Timber Creek at Okemo Number II, LLC

Trademark Trial and Appeal Board

Aug 1, 2018

No. 86981587 (T.T.A.B. Aug. 1, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 1, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Timber Creek at Okemo Number II, LLC
_____

Serial No. 86981587
Serial No. 86981588
(Consolidated)
_____

James E. Shlesinger of Shlesinger, Arkwright & Garvey LLP,
for Timber Creek at Okemo Number II, LLC.
Michelle E. Dubois, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Goodman, Larkin, and Coggins,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Timber Creek at Okemo Number II, LLC (“Applicant”) seeks registration on the
Principal Register of (1) the mark SOUTHFACE VILLAGE in standard characters
for “building construction; residential and commercial building construction; and
construction maintenance of property,” in International Class 37,1 and (2) the
composite word-and-design mark shown below, for the same services:

1 Application Serial No. 86094929 was filed on October 18, 2013 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
Serial Nos. 86981587 and 86981588 (Consolidated)
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2
The Trademark Examining Attorney has refused registration of both marks under
Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1127, on the ground that
Applicant’s multiple specimens of use fail to show use of the applied-for marks in
commerce in connection with any of the services identified in the applications. When
the Examining Attorney made the refusals final, Applicant appealed in both cases
and requested reconsideration, which was denied. The Board granted Applicant’s
motions to consolidate the two appeals, 17 TTABVUE in Serial Nos. 86981587 and
86981588,3 and the appeals have been fully briefed.4 We affirm the refusals to
register.

to use the mark in commerce. The application originally covered services in International
Classes 36, 37, 41, and 43. Following allowance of the application, it was divided and the
services in Classes 36 and 37 were retained in Application Serial No. 86094929. When
Applicant filed a statement of use, the application was divided again into a parent application
containing the Class 36 services and a child application Serial No. 86981587 containing the
Class 37 services, which is before us on appeal.
2 Application Serial No. 86094995 was filed on October 18, 2013 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. Like Applicant’s standard character application, this
application was ultimately divided into a parent application containing the Class 36 services,
and a child application Serial No. 86981588 containing the Class 37 services, which is before
us on appeal.
3 The Board denied Applicant’s request to consolidate these appeals with its pending
consolidated appeals in Application Serial Nos. 86094929 and 86094995 for the parent
applications, which involve different services and have not yet been briefed. 17 TTABVUE 2.
4 The same briefs were submitted in both appeals. Citations to the briefs in this opinion are
to the briefs in Application Serial No. 86981587.
Serial Nos. 86981587 and 86981588 (Consolidated)
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I. Prosecution History and Record on Appeal
Following allowance of both involved applications, Applicant submitted
statements of use supported by the same specimen.5 The Examining Attorney issued
Office Actions rejecting the specimen on the ground that it did not show use of the
applied-for marks in commerce in connection with any of the Class 37 services, and
required Applicant to submit substitute specimens.6 Applicant responded by
submitting “additional specimens taken from Applicant’s website which evidence the
use of Applicant’s mark in connection with the services designated in the
application.”7 The Examining Attorney rejected the substitute specimens and made
the refusals final.8
Applicant twice sought reconsideration of the final refusals, and submitted
additional substitute specimens, a contract between Applicant and Bensonwood
Woodworking Company (“Bensonwood”), an architectural firm that is mentioned in
most of Applicant’s specimens, and an Office Action issued by the Examining
Attorney in parent Application Serial No. 86094929.9 In denying the second request

