From: Bibbins, Odessa
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`Sent: 5/4/2015 6:55:06 PM
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`To: TTAB EFiling
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`CC:
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`Subject: U.S. TRADEMARK APPLICATION NO. 85781180 - YOUTH PRIDE CHORUS - N/A - EXAMINER BRIEF
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`*************************************************
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`Attachment Information:
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`Count: 1
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`Files: 85781180.doc
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`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
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`U.S. APPLICATION SERIAL NOS. 85781180 and 85781188
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`MARKS: YOUTH PRIDE CHORUS
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` YOUTH PRIDE CHORUS
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`*85781180*
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`CORRESPONDENT ADDRESS:
` PHILLIP A ROSENBERG
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`GENERAL TRADEMARK INFORMATION:
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` KILPATRICK TOWNSEND & STOCKTON LLP
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`http://www.uspto.gov/trademarks/index.jsp
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` 1114 AVENUE OF THE AMERICAS THE GRACE
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` BUILDING, 21ST FLOOR
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` NEW YORK, NY 10036-7703
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`TTAB INFORMATION:
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`http://www.uspto.gov/trademarks/process/appeal/index.js
`p
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`APPLICANT: Big Apple Performing Arts, Inc.
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`CORRESPONDENT’S REFERENCE/DOCKET NO:
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` N/A
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`CORRESPONDENT E-MAIL ADDRESS:
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` NYTrademarks@KilpatrickTownsend.com
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`EXAMINING ATTORNEY’S APPEAL BRIEF
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`Applicant has appealed the examining attorney’s denial of its Requests for Reconsideration and
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`subsequent Final Refusals to register the standard character mark, YOUTH PRIDE CHORUS and the
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`stylized mark, YOUTH PRIDE CHORUS on the Principal Register. The Trademark Trial and Appeal Board,
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`on March 16, 2015 granted applicant’s requests for consolidation of appeals for the cases to be
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`presented on the same brief.
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` Applicant’s standard character and stylized marks, both contain the same terms, YOUTH PRIDE
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`CHORUS. Both marks are used with:
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`ENTERTAINMENT SERVICES, NAMELY, PROVISION OF LIVE MUSIC CONCERTS IN THE
`NATURE OF CHORUS SINGING; PRODUCTION OF SHOWS, NAMELY, CHORAL
`PERFORMANCES; EDUCATIONAL SERVICES, NAMELY, PROVIDING EDUCATIONAL
`SPEAKERS AND LIVE PROGRAMS IN THE FIELD OF ISSUES AFFECTING GAY, LESBIAN, BI
`SEXUAL AND TRANSGENDERED COMMUNITIES; TEACHER TRAINING IN THE FIELD OF
`PERFORMING ARTS PROGRAMS; CONSULTING IN THE FIELD OF PERFORMING ARTS
`PROGRAM DESIGN AND DEVELOPMENT
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`Registration has been refused on the grounds that: 1) the proposed marks are merely descriptive of the
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`identified services under §2(e)(1), 15 U.S.C. §1052(e)(1); and 2) applicant’s evidence is insufficient to
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`establish secondary meaning or acquired distinctiveness under § 2(f) of the
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`Trademark Act, 15 U.S.C. §1052(f).
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` FACTS
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` I
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` On November 16, 2012, applicant applied for registration on the Principal Register of the standard
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`character and stylized marks, YOUTH PRIDE CHORUS used with entertainment services, namely,
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`provision of live music concerts in the nature of chorus singing; production of shows, namely, choral
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`performances; educational services, namely, providing educational speakers, and live programs in the
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`field of issues affecting gay, lesbian, transgendered and bisexual communities; teacher training in the
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`field of performing arts programs; consulting in the field of performing arts program design and
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`development.
