1402.11(f) Distribution of Videotapes, Audiotapes, Videodiscs, and Similar Items
The services of production and distribution of motion pictures and television programs are classified in Class 41. This service involves the actual creation of the motion picture or television program and the accompanying activity of distributing it to movie theatres and television stations for display to the public. In this service, the ownership of the physical product does not leave the producer. The movie theatre or television stations "lease” (in a sense) the film or tape for a period of time and then return it to the producer. This is not the case when distribution relates to videotapes, audiotapes, or other hard goods that result from the production of visual or audio entertainment. When these goods are distributed, it is the same as the distribution of any other kind of hard goods by any other manufacturer. The ownership of the physical product is transferred to the purchaser just as it is with clothing, toys, food products, or computers. For this reason, the identification “distribution of videotapes, audiotapes, and videodiscs,” should not be accepted as a service even when the distribution is linked to the production of these goods. The production of the entertainment product is perfectly acceptable in Class 41; however, the distribution of the hard goods that result from that production is not a service in that class. It is possible that such distribution could be considered a distributorship service in Class 35, but that must be determined on a case-by-case basis. Distribution of one‘s own goods is not a service; it is merely a necessary part of doing business. However, if the applicant distributes the videotapes, audiotapes, etc. of others as well as those it has produced, it may be identified as a distributorship service in Class 35.
See TMEP §§1301.01 et seq. regarding the criteria for determining whether an activity constitutes a service.