5 Citations to the record in this opinion are to the record in Application Serial No. 86981587.
6 March 2, 2017 Office Action at 1.
7 March 30, 2017 Response to Office Action at 1.
8 May 1, 2017 Office Action at 1.
9 July 27, 2017 Request for Reconsideration at 2-66; November 1, 2017 Request for
Reconsideration at 2-14 (4 TTABVUE 1-19). In its reply brief, Applicant also requests that
the Board take judicial notice of the definition of the term “real estate development” from the
CAMBRIDGE BUSINESS ENGLISH DICTIONARY as “a group of similar buildings built in an area
by a particular developer (=company that buys land and builds houses, offices, etc. on it).” 13
TTABVUE 2, 5-7; Ex. A. We grant the request because the dictionary indicates that the
definition is applicable in the United States, but do not see the relevance of the definition.
“Real estate development” services are not identified in the involved applications, and even
assuming that Applicant is understood by prospective purchasers of its services to be a real
Serial Nos. 86981587 and 86981588 (Consolidated)
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for reconsideration, the Examining Attorney made of record webpages from third-
party websites showing what she claimed to be a distinction between development
services and home building services.10
II. Analysis of Sufficiency of Specimens
“An application initially based on Trademark Act Section 1(b) must, upon the
filing of . . . a statement of use under Section 1(d), include one specimen showing the
applied-for mark in use in commerce, on or in connection with those goods or services
identified in the application . . . .” In re Florists’ Transworld Delivery, Inc., 119
USPQ2d 1056, 1062 (TTAB 2016). Applicant submitted multiple specimens in
support of its statements of use, but it only needs to show that one specimen shows
use of each applied-for mark in commerce in connection with the identified services.
Trademark Rule 2.56(a), 37 C.F.R. § 2.56(a).11
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.” “Such

estate developer, which is internally defined as a “company that buys land and builds houses,
offices, etc. on it,” Applicant still must show that at least one of its specimens shows the sale
or advertising of the services identified in the involved applications.
10 January 8, 2018 Denial of Request for Reconsideration at 4-23 (5 TTABVUE 5-21; 6
TTABVUE 2-7).
11 Applicant argues in its reply brief that we “should consider the totality of the specimens of
record, both individually and collectively,” because “‘one should look at the evidence as a
whole, as if each piece of evidence was part of a puzzle which, when fitted together,
established prior use.’” 13 TTABVUE 3-4 (quoting West Fla. Seafood Inc. v. Jet Rests. Inc., 31
F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994)). We will, of course, consider each of the
specimens individually, but West Fla. Seafood does not support Applicant’s request that we
consider them “collectively.” The issue in that case was whether a cancellation petitioner had
established prior use of its mark on the basis of the mark’s appearance in multiple materials,
not whether any of those materials, or all of them collectively, sufficed as specimens of use
for registration purposes.
Serial Nos. 86981587 and 86981588 (Consolidated)
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use may be established by: (1) showing the mark used or displayed as a service mark
in the sale of the services, which includes use in the course of rendering or performing
the services, or (2) showing the mark used or displayed as a service mark in
advertising the services, which encompasses marketing and promotional materials.”
In re WAY Media, Inc., 118 USPQ2d 1697, 1698 (TTAB 2016). “An acceptable
specimen must show ‘some direct association between the offer of services and the
mark sought to be registered therefor.’” Id. (quoting In re Universal Oil Prods. Co.,
476 F.2d 653, 177 USPQ 456, 457 (CCPA 1973)). “‘To determine 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 Pitney Bowes, Inc., 125 USPQ2d
1417, 1419 (TTAB 2018) (quoting In re JobDiva, Inc., 843 F.3d 936, 121 USPQ2d
1122, 1126 (Fed. Cir. 2016)).
Applicant does not specify whether it considers its specimens to involve the sale
or the advertising of its services, 10 TTABVUE 15 (arguing that its mark “is used in
the sale or advertising of services”), but we find that they all constitute advertising.
Several of Applicant’s specimens appear to be promotional brochures, or are actual
magazine advertisements,12 regarding “Southface Village at Okemo,”13 and
Applicant’s website specimens do not involve the sale, rendition, or performance of
any services.14 Cf. Pitney Bowes, 125 USPQ2d at 1419 (applicant’s webpages touting