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` The examining attorney on March 13, 2013, refused registration of the marks on the Principal
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`Register because the proposed marks are merely descriptive under Trademark § 2
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`(e)(1), 15 U.S.C. §1052 (e)(1). In the alternative, registrations on the Supplemental Register were
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`suggested. On September 13, 2013, applicant, in response to the merely descriptive refusals submitted
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`arguments refuting the refusals. In the alternative, Applicant also submitted arguments and evidence in
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`support of 2(f) Claim of Acquired Distinctiveness in the marks, “based on continuous and exclusive use
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`of the mark for at least 10 years’ use in commerce”. The examining attorney determined on October 5,
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`2013, applicant’s evidence was insufficient to support the §2(f) Claim of Acquired Distinctiveness and
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`insufficient to establish secondary meaning in the highly descriptive marks, YOUTH PRIDE CHORUS, and
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`subsequently issued FINAL refusals on May 7, 2015. Applicant filed Requests for Reconsideration after
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`the FINAL Actions and provided additional cumulative evidence and arguments in support of its claim of
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`secondary meaning in the proposed marks. This appeal follows the examining attorney’s denial of
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`applicant’s Requests for Reconsideration on December 6, 2014.
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`II ISSUES
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` The issues on appeal are:
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`(1)
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`(2)
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`Whether applicant’s proposed standard character mark, YOUTH PRIDE
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`CHORUS and stylized mark, YOUTH PRIDE CHORUS are merely descriptive of
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`applicant’s services under Trademark Act §2(e)(1):
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`Whether applicant’s 5 year’s use in commerce, and/or applicant’s “at least
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`10 years” use in commerce is sufficient to establish acquired distinctiveness under
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`§2(f), and overcome the §2(e)(1) Descriptiveness Refusal where the proposed marks,
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`YOUTH PRIDE CHORUS are highly descriptive; and
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`(3)
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`Whether applicant’s “actual evidence” establishes secondary meaning in the
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`proposed marks, YOUTH PRIDE CHORUS to support a claim of acquired
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`distinctiveness and overcome the §2(e)(1) Descriptiveness Refusals.
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`III ARGUMENTS
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`(1) APPLICANT’S PROPOSED MARKS, “YOUTH PRIDE CHORUS” IN STANDARD CHARACTER, AND
`“YOUTH PRIDE CHORUS” IN STYLIZED FORM ARE MERELY DESCRIPTIVE FOR THE SERVICES,
`“ENTERTAINMENT SERVICES, NAMELY, PROVISION OF LIVE MUSIC CONCERTS IN THE
`NATURE OF CHORUS SINGING; PRODUCTION OF SHOWS, NAMELY, CHORAL
`PERFORMANCES; EDUCATIONAL SERVICES, NAMELY, PROVIDING EDUCATIONAL SPEAKERS
`AND LIVE PROGRAMS IN THE FIELD OF ISSUES AFFECTING GAY, LESBIAN, BI SEXUAL AND
`TRANSGENDERED COMMUNITIES; TEACHER TRAINING IN THE FIELD OF PERFORMING ARTS
`PROGRAMS; CONSULTING IN THE FIELD OF PERFORMING ARTS PROGRAM DESIGN AND
`DEVELOPMENT”, AND ARE NOT ELIGIBLE FOR REGISTRATION ON THE PRINCIPAL REGISTER.
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` A mark is merely descriptive under Trademark § 2(e)(1), 15 U.S.C. §1052(e)(1), it if merely
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`describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s
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`services. See e.g., In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005)
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`(citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).
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` Applicant’s proposed marks, YOUTH PRIDE CHORUS are comprised of the descriptive phrase,
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`(YOUTH PRIDE) and generic term, (CHORUS), which retains its descriptiveness/genericness when
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`combined. Here, the applicant seeks registration of the marks, YOUTH PRIDE CHORUS, which are highly
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`descriptive of characteristics and features of applicant’s entertainment services, namely, provision of live
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`music concerts in the nature of chorus singing; production of shows, namely, choral performances;
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`educational services, namely, providing educational speakers, and live programs in the field of issues
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`affecting gay, lesbian, transgendered and bisexual (hereinafter, “LGBT”) communities; teacher training in
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`the field of performing arts programs; consulting in the field of performing arts program design and
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`development. When the marks are encountered by consumers in connection with the services, the
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`marks, YOUTH PRIDE CHORUS convey characteristics of the chorus , particularly, the age group and
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`sexual orientation of its members; as well as the subject matter of the educational services, namely,
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`LGBT issues, delineated in the identification of services. The phrase YOUTH PRIDE (See definition –
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`page 4, FINAL dated 05/07/2014) is defined in Wikipedia, the Free Encyclopedia, as:
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`“an extension of the gay pride and LGBT social movements, promotes equality amongst young
`members (usually above the age of consent) of the lesbian, gay bisexual, transgender, intersex and
`questioning (LGBTIQ) community.”1
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` Applicant also provided a definition of the term, PRIDE in the record, from WIKIPEDIA, the free
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`encyclopedia, see page 23 of Applicant’s response dated, 09/13/2013 which describes, LGBT PRIDE, on
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`page 28 as:
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`“Gay PRIDE refers to a world wide movement and philosophy asserting that lesbian,
`bay, bisexual, and transgender (LGBT) individuals should be proud of their sexual
`orientation and gender identity.”
