UMG Fails To Get Trademark For 'As Heard On TV' In A Remarkably Sane Ruling From The TTAB
from the omg-umg dept
Much of the time we bring up the Trademark Office and the trademarks it approves or denies, our focus tends to be on how the general posture seems to be one geared towards approval and the often laughable approved marks that come out of that. The only example I’m going to continue to cite of this ridiculousness in these trademark posts is going to be that of the San Diego Comic-Con, which somehow has an approved trademark on “comic-con” and its variants, despite that being a plainly descriptive mark. The chaos that has caused has resulted in ongoing coverage here, but it is hardly the only example.
Making it all the more frustrating are the occasions when the Trademark Office gets things right. One will occasionally catch glimpses of the USPTO doing nuanced analysis and actually applying the standards of trademark law and public confusion, and denying a trademark application. For instance, Universal Music Group attempted to get a trademark for the phrase “As Heard On TV” for its music catalog of tracks designed to be used in television. That application was denied.
An examining attorney said that the application was unlikely to be approved unless UMG waived exclusive rights to the phrase. UMG declined, instead appealing the decision to the Trademark Trial and Appeal Board.
UMG also argued that the phrase wasn’t descriptive of its music library. The application said songs in the library are “exclusive and unlikely to have been heard on television previously.”
As mentioned, UMG appealed, arguing that the phrase wasn’t descriptive at all. Its argument for this was: “Nuh-uh, these tracks haven’t been heard on TV… yet!” Despite the catalog being specifically geared for TV productions, “as heard on TV” is not descriptive just because those tracks haven’t been bought yet? Come on.
The appeal board didn’t buy it either.
The board ruled that the phrase merely describes a service that offers TV-friendly music. The decision was handed down on April 17th with a solid rejection of the application. Judge Thomas Shaw rejected UMG’s argument that the catchphrase was a distinctive double entendre on the common infomercial slogan ‘As Seen On TV’. In his conclusion, Shaw writes that the phrase ‘As Heard On TV’ has no such double connotation or significance.
It’s the right call, of course. Allowing this mark would be to allow UMG to go after all kinds of variants of the phrase in marketing material used by its competitors. Looking forward like that and realizing that the phrase is far more useful as a descriptor of the product rather than a source identifier for it is a welcome outcome…
…but one which only leads one to question, again, why this sort of rigorous standard isn’t applied to more trademarks. Again, how can this ruling make sense in the same reality in which “comic-con” is not a descriptive phrase? The inconsistencies are maddening.