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Watch the Informational Refusals, Please!

Posted in Advertising, Articles, Audio, Branding, Look-For Ads, Marketing, Non-Traditional Trademarks, Sound, Trademarks, USPTO

Let’s suppose you conduct sightseeing tours using a tram car, maybe on the boardwalk in New Jersey. Maybe even a famous tram car service you’ve operated since 1949?

Let’s further suppose your passengers may get on or off anywhere along the route, as it travels along Wildwoods Boardwalk.

Would you think you could own a sound trademark, if your tram played, since 1971, a sound recording saying these cautionary words over and over again: Watch the tram car, please!“?

Back in June, during the heat of the season, it appears the operator of the tram car service believed it did, filing a federal service mark application for a sensory mark described this way: “The mark is a sound. The mark consists of the spoken phrase, ‘Watch the tram car, please’.”

I’m guessing the operator is having second thoughts now, given the USPTO’s registration refusal issued just last week, sounding the death knell to this baseless trademark claim:

“Registration is refused because the applied-for mark merely conveys an informational warning/cautionary message; it does not function as a service mark to indicate the source of applicant’s services and to identify and distinguish them from others.”

“Because consumers would regard the phrase as indicating an important command to give attention to the tram car so that nothing bad or unwanted happens, they would regard the phrase as informational rather than as a source indicator. This notion is reinforced by applicant’s specimen, which shows that the mark is presented to consumers as the tram car approaches, in the fashion of a warning. The specimen does not show the mark being presented to consumers at other non-warning times, such as when purchasing tickets or visiting a website. Instead, the sound is played when the consumers are in need of a safety warning that a heavy vehicle is moving toward the vicinity.”

Honestly, I’m mystified by this trademark claim. Really, putting aside the merits, what’s the point? What’s the purpose, the ultimate goal? Prevent others from issuing similar cautionary messages on competing transportation methods?

I suppose if there was some distinctive music in the background to carry the merely informational words, there might be some possibility of disclaiming the words and still having something left to own as a mark, but the spoken words alone, I’m not seeing it.

Perhaps the applicant confused “look for advertising” with their cautionary and merely informational “watch the tram” message?

I’m thinking there is no amount of evidence that can turn the Watch the tram car, please! phrase into a mark for tram car services, do you agree?

Is this a good reminder to watch the informational refusals, please, at least when making silly, overreaching non-traditional trademark claims?