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`YOUTH describes the period between childhood and maturity, especially adolescence and early
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`adulthood. See definition – page 2, FINAL dated 05/07/2014. Applicant’s website also describes the
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`phrase YOUTH PRIDE CHORUS as “the voices of lesbian, gay, bisexual, transgender and straight youth
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`ages 13-22 in the movement for change.” See FINAL, page 3 dated 05/07/2014.
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`The trademark examining attorney previously provided in the record, See FINAL, page 1, dated
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`05/07/2014, evidence that the phrase, YOUTH PRIDE refers to the LGBT community:
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`1 Lisa Neff, “Pride by Many Other Names: Whether it’s a Dyke March, Black Gay Pride, or a Youth Rally, Gay
`Men and Lesbians are Finding New Ways to Celebrate Their Diversity”, pages 50-55, The Advocate, June 24,
`2002. WIKIPEDIA The Free Encyclopedia.
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`“NoVA Youth Pride exists to provide resources and support to Lesbian, Gay, Bisexual,
`Transgender, Queer, and Questioning students from the Northern Virginia area.”
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`“D.C.'s 16th annual Youth Pride celebration went ahead as planned Saturday, April 28,
`with periods of cloudiness and sunshine, but none of the showers that have forced
`postponements in the past. The Dupont Circle event, which featured booths from
`various LGBT and ally organizations, performances by local entertainers and several
`speakers, including D.C. Congresswoman Eleanor Holmes Norton (D), was organized by
`Youth Pride Alliance, a nonprofit organization for ''Lesbian, Gay, Bisexual,
`Transgender, Queer, Questioning, and Ally youth empowerment.”
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`“Massachussetts Youth Pride is an annual one-day celebration dedicated to
`celebrating LGBTW youth in the Commonwealth of Massachussetts.”
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`Lastly, the term, CHORUS describes a body of singers who perform choral compositions, usually having
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`more than one singer for each part, (see definition – FINAL page 15, dated 05/07/2014), and is generic
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`for the live music concerts in the nature of chorus singing, and production of shows, namely, choral
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`performances, a key feature of applicant’s services, and disclaimed. The name of a key feature of
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`applicant’s services may be generic for those services. See In re Eddie Z’s Blinds & Drapery, Inc. 74
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`USPQ2d 1037, 1042 (TTAB 2005) (holding BLINDSAND DRAPERYCOM generic for online retail store
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`services featuring blinds, draperies, and other wall coverings).
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` Marks comprising more than one element must be considered as a whole and should not be
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`dissected; however, a trademark examining attorney may consider the significance of each element
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`separately in the course of evaluating the mark as a whole. See In re Hotels.com, L.P., 573 F.3d 1300,
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`1301, 1304, 1306, 91 USPQ2d 1532, 1533, 1535, 1537 (Fed. Cir. 2009) holding HOTELS.COM generic for
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`information and reservation services featuring temporary lodging when noting that the Board did not
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`commit error in considering “the word, ‘hotels’ for genericness separate from the ‘.com’ suffix”).
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`Accordingly, applicant’s marks, YOUTH PRIDE CHORUS are descriptive of its services, therefore, the
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`refusal to register the marks on the Principal Register under the 2(e)(1) Descriptiveness Refusal of the
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`Trademark Act should be affirmed.