12 July 27, 2017 Request for Reconsideration at 50-62. Applicant describes these specimens
as “other promotional materials” in addition to its website. 10 TTABVUE 5.
13 The record shows that Okemo is a ski resort in Vermont. Id. at 47-49.
14 For example, several webpages urge visitors to “Ski over or call for an insider preview” and
to fill out online forms to “receive personalized information” regarding the prospective
Serial Nos. 86981587 and 86981588 (Consolidated)
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the availability of a kiosk for use in mailing packages were advertisement specimens).
“For specimens showing the mark in advertising the services, ‘[i]n order to create the
required ‘direct association,’ the specimen must not only contain a reference to the
service, but also the mark must be used on the specimen to identify the service and
its source.’” WAY Media, 118 USPQ2d at 1698 (quoting In re Osmotica Holdings
Corp., 95 USPQ2d 1666, 1668 (TTAB 2010)).
The ROA Specimens
The services identified in the involved applications are “building construction;
residential and commercial building construction; and construction maintenance of
property.” Applicant argues that “[b]uilding construction services are evident from
the prominent display of the Applicant’s mark” in various portions of the text on
specific webpages that Applicant submitted as substitute specimens with its March
30, 2017 Response to Office Action, which webpages Applicant refers to as the “ROA
Specimens.” 10 TTABVUE 5, 13-14.
With respect to the ROA Specimens generally, Applicant argues that the “fact that
other services are identified on the website, or other entities are mentioned which
perform services for Applicant under contractual relationships with Applicant doesn’t
compromise Applicant’s satisfaction” of the requirement of a direct association
between the applied-for marks and building construction services. Id. at 13. With
respect to Bensonwood specifically, Applicant contends, on the basis of its contract

residences at Okemo. March 30, 2017 Response to Office Action at 2, 7, 9, 11; July 27, 2017
Request for Reconsideration at 65; November 1, 2017 Request for Reconsideration at 13 (4
TTABVUE 18).
Serial Nos. 86981587 and 86981588 (Consolidated)
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with that company,15 that it “controls the construction aspects of the services,” and
that it “oversees and is responsible for much of the building process,” id. at 14-15,
including various specific tasks such as excavation, site work, foundation, stone work
and masonry, exterior mechanical connections, and the like. Id. at 15. Applicant
concludes that its specimens “are designed to catch the attention of potential
purchasers of homes, penthouses and mountain chalets; and the purchasing public
will associate the marks with Applicant’s services even if there may be an association
with other named entities on the specimens of record.” Id. at 15-16.
In response to Applicant’s arguments, including those regarding its relationship
to Bensonwood, the Examining Attorney argues as follows:
Other entities provide services to Applicant to build and
operate the ski community, such as a construction
firm/architect, designer, and ski slope maintenance
provider. If Applicant’s arguments were accepted, then it
would appear based on the substitute specimens that
Applicant could also receive a registration for
SOUTHFACE VILLAGE for interior design services and
supplying artificial snow, and indeed anything else that
Applicant happens to list as being provided by a contractor
for the community, such as perhaps services performed by
a landscaping company.
12 TTABVUE 7. She concludes that “the logical, plain reading of the multiple
specimens of record shows that Applicant itself is not engaged in construction services
– rather, another entity is clearly designated as providing those services.” Id. at 8.

15 July 27, 2017 Request for Reconsideration at 2-45. The contract defines Bensonwood as the
“Design-Builder,” id. at 2, and provides that as “Design-Builder,” Bensonwood shall perform
the “Work,” which is defined as “the design, construction and services required by the Design-
Build Documents, whether completed or partially completed, and includes all other labor,
materials, equipment and services provided by the Design-Builder to fulfill the Design-
Builder’s obligations.” Id. at 10.
Serial Nos. 86981587 and 86981588 (Consolidated)
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Applicant focuses in its briefs on ROA Specimens 1 and 3. 10 TTABVUE 13-14.16
We set forth below the cited text of those two specimens, followed by a reproduction
of the referenced portion(s) of the specimens, any arguments by the Examining
Attorney, and our analysis of the sufficiency of the specimens.
1. “Our primary commitment is building homes that take full advantage of
energy efficient design, advanced construction techniques and this enviable
south-facing location. . . . Southface Village at Okemo® is the first new
construction at Okemo in nearly a decade. ROA Specimen 1, Page 1.”17
18

