TMEP 904.03(g): Displays Associated with Goods

October 2017 Edition of the TMEP

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904.03(g)    Displays Associated with Goods

A display must be associated directly with the goods offered for sale. See In re Kohr Bros., Inc., 121 USPQ2d 1793 (TTAB 2017). It must bear the trademark prominently.  However, it is not necessary that the display be in close proximity to the goods. See In re Marriott Corp., 459 F.2d 525, 173 USPQ 799 (C.C.P.A. 1972); Lands’ End Inc. v. Manbeck, 797 F. Supp. 511, 24 USPQ2d 1314 (E.D. Va. 1992).

Displays associated with the goods essentially comprise point-of-sale material such as banners, shelf-talkers, window displays, menus, and similar devices.

These items must be designed to catch the attention of purchasers and prospective purchasers as an inducement to make a sale. See In re Kohr Bros., 121 USPQ2d at 1796 (finding that an envelope-sized sign placed on a wall next to a business license and health department certificate would not catch the attention of consumers or be regarded as a trademark for applicant’s goods). Further, the display must prominently display the mark in question and associate it with, or relate it to, the goods. See id. at 1795;  In re Osterberg, 83 USPQ2d 1220 (TTAB 2007); In re Morganroth, 208 USPQ 284 (TTAB 1980) (purported mark was so obfuscated on the specimen that it was not likely to make any impression on the reader).  The display must be related to the sale of the goods such that an association of the two is inevitable. See In re Bright of Am., Inc., 205 USPQ 63 (TTAB 1979), and cases cited therein;  see also In re ITT Rayonier Inc., 208 USPQ 86 (TTAB 1980);  cf. In re Shipley Co., 230 USPQ 691 (TTAB 1986); In re Jones,216 USPQ 328 (TTAB 1982).

Folders, brochures, or other materials that describe goods and their characteristics or serve as advertising literature are not per se "displays." In re Schiapparelli Searle, 26 USPQ2d 1520 (TTAB 1993); In re Drilco Indus. Inc., 15 USPQ2d 1671 (TTAB 1990).  In order to rely on such materials as specimens, an applicant must submit evidence of point-of-sale presentation.  Such evidence must consist of more than an applicant's statement that copies of the material were distributed at sales presentations or tradeshows. A mere statement that advertising and promotional materials are used in connection with sales presentations is not sufficient, in and of itself, to transform advertising and promotional materials into displays used in association with the goods. In re Osterberg, 83 USPQ2d 1220, 1224 ("Applicant's declaration lacks sufficient detail to transform the web page from advertising into a display used in association with the goods.  For example, there is no discussion regarding how the applicant used the web page at sales presentations to make an association between the mark and the products or whether consumers, in fact, associated the mark with the products.  The use of advertising material in connection with the sales of a product does not ipso facto make it a display used in association with the goods sufficient to support technical trademark use for registration."); see also In re Anpath Grp., Inc., 95 USPQ2d 1377 (TTAB 2010) (holding that pamphlet and flyer listing the URL of applicant’s website and/or a telephone number for contacting sales representatives does not create the same point-of-sale situation as a detailed catalogue, a detailed web page, or a situation where there is the option of placing an order based upon detailed information from the specimen); In re Ancha Elecs. Inc., 1 USPQ2d 1318 (TTAB 1986); (holding that a photograph showing an informational flyer or leaflet clearly depicting the mark and presented on the goods at a trade show exhibit was an acceptable display associated with the goods); In re Columbia Chase Corp., 215 USPQ 478 (TTAB 1982) (holding that folders and brochures describing goods and their characteristics or serving as advertising literature are not displays, and the appearance of marks and product photographs in such literature does not per se amount to use of a mark on displays without evidence of point-of-sale presentation).

An infomercial was held to be a display associated with the goods, where the goods were shown either immediately before or immediately after the trademark was displayed, and the information on how to order the goods was given within a reasonable time after the goods were shown. In re Hydron Techs., Inc., 51 USPQ2d 1531 (TTAB 1999). The Board found that the infomercial created an association between the trademark and the goods, and the test for constituting a display associated with the goods was, therefore, satisfied. Id.

Displays associated with the goods also exist in an electronic or online environment in the form of web pages. These "electronic displays" perform the same function as traditional displays and must meet the same standards for an acceptable specimen as traditional displays. See In re Sones, 590 F.3d 1282, 1288, 93 USPQ2d 1118, 1123 (Fed. Cir. 2009); In re Dell Inc., 71 USPQ2d 1725, 1727 (TTAB 2004). See TMEP §904.03(i) regarding electronic displays.