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`2. APPLICANT’S USE OF THE MARK FOR MORE THAN 5 YEARS AND/OR AT LEAST 10
`YEARS
`IN COMMERCE
`IS
`INSUFFICIENT
`TO
`ESTABLISH ACQUIRED
`DISTINCTIVENESS UNDER §2(F) AND OVERCOME THE §2(E)(1) DESCRIPTIVENESS
`REFUSAL BECAUSE THE MARKS, “YOUTH PRIDE CHORUS” IN STANDARD
`CHARACTER AND “YOUTH PRIDE CHORUS” STYLIZED ARE HIGHLY DESCRIPTIVE
`WITHIN THE MEANING OF §2(E)(1) OF THE TRADEMARK ACT
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`Section 2(f) of the Trademark Act, 15 U.S.C. §1052 provides that “proof of substantially exclusive and
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`continuous use” of a designation “as a mark by the applicant in commerce for the five years before the
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`date of which the claim of distinctiveness is made” may be accepted as prima facie evidence that the
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`mark has acquired distinctiveness as used with applicant’s services in commerce. See also 37 C.F.R. §
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`2.41(b).
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`Regarding the length of use of applicant’s marks, YOUTH PRIDE CHORUS, applicant
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`states it has been using the standard character mark in commerce, for at least 10 years. Applicant’s
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`filing date is November 16, 2012, and the dates of use are April 30, 2003, therefore, applicant only used
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`the standard character marks in commerce for 9 years, 6 months and 17 days, at the time of the
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`statement. Applicant states it has been using the stylized YOUTH PRIDE MARK for at least 10 years,
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`however, the filing date is November 16, 2012, and the dates of use are September 30, 2008, therefore
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`applicant’s use is 4 years, 1 month and 16 days. Nine and one-half years and/or 4 years, 1 month and 16
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`days is not a substantial period of time to educate consumers as to the trademark significance of the
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`proposed mark, because it is highly descriptive. See In re Noon Hour Food Prods., Inc., 88 USPQ2d 1172
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`(TTAB 2008) (finding, despite applicant claim of use in commerce for almost one hundred years, as well
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`an “inadvertently cancelled” seventy-year old registration for the mark BOND-OST for cheese, current
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`evidence clearly showed the mark was generic for the goods, and assuming arguendo that BOND-OST is
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`not generic, that applicant had failed to establish acquired distinctiveness of the highly descriptive mark.
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`Section 1212.05(a) states in part “ – the greater the degree of descriptiveness the term, has, the
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`heavier the burden to prove it has attained secondary meaning. In re Bongrain Int’l Corp., 894 F.2d
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`1316, 1317 n.4, 13 USPQ2d 1727, 1728 n.4 (Fed. Cir. 1990) (citing Yamaha Int’l Corp. v. Hoshino Gakki
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`Co., 840 F.2d 1572, 1581, 6 USPQ2d 1001, 1008 (Fed. Cir. 1988)). Accordingly, if the mark is highly
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`descriptive of the services named in the application, the statement of five years’ use alone will be
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`deemed insufficient to establish acquired distinctiveness. See Alcatraz Media, Inc. v. Chesapeake Marine
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`Tours Inc., 107 USPQ2d 1750, 1766 (TTAB 2013) (“Given the highly descriptive nature of registrant’s
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`mark [ANNAPOLIS TOURS], continuous use alone since 1992 would not be sufficient to establish
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`acquired distinctiveness.”).
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`In applicant’s marks, YOUTH PRIDE CHORUS, the phrase YOUTH PRIDE conveys the commercial
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`connotation of an LGBT youth choir. In applicant’s Brief, Page 17, applicant acknowledges that the
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`terms, YOUTH PRIDE CHORUS convey a commercial impression which also defines the meaning of each
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`term, in its marks:
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`“The only conceivable commercial impression left by YOUTH PRIDE CHORUS is that it
`is a source identified for applicant’s young persons’ (YOUTH) vocal ensemble2 group
`(CHORUS), which is one of many different LGBTIQA3 (PRIDE) young persons’ vocal
`ensemble groups.”
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`Accordingly, the marks, YOUTH PRIDE CHORUS contain highly descriptive terms, each which conveys the
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`same individual and collective meaning, and describes features of applicant’s services. Given the fact
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`2 Vocal
`singers. The Free Online Dictionary
`of
`group
`ensemble. Choir,
`a
`http://encyclopedia2.thefreedictionary.com/Vocal+ensemble
`3 LGBTQIA. Lesbian, gay, bisexual, transgender, questioning, intersex, and asexual. Online Urban Dictionary.
`http://www.urbandictionary.com/define.php?term=LGBTQIA
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`by Farlex.