16 Applicant does not discuss its original specimen, or the other substitute specimens
comprising brochures or magazine advertisements. We presume from Applicant’s focus on
two of the ROA Specimens that they are the ones that Applicant believes to be the best
examples of a direct association between its marks and building construction services, but
we discuss all of the specimens submitted by Applicant, not just those discussed in its briefs.
17 10 TTABVUE 8.
18 March 30, 2017 Response to Office Action at 2.
Serial Nos. 86981587 and 86981588 (Consolidated)
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The Examining Attorney argues that the cited language must be read together
with the surrounding language from the cited portion of Applicant’s website. 12
TTABVUE 5-6. That surrounding language is shown in what Applicant describes as
“ROA Specimen 1 Page 2,” 10 TTABVUE 6, which is a more complete version of “ROA
Specimen 1, Page 1” on which the language cited by Applicant appears:
19
The Examining Attorney points to the language that appears directly beneath the
applied-for marks on this page, 12 TTABVUE 5-6, and argues that when the
sentences cited by Applicant and this additional language “are placed and read in
context, consumers will recognize that SouthFace Village is not a builder; rather

19 March 30, 2017 Response to Office Action at 3.
Serial Nos. 86981587 and 86981588 (Consolidated)
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applicant utilizes a different company under the mark Bensonwood that performs
this services.” Id. at 6. We agree.
Specimens involving advertising “must not only contain a reference to the service,
but also the mark must be used on the specimen to identify the service and its
source.” WAY Media, 118 USPQ2d at 1698 (quotation omitted and emphasis added).
There are references on this specimen to building construction services, but
consumers, who Applicant describes as “potential purchasers of homes, penthouses
and mountain chalets” in SouthFace Village, 10 TTABVUE 16, would not understand
Applicant to be the source of such services, but rather “local builder, Bensonwood,”
which is touted as an “[a]ward winning architectural/construction firm that
understands the unique demands of mountain building and meets them brilliantly.”
In the context of the specimen as a whole, the statement that Applicant’s presumed
affiliate Okemo Development Company LLC has the “primary commitment” of
“building homes that take full advantage of energy efficient design, advanced
construction techniques and this enviable south-facing location” would not be
understood to indicate that that entity actually builds the homes. This specimen does
not identify Applicant as the source of the referenced building construction services.
2. “Coming together to build your new slope side community because we are
part of your Community. For more information or to visit our model home
call us at 844-276-4204. ROA Specimen 1, Page 5.”20

20 10 TTABVUE 6.
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21
Specimens need not explicitly refer to services to establish the requisite direct
association between the mark and the services, WAY Media, 118 USPQ2d at 1698,
but this specimen does not refer to building construction services at all. In context,
the reference to “build[ing] your new slope side community” refers figuratively to
further development of the “community” of which Applicant claims already to be a
part, not literally to the actual construction of buildings. This specimen is insufficient
because it does not refer to the identified services.
3. “Townhouses, penthouses and mountain chalets, single-family homes
Southface Village® Penthouses and Mountain Chalets will re-define luxury
slope-side living at Okemo – and in Vermont. These elite 2,500 to 3,000
square foot residences will be furnished to your specifications and will be

21 March 30, 2017 Response to Office Action at 6.
Serial Nos. 86981587 and 86981588 (Consolidated)
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the epitome of four-season living on the mountain. ROA Specimen 3, Pages
8 and 9.”22
23
24

22 10 TTABVUE 10.
23 March 30, 2017 Response to Office Action at 9.
24 Id. at 10. This page is a more complete version of the page displayed immediately above it.
Serial Nos. 86981587 and 86981588 (Consolidated)
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The Examining Attorney argues that the text cited by Applicant on this specimen
is immediately followed by a paragraph referring to “the innovative architects at
Bensonwood,” 12 TTABVUE 6, who the page touts as being “[k]nown for creating
some of the most beautiful and eco-friendly residences in the country” and as “the
premier New England builder.” To the extent that this specimen alludes to building
construction services, we agree with the Examining Attorney that “when read in
context, the specimen specifically states that applicant does not provide building or
construction services; rather, a company entitled Bensonwood has been contracted by
Applicant to perform such services.” Id. This specimen does not identify Applicant as
the source of the referenced services.
4. “Based on your preferences your home can have three to five bedrooms, a
media room, recreation room, state of the art gourmet kitchen, wine cellar,
dining room, play lofts, a tuning room, indoor parking, dedicated elevator
service and exquisite finishing and furnishings throughout possibilities are
endless as the Vermont sky let your imagination run wild . . . ROA
Specimen 3, Page 9.”25

