87574499 (T.T.A.B. Feb. 5, 2020)

Sorin Nica

Trademark Trial and Appeal BoardFeb 5, 2020

87574499 (T.T.A.B. Feb. 5, 2020)

Mailed: February 5, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Sorin Nica _____ Application Serial No. 87574499 _____ Javier Gómez of Remarkable.Legal for Sorin Nica. Melissa S. Winter, Trademark Examining Attorney, Law Office 122, John Lincoski, Managing Attorney. _____ Before Bergsman, Shaw and English, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Sorin Nica (Applicant) seeks registration on the Supplemental Register of the mark PHOTO HISTORIA, in standard character form, for “on-line journals, namely, blogs featuring historical photographs and connected historical information,” in Class 41.1 Applicant disclaims the exclusive right to use the word “Photo.” “The English 1 Serial No. 87574499, filed August 18, 2017, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the mark in commerce. On July 10, 2018, Applicant filed an Amendment to Allege Use claiming March 2, 2013 as his dates of first use of his mark anywhere and in commerce. On December 19, 2018, Applicant filed an amendment to seek registration on the Supplemental Register. This Opinion Is Not a Precedent of the TTAB Serial No. 87574499 - 2 - translation of ‘Historia’ in the mark is “History.” We reproduce below Applicant’s specimen:2 2 The text in the specimen is Romanian. Applicant provided a translation of the specimen. Amendment to Allege Use (TSDR 9-12). All citations contained in the Trademark Status & Document Retrieval (TSDR) database are to the downloadable .pdf format of the documents. The “About” section is translated as follow: “Over time, I have collected a number of documents, photos and stories that I now want to share with my friends and with anyone else who might have an interest in these subjects.” Id. at TSDR 9. In the “Story” section, Applicant invites followers of this page to share their opinions, feelings and knowledge pertaining to the subjects Applicant displays. Id. Serial No. 87574499 - 3 - The Examining Attorney refused registration under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051 and 1127, on the ground that the specimen does not show Applicant’s mark in use in connection with the identified services. The Examining Attorney explains that the specimen fails to show a sufficient nexus or direct association between the mark PHOTO HISTORIA and the services, “on-line journals, namely, blogs featuring historical photographs and connected historical information.”3 According to the Examining Attorney, “a Facebook page is not a blog.”4 The Oxford Living Dictionaries define a “blog” as “a regularly updated website or web page, typically one run by an individual or small group, that is written in an informal or conversational style.”5 MERRIAM-WEBSTER.com defines a blog as, 1. computers: a website that contains online personal reflections, comments, and often hyperlinks, videos and photographs provided by the writer also: the contents of such a site 2. a regular feature appearing as part of an online publication that typically relates to a particular topic and consists of articles and personal commentary by one or more authors a technology blog6 3 Examining Attorney’s Brief (8 TTABVUE 5). 4 Id. 5 OXFORD LIVING DICTIONARIES (oxforddictionaries.com) attached to the August 3, 2018 Office Action (TSDR 22). 6 December 19, 2018 Response to Office Action (TSDR 6). Because the MERRIAM-WEBSTER.com definition had been submitted by Applicant, it was unnecessary for the Examining Attorney to submit it a second time in her January 18, 2019 Office Action (TSDR 7). Serial No. 87574499 - 4 - A “photoblog” is defined as “a blog in which the postings are primarily in the form of photographs.”7 According to the Smashing Magazine website (smashingmagazine.com), A photoblog is a very specific type of blog. Its focus is photography, and there are typically few words beyond a caption and comments. Photoblogs are easy to set up and maintain, and they make great galleries for photographers who are put off by the complexity of HTML coding or installing a CMS such as WordPress.8 See also Wikipedia.org, A photoblog (or photolog) is a form of photo sharing and publishing in the form of a blog. It differs from a blog through the predominant use and focus on photographs rather than text. * * There are three popular ways to host a photoblog. Photoblogs on individual domains, photoblogs on blogging hosting services such as WordPress or Blogger, and photoblogs on photo specific blogging services such as Fotolog or Flickr.9 “Traditional” photoblogs take the form illustrated below:10 7 OXFORD LIVING DICTIONARIES (oxforddictionaries.com) attached to the November 24, 2017 Office Action (TSDR 36). 8 November 24, 2017 Office Action (TSDR 37). 9 Id. at TSDR 38. 