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`that applicant’s mark is highly descriptive of its services, the refusal to register YOUTH PRIDE CHORUS
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`on the Principal Register under 2(e)(1) of the Trademark Act should be affirmed.
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`3. APPLICANT’S “ACTUAL EVIDENCE” DOES NOT ESTABLISH SECONDARY MEANING
`IN THE MINDS OF THE PUBLIC OR ACQUIRED DISTINCTIVENESS IN THE MARKS,
`YOUTH PRIDE CHORUS TO OVERCOME THE 2(E)(1) DESCRIPTIVENESS REFUAL
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`The burden of establishing that a mark has acquired distinctiveness is on the applicant.
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`Yamaha Int’l Corp. v. Yoshino Gakki Co., 840 F.2d 1572, 1578-79, 6 USPQ2d 1001, 1004 (Fed. Cir. 1988);
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`To establish secondary meaning, applicant must show that the purchasing public has come to view the
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`proposed marks, YOUTH PRIDE CHORUS as an indicator of origin. This has not been done in the
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`present case.
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` To support the claim of acquired distinctiveness, applicant may respond by submitting additional
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`evidence. The following factors are generally considered when determining acquired distinctiveness:1)
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`length and exclusivity of use of the mark in the United States by applicant; (2) the type, expense and
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`amount of advertising of the mark in the United States; and (3) applicant’s efforts in the United States to
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`associate the mark with the source of the services, such as unsolicited media coverage and consumer
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`studies. See In re Steelbuilding.com 415 F.2d 1293, 1300, 75 USPQ2d 1420, 1424 (Fed Cir. 2005). A
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`showing of acquired distinctiveness need not consider all of these factors and no single factor is
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`determinative.
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`In an effort to show secondary meaning in the mark, YOUTH PRIDE CHORUS, applicant
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`submitted declarations by its Executive Director, Peter Criswell regarding ticket sales, advertising, and 48
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`unsolicited media mentions, articles and interviews. The following four excerpts are taken from the
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`supporting documentation provided in Exhibit C in Applicant’s Brief.
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`Out Magazine Article
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`All Together Now – A new chorus for GLBT youth prepares a holiday concert in New
`York
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`“People seemed to just be ecstatic that a chorus like this even existed” says conductor
`Jeffrey Maynard, one of the many individuals responsible for forming the Youth Pride
`Chorus, a group for lesbians, gays, bisexuals and transgendereds that even includes
`one or two straight individuals.”
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`Paybill.com
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`New York city’s Gay Men’s Chorus celebrates the season with “Twisted Holiday”
`December 12 at Carnegie Hall.
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`“The 8:00 pm concert will also boasts the Youth Pride Chorus, the Ambassador Chorus
`and Uptown Express”
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`Gay City News
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`Sunday Dec. 21
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`Christmas Chorus
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`“The Youth Pride Chorus, a program of the New York City Gay Men’s Chorus and the
`LGBT Community Center join special guests Uptown Express, Mystery Date, the
`Ambassador Chor and the New York City Gay Men’s Chorus for ‘Shining Season: A
`Holiday Concert’”
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`YPC on NY1 (June 2004) YouTube
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`Uploaded on Aug 18, 2009
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`An old news clipof (the people behind) Youth Pride Chorus on NY!
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`As New Yorker of the Week
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`14 to 22 year olds
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`There is no information in any of the above articles that conveys to purchasing consumers that YOUTH
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`PRIDE CHORUS is used to identify the origin, Big Apple Performing Arts, Inc., of the services. See In re
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`Chevron Intellectual Prop. Group LLC, 96 USPQ2d 2026, 2031 (TTAB 2010) (finding evidence of acquired
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`distinctiveness deficient in part because of the lack of advertisements promoting recognition of pole
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`spanner design as a service mark).
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` Regarding the type, expense and amount of advertising for the marks, YOUTH PRIDE
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`CHORUS, applicant states it has a distribution of at least 5,000 palm cards prominently displaying
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`applicant’s YOUTH PRIDE CHORUS marks to advertise every performance; performance of at least two
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`ensembles per year for the last 10 years, however, there is no mention of advertising and promotion
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`costs, which is not persuasive. Applicant also references an inaugural performance at Carnegie Hall in
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`New York City which sold approximately 2,000 tickets, however, this statement is not supported by a
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`numeric reference which ties this effort to an increase in sales and concurrently an increase in
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`recognition by the consuming public of the mark, YOUTH PRIDE CHORUS, as the source of the services.