25 10 TTABVUE 10.
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26
The specific text cited by Applicant does not refer to building construction services,
but the specimen in its entirety alludes to them. It contains the language regarding
Bensonwood discussed immediately above, and leaves no doubt that the referenced
building construction services are provided by that entity, not Applicant. This
specimen does not identify Applicant as the source of the referenced services.
Applicant’s arguments regarding the nature of its contractual relationship with
Bensonwood are inapposite. Bensonwood, not Applicant, is the entity that is
identified in all of the ROA Specimens as the one that will provide building
construction services to potential purchasers of homes, penthouses and mountain
chalets in SouthFace Village.27 Indeed, in addition to the ROA Specimens discussed

26 March 30, 2017 Response to Office Action at 10.
27 Applicant claims that it, not Bensonwood, “is responsible for much of the building process,
including evacuation, site work, foundation, stone work and masonry, exterior stair towers,
garage floors and striping, all mechanical connections associated with water, sewer, electric,
storm drainage, etc.” or “miscellaneous carpentry outside the building proper, roads, sewers,
water, snowmaking, retaining walls, sidewalks and paths, fences and railings, landscaping,
Serial Nos. 86981587 and 86981588 (Consolidated)
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above, ROA Specimen 4, Page 11, 10 TTABVUE 11, which is not discussed by
Applicant, specifically states that prospective purchasers “can select from three
beautiful Bensonwood Home designs created expressly for SouthFace Village®” and
that “[t]hese custom homes built by Bensonwood, the premier New England builder
with a 40-year track record, feature up to five bedrooms with four baths and come
with a host of options for customization.” The fact that “Applicant controls the
construction aspects of the services” provided by Bensonwood, 10 TTABVUE 14,
might be relevant if Bensonwood used the applied-for marks in connection with the
referenced building construction services, and Applicant claimed that Bensonwood’s
use of the marks inured to Applicant’s benefit because Bensonwood was a “related
company” within the meaning of Section 45 of the Trademark Act, 15 U.S.C. § 1127,
but there is no indication on the specimens that Bensonwood uses any marks other
than its own. The ROA Specimens simply do not advertise building construction
services provided by Applicant under the applied-for marks.

sprinkler systems, fireproofing of the garage, meter rooms and mechanical rooms, signage,
and other constructions.” 10 TTABVUE 15. None of the pages listing the members of the
“Development Team” for SouthFace Village at Okemo, ROA Specimen 1, pages 2-4 (10
TTABUVE 6-7), state that Applicant provides these services.
Serial Nos. 86981587 and 86981588 (Consolidated)
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Applicant’s Original Specimen and Other Substitute Specimens28
We reproduce below Applicant’s original specimen:29
30
The Examining Attorney rejected this specimen because it specifically references
Bensonwood “as the provider of the construction services,” 12 TTABVUE 5, and
because “consumers will likely associate ‘Bensonwood’ as an indicator of source for
the builder” and “[t]he language ‘SOUTHFACE VILLAGE’ will likely be perceived as

