, 165 USPQ 718, 719 (CCPA 1970)(J. Rich, concurring). As
Judge Rich instructed in his concurring opinion, “[a]ll of
the generic names for a product belong in the public
domain.” Id. (emphasis in original) See McCarthy on
Trademarks and Unfair Competition, supra at Section 12:10).
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
35
In sum, our review of all the evidence herein leads us
to conclude that “home shopping” is indeed generic for
televised shopping programs.
We turn then to applicant’s television broadcasting
services which feature televised shopping programs. We
find, based on the evidence outlined above, that the
relevant consumers of such services would understand the
term “home shopping” to primarily refer to a category of
television broadcasting services. See In re Conus
Communications Co., 23 USPQ2d 1717 (TTAB 1992) [“All News
Channel” is generic for a type of channel and broadcasting
and production services of which the entire subject matter
is news].
For the sake of completeness, we turn to the issue of
mere descriptiveness with respect to the term “home
shopping” for entertainment services in the nature of an
ongoing television program whereby viewers are informed of
various goods that can be purchased by the viewers and
television broadcasting services. We have no doubt that
“home shopping” is merely descriptive as used in connection
with each of these services. It immediately describes a
significant feature of the services, that is, that the
subject matter of the television programs and television
broadcasting services is “home shopping.” Also, for the
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
36
reasons discussed above, applicant’s evidence of acquired
distinctiveness is insufficient.
On the other hand, we find that the evidence does not
support a finding that “home shopping” names a category of
licensing services or credit card services or that it is
merely descriptive of such services. Absent from this
record is any evidence that the term is used or would be
understood to primarily refer to licensing services or
credit card services. Also, the record is devoid of any
descriptive uses of the term “home shopping” for licensing
services or credit card services. Equally important,
opposer has made no argument in its brief as to why the term
“home shopping” is generic or merely descriptive for such
services.
Opposition Nos. 102,173; 103,135; 104,078; 104,173; 104,181;
104,193; and 104,323
37
Decision: Opposition Nos. 102,173; 103,135; 104,173;
and 104,193; are sustained. Opposition Nos. 104,078;
104,181; and 104,323 are dismissed.
P. T. Hairston
C. E. Walters
B. A. Chapman
Administrative Trademark Judges
Trademark Trial and Appeal Board