Qwest Broadcastin g LLC

Trademark Trial and Appeal Board

Jun 24, 1998

No. 75064426 (T.T.A.B. Jun. 24, 1998)

Paper No. 10
GDH/gdh
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Qwest Broadcasting LLC
________
Serial No. 75/064,426
_______
Michael D. Hobbs, Jr. of Troutman Sanders LLP for applicant.
Charles T.J. Weigell, Trademark Examining Attorney, Law Office
109 (Deborah S. Cohn, Managing Attorney).
_______
Before Simms, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Qwest Broadcasting LLC has filed an application to
register the term "NON-STOP ENTERTAINMENT" as a service mark for
"television programming and production" services.1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis
that, when used in connection with applicant’s services, the term
"NON-STOP ENTERTAINMENT" is merely descriptive of them.

1 Ser. No. 75/064,426, filed on February 27, 1996, which alleges dates
of first use of April 15, 1995.
Ser. No. 75/064,426
2
Applicant has appealed. Briefs have been filed,2 but
an oral hearing was not requested. We affirm the refusal to
register.
It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning of
Section 2(e)(1) of the Trademark Act, if it immediately describes
an ingredient, quality, characteristic or feature thereof or if
it directly conveys information regarding the nature, function,
purpose or use of the goods or services. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). It is not necessary that a term describe all of the
properties or functions of the goods or services in order for it
to be considered to be merely descriptive thereof; rather, it is
sufficient if the term describes a significant attribute or idea
about them. Moreover, whether a term is merely descriptive is
determined not in the abstract but in relation to the goods or
services for which registration is sought, the context in which
it is being used on or in connection with those goods or services
and the possible significance that the term would have to the
average purchaser of the goods or services because of the manner
of its use. See In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). Consequently, "[w]hether consumers could guess what
the product [or service] is from consideration of the mark alone

2 With respect to applicant’s practice of citing opinions of the Board
which have been designated as not citable as precedent, we note that
except for certain situations not applicable to this appeal, such
practice is improper. See General Mills Inc. v. Health Valley Foods,
24 USPQ2d 1270, 1275 (TTAB 1992) at n. 9. We have accordingly given
Ser. No. 75/064,426
3
is not the test." In re American Greetings Corp., 226 USPQ 365,
366 (TTAB 1985).
Applicant argues that inasmuch as "the mark NON-STOP
ENTERTAINMENT does not immediately identify with particularity
any nature, feature or characteristics of television programming
or production services," such term is suggestive rather than
merely descriptive. In particular, applicant contends that
because the terms "’entertainment’ and ’non-stop’ are vague,
general words that relay little, if any, substantive information
to the public," "[a] consumer must exercise ’mature thought’ or
’follow a multi-stage reasoning process’ to make a connection
between the Mark and the services identified by the Mark--
television programming and production services."3 Since "the

no consideration to applicant’s citation to cases designated as not
citable as precedent of the Board.
3 Applicant, in this regard, asserts that (emphasis in original):
Even when applied to television, which [the record shows]
... is rarely the case, the Mark is vague and encompasses a
virtually infinite variety of format and content options.
What exactly are "non-stop entertainment" television
programming services? Do the words "non-stop" describe an
all-sports channel, an all news channel, a channel devoted
to news and sports, a movie channel, a public access channel
or a channel devoted to government affairs? All of these
formats are "entertaining" to different persons possessing
different tastes.
Do the words "non-stop" refer to the fact that it is
commercial-free, that it broadcasts 24 hours a day, or that
the programming is commercial free? Do the words "non-stop
entertainment" describe the programming, the content, both
or neither? Further, what are "non-stop entertainment"
television production services? Do the production crew and
actors work 24 hours a day, 7 days a week to entertain the
audience or to create and produce programming? Is one
entire show entertaining from start to finish? Or, as in
the instant case, do the words have no specific meaning at
all and are generally intended to provide a memorable and
distinctive designation for identifying Applicant’s
services[?]