28 Applicant also submitted what appear to be two articles about the SouthFace Village at
Okemo development entitled “Developer to Build New $200 Million Ski Village on Okemo
Mountain” and “Okemo Skier to Build South Face Village.” July 27, 2017 Request for
Reconsideration at 62-66. These are not specimens of Applicant’s use of the applied-for
marks, and we note, in any event, that notwithstanding the use of the words “Developer to
Build” in the title of the first article, the body states that the developer “will use local
contractors” to build “the residential buildings as South Face Village.” Id. at 63.
29 In its response to the first Office Action, Applicant purported to “request[] reconsideration
of the refusal,” March 30, 2017 Response to Office Action at 1, and we deem Applicant to have
preserved the right to challenge the refusal of its original specimen, even though it focused
solely on the substitute specimens on appeal.
30 January 24, 2017 Statement of Use.
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the name of the development, or possibly an indicator of the source for a ski resort.”
Id. We agree with the Examining Attorney that to the extent that this specimen
alludes to building construction services, there is no direct association between the
applied-for marks and those services because viewers of the webpage are specifically
told that “[y]ou will be working with the architects at Bensonwood” in the
construction of residences.
With respect to Applicant’s other substitute specimens, the Examining Attorney
argues that Applicant’s magazine advertisements “specifically indicate Bensonwood
as the builder of the homes,” and that in these specimens, “SOUTHFACE VILLAGE
is an indicator of source for a housing development or ski community, not for the
provision of building construction services for others.” Id. at 7. We depict below one
of the double-page magazine advertisements:
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Serial Nos. 86981587 and 86981588 (Consolidated)
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31
To the extent that this advertisement alludes to building construction services, there
is no direct association between the applied-for marks and Applicant as the source of
those services, as the advertisement refers to “eco-conscious construction by
Bensonwood.” Applicant’s brochures similarly refer to Bensonwood, not Applicant, as
the provider of any referenced building services.32

31 July 27, 2017 Request for Reconsideration at 57-58 (Okemo Magazine, No. 34 Vol. I
(Summer 2015)).
32 Id. at 50-56.
Serial Nos. 86981587 and 86981588 (Consolidated)
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Finally, Applicant’s citations of Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350,
90 USPQ2d 1301 (Fed. Cir. 2009) in its main brief, 10 TTABVUE 15, and of a non-
precedential Board decision, In re Star Bridge Sys., Inc., 2001 WL 1631348 (Serial
No. 75606002) (TTAB December 19, 2001), in its reply brief, 13 TTABVUE 3, are
unavailing.33 Aycock did not address the sufficiency of specimens, but rather whether
the respondent in that cancellation proceeding had ever actually used its mark in
commerce in connection with the identified services. 90 USPQ2d at 1308 (holding
that “advertisement and actual use of the mark in commerce” are required for
registration of service marks, but that “we will not address the issue of whether [the]
advertising was sufficient to meet the first element of the service mark use
requirements”).
We are not bound by the non-precedential Star Bridge decision, In re Fiat Grp.
Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB 2014), but it does
not support the argument for which Applicant cites it: “[T]he potential customer will
draw a connection between the mark and the services as Applicant is the original
source; and the consumer will look to Applicant for resolution of issues associated
with any aspect of the services claimed in the application.” 13 TTABVUE 3. Star
Bridge held that the use of the applied-for mark in a list of the applicant’s various
marks on an internal page of a software user manual did not create a direct

33 Applicant also cites In re Sones, 590 F.3d 1282, 93 USPQ2d 1118 (Fed. Cir. 2009) in its
reply brief. 13 TTABVUE 3. Sones merely set forth the rule, discussed above, that an
acceptable specimen must evince an association between the mark and the goods or services,
and serve as an indicator of source.
Serial Nos. 86981587 and 86981588 (Consolidated)
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association between the mark and the goods. In any event, even assuming that
Applicant might be viewed as the “original source” of all of the various services
necessary to complete the SouthFace Village development, in the sense that as the
developer, it hired and supervised the sub-contractors who actually provide the
services, and that consumers might “look to Applicant for resolution of issues
associated with any aspect of the services” in its capacity as the de facto general
contractor for the development,34 the specimens of record do not show a direct
association between the applied-for marks and Applicant as the entity that actually
provides the referenced building construction services under the marks. The
specimens may show the use of the applied-for marks in connection with services
other than building construction services, but they do not suffice as evidence of
Applicant’s use of the marks in connection with those services, or the other Class 37
services identified in the applications.
Decision: The refusals to register are affirmed.

34 We agree with the Examining Attorney that the third-party websites that she made of
record in denying Applicant’s second request for reconsideration, 5 TTABVUE 5-21; 6
TTABVUE 2-7, suggest that consumers viewing the specimens of record are likely to
understand Applicant to be a developer, not the provider of building construction services. 12
TTABVUE 9.