TMEP 1301.01(a)(i): Performance of a Real Activity

October 2017 Edition of the TMEP

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1301.01(a)(i)    Performance of a Real Activity

A service must be a real activity. A mere idea or concept, e.g., an idea for an accounting organizational format or a recipe for a baked item, is not a service.  Similarly, a system, process, or method is not a service. In re Universal Oil Prods. Co., 476 F.2d 653, 177 USPQ 456 (C.C.P.A. 1973); In re Citibank, N.A., 225 USPQ 612 (TTAB 1985); In re Scientific Methods, Inc., 201 USPQ 917 (TTAB 1979); In re McCormick & Co., 179 USPQ 317 (TTAB 1973).  See TMEP §1301.02(e) regarding marks that identify a system or process.

The commercial context must be considered in determining whether a real service is being performed.  For example, at one time the activities of grocery stores, department stores, and similar retail stores were not considered to be services.  However, it has long been recognized that gathering various products together, making a place available for purchasers to select goods, and providing any other necessary means for consummating purchases constitutes the performance of a service.