Ser. No. 75/064,426
4
mental leap between the Mark and the service’s [sic] attributes
are neither automatic nor instantaneous, applicant consequently
insists that the term "NON-STOP ENTERTAINMENT" is only suggestive
rather than merely descriptive of its services.
Applicant also maintains that the evidence submitted by
the Examining Attorney does not support a finding that the term
"NON-STOP ENTERTAINMENT" is merely descriptive of television
programming and production services. Specifically, applicant
argues that "the vast majority" of the excerpts of articles
obtained by the Examining Attorney from his searches of the
"NEXIS" computerized database, which were retrieved from the
"ALLNWS" file of the "NEWS" library using the queries "NON STOP
ENTERTAINMENT W/10 TELEVISION" and "NON-STOP ENTERTAINMENT AND
TELEVISION," relate not to "television production and programming
services, or even [to] programs or activities that aired on
television, but rather to unrelated goods or services."
Moreover, applicant urges that because the Examining Attorney was
able to locate only three articles "that have appeared in the
United States since 1982 [and] that have used the Applicant’s
Mark and also mentioned television services,"4 the Examining

4 While several articles from English language publications in Canada
and Great Britain arguably demonstrate the merely descriptive
significance of the term "NON-STOP ENTERTAINMENT" for television
programming services (e.g., an April 30, 1996 story in the London
Daily Mirror which is headlined: "QUACKING GOOD VIEWING; CABLE ’96
TURN ON TO NON-STOP ENTERTAINMENT FROM MASTERS OF FAMILY FUN; FOCUS ON
THE DISNEY CHANNEL" and a February 2, 1996 comment in the British
daily racing paper Sporting News which asks: "can greyhound racing
... expect to win over newcomers - used to non-stop entertainment at
cinemas, theatres, football and on television etc. - by offering just
30 seconds of action every 15 minutes?"), applicant correctly points
out that articles from foreign publications generally are considered
Ser. No. 75/064,426
5
Attorney "has not met the burden of proving that the Mark is
merely descriptive," citing In re Stroh Brewery Co., 34 USPQ2d
1796, 1797 (TTAB 1994).5
The Examining Attorney, on the other hand, contends
that the evidence which he has made of record and the manner of

to be irrelevant and immaterial. As the Board stated in In re Men’s
Int’l Professional Tennis Council, 1 USPQ2d 1917, 1919-20 (TTAB 1986),
"we cannot--absent other evidence--, infer that these foreign uses
have had any material impact on the perceptions of the relevant public
in this country." Likewise, the Board indicated in In re Bel Paese
Sales Co., 1 USPQ2d 1233, 1235 (TTAB 1986), that articles from a
British newspaper were "of no probative value as to public perception
in the United States since they are foreign publications and there is
no evidence as to the extent of circulation of those publications in
the United States, if any." Consequently, since the record in this
case contains no evidence showing that the foreign publications from
which certain articles were excerpted have at least a limited
circulation in the United States, we will not further consider such
excerpts. Similarly, with respect to the Examining Attorney’s
reliance upon a number of excerpts from news-wire reports, applicant
is again correct that articles from proprietary news services are of
little, if any, probative value with respect to descriptiveness
issues. This is because, unlike newspaper, magazine and journal
articles published in the United States, wire-service stories are not
presumed to have circulated among the general public so as to have had
any influence on purchasers’ attitudes towards the particular term or
designation in question. See, e.g., In re Appetito Provisions Co.
Inc., 3 USPQ2d 1553, 1555 (TTAB 1987) at n. 6 and In re Men’s Int’l
Professional Tennis Council, supra at 1918 n. 5. Accordingly, the
wire-service excerpts of record also will not be given any further
consideration.