10 Id. at TSDR 9-32. Serial No. 87574499 - 5 - Serial No. 87574499 - 6 - Applicant’s Facebook webpage meets the definition of a blog in general inasmuch as it contains online personal reflections, comments, and photographs provided by the writer. In addition, it meets the definition of a photoblog because its postings are primarily in the form of photographs. Applicant’s Facebook page is entitled PHOTO HISTORIA and Applicant’s photographs are displayed on that very Facebook webpage, thus, creating the nexus or direct association with “on-line journals, namely, blogs featuring historical photographs and connected historical information.” The Examining Attorney contends that consumers will not perceive Applicant’s Facebook webpage as a blog because Facebook is a social networking site through Serial No. 87574499 - 7 - which people create and maintain personal relationships.11 Specifically, “Social networks like Facebook are used to connect with others and build relationships, while blogs are used to publish content.”12 However, users can blog on Facebook.13 Did you know that Facebook offers another option for sharing with your friends and fans? It is a longer form communication much more like LinkedIn’s professional publishing platform. And it may be worth a look if your brand has a bit more to share than a recent photo or link to your latest blog post. The Facebook Notes app was created and launched in 2006 and allows longer form content much like a blog post. The notes app hasn’t gotten much love or attention from Facebook. But is has more advantages than disadvantages today as content marketing becomes more important for small business success, especially on social media. * * * Facebook Notes is a possible alternative for people that might not have their own dedicated blog or website. If you want to write longer form posts on a social site and engage much more directly with your social media following, this is one approach.14 11 Examining Attorney’s Brief (8 TTABVUE 6). 12 Id. citing “10 Types of Social Media and How Each Can Benefit Your Business,” Hootsuite website (blog.hootsuite.com) attached to the January 18, 2019 Office Action (TSDR 8-21). 13 “Did You Know You Can Blog On Facebook?” Small Business Trends website (Smallbiztrends.com) attached Applicant’s January 23, 2019 Response to Office Action (TSDR 6-14) and “How to blog on Facebook to increase engagement,” the Garage blog on Godaddy.com/garage/ attached to Applicant’s January 23, 2019 Response to Office Action (TSDR 15-21). 14 “Did You Know You Can Blog On Facebook?” Small Business Trends website (Smallbiztrends.com) attached Applicant’s January 23, 2019 Response to Office Action (TSDR 6-7). Serial No. 87574499 - 8 - “While it’s true Facebook isn’t a traditional blogging platform, it is a fabulous place to share all your awesome content.”15 Businesses and others are using Facebook for more than just a social networking site where “people create and maintain interpersonal relationships.”16 For example, “people are using many different types of social media to connect online for all kinds of reasons.”17 While the Examining Attorney cites to the Hootsuite blog article “10 Types of Social Media and How Each Can Benefit Your Business” to identify social media to connect with people and blogs to publish content,18 the record shows that consumers use the different platforms for multiple purposes. Nothing prohibits people from using social media to post content, post photographs, trade goods or services, or from using blogs to connect with people, or discover, save, and share new content. Accordingly, we disagree with the Examining Attorney’s conclusion that Applicant has not submitted any evidence to show that Facebook may be a blogging platform.19 15 “How to blog on Facebook to increase engagement,” the Garage blog on Godaddy.com/garage/ attached to Applicant’s January 23, 2019 Response to Office Action (TSDR 16). 16 Merriam-Webster.com attached to the January 18, 2019 Office Action (TSDR 6) (defining “social network” as, inter alia, “an online service or site through which people create and maintain interpersonal relationships.”). 17 “10 Types of Social Media and How Each Can Benefit Your Business,” Hootsuite website (blog.hootsuite.com) attached to the January 18, 2019 Office Action (TSDR 8). 18 Examining Attorney’s Brief (8 TTABVUE 6). 19 Examining Attorney’s Brief (8 TTABVUE 7). Serial No. 87574499 - 9 - The Examining Attorney also points out that Applicant has not established that he used the Facebook blogging applications.20 That is irrelevant because Applicant is using his Facebook page as a blog to post content regarding historical photographs and inviting viewers to respond to his content. We find that consumers will perceive the PHOTO HISTORIA Facebook webpage to be a blog posted on Facebook. We find that the Facebook webpage specimen shows Applicant using the mark PHOTO HISTORIA in connection with “on-line journals, namely, blogs featuring historical photographs and connected historical information.” Decision: The refusal to register Applicant’s mark PHOTO HISTORIA is reversed. 20 Examining Attorney’s Brief (8 TTABVUE 7).