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`Applicant also provided affidavits from “Robin Godfrey, Elven Hickmon, and Christopher Verdugo, who
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`all occupy leadership roles in the LGBTIQA youth choral ensemble”, See Applicant’s Brief, Exhibit 4.
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`“In the course of their work in the trade, each for more than five (5) years, they have
`come to recognize YOUTH PRIDE CHORUS as a mark that is associated exclusively with
`applicant and applicant’s services, and in their opinion, the YOUTH PRIDE CHORUS
`mark has become well-known to the LGBTIQA choral arts sector and consumers of
`such services.”
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`Because these affidavits were sought and collected by applicant from persons who deal with applicant
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`in providing similar services, the evidence is not altogether persuasive on the issue of how the average
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`customer of the consuming public for entertain and educational services perceives the wording, YOUTH
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`PRIDE CHORUS. Proof of distinctiveness also requires more than proof of the existence of a relatively
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`small number of people who associate a mark with the applicant. See In re The Paint Prods Co., 8
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`USPQ2d 1863, 1866 (TTAB 1988) (“Because these affidavits were sought and collected by applicant from
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`ten customers who have dealt with applicant for many years, the evidence is not altogether persuasive
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`on the issue of how the average customer for paints perceives the words, “PAINT PRODUCTS CO.’ in
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`conjunction with paints and coatings.”).
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` Lastly, applicant argues the general consuming public is not the relevant segment of the
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`purchasing public. The trademark examining attorney respectfully disagrees. The average4 or general
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`consumer of entertainment and educational services provided by applicant is the relevant segment of
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`the purchasing public. It is respectfully requested that the Board take judicial notice of the online
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`dictionary, thesauras and encyclopedia definitions footnoted in this Brief. The Trademark Trial and
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`Appeal Board may take judicial notice of dictionary definitions that are (1) available in a printed format,
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`(2) are the electronic equivalent of a print reference work, or (3) have regular fixed editions. TBMP §
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`1208.04. See In re Petroglyph Games, Inc., 91 USPQ2d 1332, 1334 n.1 (TTAB 2009) (taking judicial notice
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`of definition from Dictionary. Com, because it was from The Random House unabridged Dictionary.)
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`Therefore, applicant has failed to establish acquired distinctiveness in the marks,
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`YOUTH PRIDE CHORUS.
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`
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` IV CONCLUSION
`
`
`4 Average. General
`for average. Collins Online Thesaurus, © Collins 2015.
`is a
`synonym
`http://www.collinsdictionary.com/dictionary/english-thesaurus/average?showCookiePolicy=true
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`For these reasons, the Board is respectfully requested to affirm the refusal to register, the standard
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`character and special character marks, YOUTH PRIDE CHORUS on the Principal Register under
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`Trademark Act § 2(e)(1), 15 U.S.C. §1052, on the grounds that the proposed marks are merely
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`descriptive of applicant’s entertainment services, namely, provision of live music concerts in the nature
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`of chorus singing; production of shows, namely, choral performances; educational services, namely,
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`providing educational speakers, and live programs in the field of issues affecting gay, lesbian,
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`transgendered and bisexual communities; teacher training in the field of performing arts programs;
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`consulting in the field of performing arts program design and development; that five years’ and/or at
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`least 10 years of substantially exclusive and continuous use in commerce is not sufficient to establish
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`acquired distinctiveness under § 2(f) of the Tradeamrk Act and overcome the 2(e)(1) Descriptiveness
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`Refusals, because applicant’s marks are highly descriptive; and that applicant’s “actual evidence” does
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`not establish secondary meaning or acquired distinctiveness under §2(f) of the Trademark Act to
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`overcome the 2(e)(1) Descriptiveness Refusal.
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`Respectfully submitted,
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`

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`/Odessa Bibbins/
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`Attorney Advisor
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`Law Office 118
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`Odessa.Bibbins@USPTO.GOV
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`571-272-9425 :Telephone
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`571-273-9425: Fax
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`
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`Thomas G. Howell
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`Managing Attorney
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`Law Office 118