5 The Board, in such case, found that the term "VIRGIN" had not been
shown to be merely descriptive of non-alcoholic malt beverages,
reasoning that (case citations omitted):
Given the fact that (1) non-alcoholic malt beverages is a
large and old product category, and that (2) the NEXIS data
base is extremely extensive, we believe that if the term
"virgin" was descriptive of non-alcoholic malt beverages, it
would have been used in relationship to such beverages at
least occasionally. .... The fact that it has not raises
strong doubts in our minds as to whether, as applied to non-
alcoholic malt beverages, the term "virgin" is descriptive.
When doubts exist as to whether a term is descriptive as
applied to the goods or services for which registration is
sought, it is the practice of this Board to resolve doubts
in favor of the applicant and pass the mark to publication
with the knowledge that a competitor of applicant can come
forth and initiate an opposition proceeding in which a more
complete record can be established. ....
Ser. No. 75/064,426
6
use disclosed by applicant’s specimens of use establish that the
term "NON-STOP ENTERTAINMENT" is merely descriptive of a feature
or characteristic of applicant’s television programming and
production services. In this regard, the Examining Attorney
notes that Webster’s II New Riverside University Dictionary
(1994) defines the word "nonstop" as an adjective meaning, in
pertinent part, "2. Unceasing : unremitting "
Additionally, as previously noted, the Examining Attorney relies
upon excerpts from various articles, of which the following are
sample are considered to be particularly relevant and
representative, which he located through searches of the "NEXIS"
computerized database (emphasis added):
The Independence Blue Cross Children’s
Special Sunday Series promises free and
different non-stop entertainment and
interactive workshops .... -- Allentown,
Pennsylvania Morning Call, July 7, 1996, at
F4;
Festa Italiana is a blend of special
attractions, food, virtually non-stop
entertainment, children’s activities, Italian
fire-works, religious observances and
generous doses of nostalgia. -- Italian
Voice, June 20, 1996, at 6 (article
headlined: "Milwaukee’s Italian Community
Center Readies 19th Annual Festa Italiana");
The Florida Lottery Showvan has been
reserved to provide a full, covered stage for
the "non-stop entertainment" schedule that
will again feature a mix of country, jazz,
and gospel music .... - Lakeland, Florida
Ledger, October 11, 1995, at 3F;
The "Parade of Stars" [event] remains
television’s only national fund-raising event
which benefits education. .... On hand
during the seven hours of non-stop
entertainment are perennial favorites Ray
Ser. No. 75/064,426
7
Charles, Patti LaBelle, Luther Vandross and
Anita Baker. -- Jet, January 9, 1995, at 59;
Last year’s second half was the usual
non-stop entertainment fest we’ve come to
expect from the Super Bowl. -- Arizona
Republic, January 28, 1994, at C2 (article
about television sports);
HILLARD, Correspondent: On a Las Vegas
stage, Jerry Lewis rehearses for his annual
Labor Day telethon for muscular dystrophy.
The 21 ½ hour fund raiser promises non-stop
entertainment .... -- CNN News, September 4,
1992 (transcript of broadcast concerning a
report on "a television event that's becoming
an enduring Labor Day tradition");
For the adults, non-stop entertainment
on three outdoor stages between noon and 7
p.m. will include the Fabulous Thunderbirds,
the Edgar Winters Blues .... -- San Diego
Union-Tribune, April 24, 1991, at B-3;
Families can bring their own picnic
baskets ... and eat on the grass while
enjoying the non-stop entertainment.
Rounding out the entertainment will be 70
bands, performing on five stages throughout
the park. -- Los Angeles Times, April 4,
1987, § View, at 8, col. 3 (article
headlined: "FAMILY SPOTS: 2-DAY COUNTRY
JAMBOREE AT HANSEN DAM");
Through its actual birth date was
September 5, 1955, Channel 11, now featuring
Chicago's most literate television, will
celebrate on the night of Nov. 9, turning the
main floor of the Field Museum of Natural
History into a huge television studio with a
glittery party and non-stop entertainment. --
Chicago Tribune, November 3, 1985, § Tempo,
at 1; and
[I]t's reassuring that not everyone in
Hollywood has forgotten one of the functions
of movies -- and it was most fitting, for
this movie is non-stop entertainment. -- San
Diego Union-Tribune, March 30, 1984, at C-1.
