904.03(i)(C) Ordering Information
A point-of-sale web-page display must provide a means of ordering the goods, either directly from the web page itself (e.g., web page contains a "shop online" button or link) or from information gleaned from the web page (e.g., web page lists a telephone number designated for ordering). See In re Quantum Foods, Inc., 94 USPQ2d 1375, 1378-79 (TTAB 2010); In re Osterberg, 83 USPQ2d 1220, 1224 (TTAB 2007). If the web page offers no way to purchase the goods, the web page is merely an advertisement and not a display associated with the goods. See In re Quantum Foods, Inc., 94 USPQ2d at 1378-80; In re Osterberg, 83 USPQ2d at 1224; In re Genitope Corp., 78 USPQ2d 1819, 1822 (TTAB 2006).
Indicators of the ability to buy the goods via the web page may include:
- a sales order form to place an order, an online process to accept an order, such as "shopping cart" functionality, or special instructions on how to order;
- information on minimum quantities;
- indication of methods of payment;
- information about shipment of the goods; and/or
- means of contacting the applicant to place an order.
See In re Anpath Grp., 95 USPQ2d 1377, 1381 (TTAB 2010); In re Quantum Foods, Inc., 94 USPQ2d at 1379.
Determining the sufficiency of ordering information is a nuanced analysis requiring an examination of the web page content and layout in terms of the level of detail provided about both the goods and the means for ordering them. The more specific and clear the means of immediately and directly ordering the goods on the web page (e.g., "shopping cart" or "Call 1-800-xxx-xxxx to Order Now"), the less detailed the information about the product features and specifications needs to be (e.g., price, size, color, or style), as shown in Example 11.
Example 11: Mark is associated with the goods, goods are pictured and described, and ordering information is provided.
Mark: RING IN THE NEW YEAR WITH OUR RINGS
- The mark is placed on the bottom of the web page and is followed by the "TM" designation.
- The mark is close to the picture of the goods and contains the term "RINGS" which references the goods.
- The "SHOP ONLINE" tab and the "SHOP" link indicate direct ordering via the web page.
- Web page is also acceptable for goods if the proposed mark were "T.Markey Jewelry" (in upper-left corner) because it is located close to the picture of the goods and both the proposed mark and the "T.Markey Jewelry" mark indicate common origin since it can be inferred that the wording "OUR RINGS" in the proposed mark refers to rings by T.Markey Jewelry.
Conversely, the more detailed the product information is on the web page, the less detailed the ordering information needs to be (e.g., providing a telephone number without specifically stating that it be used to place orders). See Example 8 at TMEP §904.03(i)(B)(2). Although pricing information is normally associated with ordering goods, the presence or absence of pricing on its own is not determinative of whether the web page provides sufficient ordering information. Compare In re Dell Inc., 71 USPQ2d 1725, 1728-29 (TTAB 2004) (concluding that a web-page specimen used in connection with applicant’s computer hardware, which provided information about the goods but did not show the price of the goods, met the requirements for a display associated with the goods), and TMEP §904.03(h) (indicating that it is not necessary for a catalog specimen to list the price of the goods in order to meet the criteria for a display associated with the goods), with In re Quantum Foods, Inc., 94 USPQ2d at 1379 (listing pricing information as information normally associated with ordering goods and noting the absence of pricing or other ordering information on the applicant’s web page specimen to purchase the goods), and In re MediaShare Corp., 43 USPQ2d 1304, 1305 (TTAB 1997) (concluding that applicant’s specimen was merely advertising material because it lacked the price of the goods and other information normally associated with ordering goods). If the goods can be ordered via the information contained on the web page, then, presumably, the price will be presented at some point before the order is completed.
See TMEP §§904.03(i)(C)(1)-904.03(i)(C)(3) for a discussion of the common features of websites and the issues to consider when determining whether these features constitute sufficient means of ordering the goods.