Ser. No. 75/064,426
8
Noting, furthermore, that applicant originally
identified its television programming and production services as
"entertainment services, namely, television programs," the
Examining Attorney argues that the above evidence "attests to the
widespread and continuous usage of [the term] ’non-stop
entertainment’ to favorably describe an entertainment format
which features [an] unremitting or continuous entertainment
presentation." The merely descriptive significance of such term,
the Examining Attorney observes, is readily apparent from the
context of its use in the video advertisements initially filed by
applicant as specimens. As the Examining Attorney points out,
"[t]he video ads feature music and hip-hop or rap style vocals
over a montage of clips from famous movies and television shows,
[which are] presumably examples of those programs comprising
applicant’s television services," with the accompanying vocal
overdubs comprising a jingle which states (emphasis added):6
Non stop ...
Non stop ...
Non stop entertainment
The hottest stars and the biggest pics
We got ’em all, FLIX 36
We’re entertainment so you can’t lose
Cause here no news is good news
Additional specimens furnished by applicant, consisting of a
listing of its "1996 Evening Fall Schedule & Premiere Dates,"
reflect that from four o’clock in the afternoon until midnight,

6 The Examining Attorney also accurately observes that, with respect to
"the television graphics accompanying the music, apparently ’no news’
is intended to inform viewers that applicant’s television services
forego any news programming in favor of more ’entertaining’
programming."
Ser. No. 75/064,426
9
applicant has scheduled a variety of situation comedies, dramatic
series and other programs, but no news or sports presentations.
The Examining Attorney, in light of the above, asserts
that (footnotes omitted):
There is no doubt, despite the amendment to
the [recitation of] services ... to delete
the term "entertainment" therefrom, that the
applicant’s services comprise a continuous
schedule of entertaining programming for
television. This is aptly demonstrated by
viewing the specimens of record which were
first submitted with the application. ....
These ad spots give a clear indication of the
context within which the mark is used ....
....
[T]he proposed mark [thus] appears in a
promotional ad featuring informational,
albeit colloquial, wording regarding the
applicant’s programming format. The common
meanings of the constituent terms in the
applicant’s mark as presented in this context
provide persuasive evidence of the merely
descriptive meaning and impression of NON-
STOP ENTERTAINMENT as applied to applicant’s
services, touting the type and style of
programming offered by applicant. The fast
pace of excerpts from movies and television
shows, featuring clips of famous celebrities
..., only reinforces the entertainment format
of the applicant’s services presented at a
pace intended to seem unremitting or "non-
stop".
The descriptive nature of the
applicant’s use and promotion of the mark in
an entertainment context is further supported
by [excerpts of] articles from the NEXIS
database. The NEXIS evidence illustrates
widespread usage of "non-stop entertainment"
as a unitary phrase to describe entertainment
services of widely varying styles and
formats, including televised programs, to
convey their continuous or unremitting
presentation style. The evidence
demonstrates that "non-stop entertainment" is
a commonly employed phrase for describing
entertainment services and is readily
Ser. No. 75/064,426
10
understood by the relevant ... public as such
and identifies a desirable feature of an
entertaining program, whether it be live or
projected from celluloid on a large theater
screen or projected by a cathode ray to a
small ionized one.
With respect to applicant’s criticism that only a few
of the "NEXIS" excerpts relate to the medium of television, the
Examining Attorney insists that "the evidence demonstrates that
"non-stop entertainment" is a general term potentially applicable
to describe exhibitions in all types of media including live
sporting events, variety shows, festivals, telethons, music and
music hall reviews." Therefore, according to the Examining
Attorney, "applicant’s services are squarely within that broad
category of entertaining activities to which the wording ’non-
stop entertainment’ applies" since "[t]he common denominator of
all of these is their intent to provide entertainment services to
viewers and patrons."
The Examining Attorney also maintains that a term does
not lose its merely descriptive significance just because it may
be general in its scope. Citing In re Analog Devices Inc., 6
USPQ2d 1808, 1810 (TTAB 1988), aff’d in op. not for pub., 871
F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989), in which the Board
stated that, while the words "ANALOG DEVICES" for a variety of
specifically designated electronic components, "may be broad and
even nebulous terms, nevertheless, these terms may not be
exclusively appropriated but must be left for all to use in their
ordinary generic sense," the Examining Attorney similarly urges
that, "[w]hile the issue here is not genericness of the mark,
Ser. No. 75/064,426
11
nonetheless, the exhibited general usage and applicability of
’non-stop entertainment’ to a variety of entertainment fields and
media does not dissipate its demonstrated and commonly perceived
descriptive meaning when related to the more specific subcategory
of entertainment services named by applicant."
Finally, as to applicant’s criticism that the Examining
Attorney’s "NEXIS" evidence reveals only a very limited number of
arguably pertinent excerpts, the Examining Attorney counters that
the excerpted articles "resulted from a restricted search of
’non-stop entertainment’" and that the ones made of record were
simply "intended to be a representative sampling of articles
demonstrating the usage" of such term. "[E]ach article," the
Examining Attorney insists, "without exception demonstrates use
of the wording comprising applicant’s mark in a context which
merely describes an entertainment service" and thus shows that
"’non-stop entertainment’ is known and understood by the relevant
public in the United States as descriptive of an attributed
feature or quality of entertainment sources."
It is settled, of course, that registration must be
denied if a term is merely descriptive of any of the goods or
services for which registration thereof is sought. See, e.g., In
re Quick-Print Copy Shop, Inc., 616 F.2d 523, 205 USPQ 505, 507
(CCPA 1980). The dispositive question herein is therefore
whether the term "NON-STOP ENTERTAINMENT" is merely descriptive
of any of applicant’s services.
Upon consideration of the pertinent evidence and
arguments, it is our view that, when applied to applicant’s
Ser. No. 75/064,426
12
"television programming" services, the term "NON-STOP
ENTERTAINMENT" immediately describes, without conjecture or
speculation, a significant characteristic or feature of such
services, namely, that applicant presents television programs
which provide non-stop entertainment. It is simply not necessary
that a term describe in minute detail every aspect of the
services in order for it to be merely descriptive. Instead, it
is sufficient if the term, as here, describes one significant
attribute of the services, such as a principal characteristic or
feature thereof. See, e.g., In re Venture Lending Associates,
226 USPQ 285, 286 (TTAB 1985); In re Aid Laboratories, Inc., 223
USPQ 357, 358-59 (TTAB 1984); In re H.U.D.D.L.E., 216 USPQ 358,
359 (TTAB 1982); and In re MBAssociates, 180 USPQ 338, 339 (TTAB
1973).
Plainly, to the audience for applicant’s television
programming services, which would obviously include members of
the general public that desire for their viewing pleasure a
source of continuous or unremitting amusement or diversion, there
is nothing in the term "NON-STOP ENTERTAINMENT" which is vague,
ambiguous or otherwise indefinite, nor would any imagination,
cogitation, mental processing or gathering of further information
be necessary in order for those persons to perceive precisely the
merely descriptive significance of such term as it relates to a
significant characteristic or feature of applicant’s services,
namely, a television programming format which delivers non-stop
entertainment. Such term, as is made sufficiently clear by the
dictionary definition of the word "nonstop," the relevant "NEXIS"
Ser. No. 75/064,426
13
excerpts of the term’s use in television and other entertainment
presentations, and the context in which the term is employed in
applicant’s advertising and its scheduled list of shows, directly
and unequivocally describes the basic format, content or subject
matter of applicant’s television programming services.
Furthermore, contrary to applicant’s contentions, the
term "NON-STOP ENTERTAINMENT" has been shown to possess the
requisite degree of particularity when used in connection with
applicant’s television programming services. As the Examining
Attorney persuasively observes:
The [relevant] evidence here presented shows
common usage of "non-stop entertainment" to
describe entertainment services in sources
directed to the general public, composed
largely of individuals likely to gain
entertainment value from television watching.
In no instance is "non-stop entertainment"
accompanied by any further elaboration or
explanation of its meaning, strongly implying
[that] this meaning is directly grasped ...
with no further required imagination, thought
or perception. Moreover, the evidence shows
"non-stop entertainment" is employed by a
multiplicity of sources, each in a context
directly describing attributes of the
featured entertainment subject or event.
NON-STOP ENTERTAINMENT, therefore, has a
merely descriptive significance readily
grasped by those encountering applicant’s
mark[,] who would not attribute its use to
one exclusive and/or particular commercial
source ....
Presenting, as applicant does, an unceasing or continuous variety
of situation comedies, action/adventure dramas and recent motion
pictures plainly constitutes a programming style or format which
provides the television viewer with non-stop entertainment. The
fact that the term "NON-STOP ENTERTAINMENT," when used in
Ser. No. 75/064,426
14
connection with television programming services, is nevertheless
a broad or encompassing designation does not mean that the term
does not merely describe, with sufficient particularity, the
programming services provided by applicant, especially since such
services include a wide range of entertaining shows. Case law,
as pointed out by the Examining Attorney, has in fact held broad
or inclusive designations to be descriptive of a specific service
or product covered thereby. See, e.g., In re Energy Products of
Idaho, 13 USPQ2d 2049, 2052 (TTAB 1989) [phrase "THE WASTE-TO-
ENERGY COMPANY" held merely descriptive of engineering consulting
services in developing, designing, manufacturing, installing,
starting up and operating low pollution fluid bed equipment],
citing In re Analog Devices Inc., supra [term "ANALOG DEVICES"
found descriptive of certain named devices having analog
capabilities]; and In re National Patent Development Corp., 1
USPQ2d 1921, 1922 (TTAB 1986) [term "FIRST AID" found descriptive
of various first aid items, including adhesive tape, gauze pads,
sterile absorbent cotton and bandages].
In addition, while the sample of excerpts discovered by
the Examining Attorney during his "NEXIS" searches reveals only
three instances which plainly demonstrate third-party use of the
term "NON-STOP ENTERTAINMENT" in connection with the field of
television programming, such is simply not fatal to the Examining
Attorney’s position since, even if applicant were the sole entity
to be using such term, that fact would not alter the term’s
merely descriptive significance and bestow service mark rights
therein. See, e.g., In re Mark A. Gould, M.D., 173 USPQ 243, 245
Ser. No. 75/064,426
15
(TTAB 1972) and cases cited therein. The fact that only a
limited number of third-party usages have been shown with respect
to television programming services is thus not dispositive where,
as here, the term unequivocally projects a merely descriptive
connotation. See In re MBAssociates, 180 USPQ 338, 339 (TTAB
1973). In any event, there is nothing which suggests that a
television programming format in which only sitcoms, dramas
and/or movies--with no news, sporting events and/or other
interruptions--are presented as the featured entertainment is
such a long-standing and/or well established broadcasting mode
that one would expect the "NEXIS" database to contain a large
number of, rather than just a few, references to the use of "non-
stop entertainment" in connection with television programming
services.
Accordingly, because the term "NON-STOP ENTERTAINMENT"
conveys forthwith a significant characteristic or feature of
applicant’s television programming services, namely, that the
content or format thereof provides the viewer with non-stop
entertainment, such term is merely descriptive of applicant’s
services within the meaning of the statute.
Decision: The refusal under Section 2(e)(1) is
affirmed.
R. L. Simms
G. D. Hohein
Ser. No. 75/064,426
16
P. T. Hairston
Administrative Trademark Judges,
Trademark Trial and Appeal Board