This Opinion Is Not
`a Precedent of the
`TTAB
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`Mailed: August 24, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
` _____
`
`Trademark Trial and Appeal Board
`_____
`
`In re Metropolitan Washington Airports Authority
`_____
`
`Serial No. 88201913
`_____
`
`
`Todd L. Juneau of Juneau & Mitchell,
`for Metropolitan Washington Airports Authority.
`
`Kamal S. Bal, Trademark Examining Attorney,
`Law Office 119 (Brett J. Golden, Managing Attorney).
`
`
`Before Zervas, Kuhlke and Pologeorgis, Administrative Trademark Judges.
`
`Opinion by Zervas, Administrative Trademark Judge:
`
`Metropolitan Washington Airports Authority (“Applicant”) seeks registration on
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`the Principal Register of the standard character mark FLYDULLES for “providing a
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`website featuring information in the field of air travel, airport parking, air travel
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`booking, flight tracking in the nature of providing flight arrival and departure
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`information, taxi and limousine transportation, airport light rail transportation, and
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`toll road transportation” in International Class 39.1 As specimens of use, Applicant
`
`
`1 Application Serial No. 88201913 was filed on November 20, 2018 under Section 1(a) of the
`Trademark Act, 15 U.S.C. § 1051(a), claiming first use anywhere and first use in commerce
`at least as early as June 20, 2018.
`
`

`

`Serial No. 88201913
`
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`submitted two pages from social media accounts and one page from Applicant’s
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`www.flydulles.com website.
`
`The Examining Attorney’s initial Office Action included a refusal to register
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`Applicant’s proposed mark under Trademark Act Sections 1, 2, 3, and 45, 15 U.S.C.
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`§§1051-1053, 1127, because the proposed mark’s use on the submitted specimens
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`– which included a hashtag (for online social media) and as a part of a domain name –
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`fails to indicate the source of Applicant’s services and to identify and distinguish them
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`from others.2
`
`In its ensuing Response, Applicant amended its application to seek registration
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`under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).3
`
`Eight months later, after the USPTO published the application for opposition,
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`Applicant filed a Statement of Use with four specimens of use, two from
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`www.flydulles.com, one
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`from Applicant’s Facebook page and one
`
`from
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`securereserve.com (“powered by Priceline.com”).4 Applicant claimed first use
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`anywhere on September 15, 2015 and first use in commerce on November 20, 2018.
`
`
`2 February 20, 2019 Office Action, TSDR 1-2.
`
` Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
`system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
`number preceding TTABVUE corresponds to the docket entry number, and any numbers
`following TTABVUE refer to the page(s) of the docket entry where the cited materials appear.
`Applicant’s appeal brief appears at 2 TTABVUE (resubmitted at 5 TTABVUE as a “substitute
`conforming Appeal Brief”) and the Examining Attorney’s brief appears at 6 TTABVUE.
`Citations in this opinion to the application record are to pages in the Trademark Status &
`Document Retrieval (“TSDR”) database of the United States Patent and Trademark Office
`(“USPTO”).
`
`3 February 21, 2019 Response to Office Action, TSDR 1.
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`4 October 10, 2019 Statement of Use, TSDR 1-6.
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`
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`-2-
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`

`

`Serial No. 88201913
`
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`The Examining Attorney again refused registration under Trademark Act
`
`Sections 1, 2, 3, and 45, stating:
`
`[T]he specimen shows the applied-for mark used as
`an Internet domain name in that each use of the
`wording “FLYDULLES” appears with “.COM” as
`“FLYDULLES.COM”. Therefore, the mark consists
`only of wording coupled with a non-source-
`identifying generic top-level domain (gTLD) and, as
`used on the specimen of record, would be perceived
`as the domain name where applicant’s website
`would appear on the Internet, and not as a
`trademark or service mark for particular goods
`and/or services. Accordingly, the applied-for mark
`fails to function as a service mark because it is used
`as a domain name in each instance and not used to
`indicate source.5
`
`With its June 14, 2020 filing,6 Applicant submitted seven specimens, which it
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`described as follows:
`
`[I]n specimen #1, the mark is shown on external
`signage for a cell phone waiting area. The mark
`FLYDULLES is used near services for obtaining
`flight information.
`
`In specimen #2, the mark is shown on wall mounted
`signage for airport transportation. The mark
`FLYDULLES is used near services for obtaining
`ground transport information.
`
`In specimen #3, the mark is shown on a display
`screen above a baggage
`claim. The mark
`
`
`5 October 28, 2019 Office Action, TSDR 1.
`
`6 The USPTO abandoned the application because Applicant did not file a timely response to
`the May 18, 2020 Office Action. Applicant filed a petition to revive the application (May 18,
`2020 Petition, TSDR 1), which was automatically granted, but in error. The USPTO then
`rescinded the grant of the petition to revive, and allowed Applicant time to respond. Applicant
`filed a complete response on June 14, 2020 with the specimens identified herein. On June 17,
`2020, the USPTO issued a notice of revival and the application was forwarded to the
`Examining Attorney for consideration of the June 14, 2020 submission.
`
`
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`-3-
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`

`

`Serial No. 88201913
`
`
`FLYDULLES is used near services for obtaining
`non-stop flights.
`
`In specimen #4, the mark is shown on a Facebook
`page near services for Airport terminal information
`in a video.
`
`In specimen #5, the mark is shown on applicant’s
`website near services for providing families who
`have travel anxiety a mock-air travel experience.
`
`In specimen #6, the mark is shown on applicant’s
`Twitter feed near services for air terminal services
`(pet programs).
`
`In specimen #7, the mark is shown on applicant’s
`Twitter feed near services for booking travel using
`the applicant’s mobile app, or booking travel
`through applicant’s website.7
`
`Applicant previously submitted specimen nos. 4-7 with its Statement of Use.
`
`The Examining Attorney issued a final Office Action on June 24, 2020, finding
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`Applicant’s specimens of use unacceptable under Trademark Act Sections 1, 2, 3, and
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`45, because the applied-for mark, as used on the specimens, is used merely as an
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`Internet domain name and does not function as a trademark or service mark to
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`indicate the source of Applicant’s services and to identify and distinguish them from
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`others. Applicant then filed a notice of appeal with the Board.8 The appeal is fully
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`briefed. We affirm the refusal to register.
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`7 June 14, 2020 Response to Office Action, TSDR 1.
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`8 1 TTABVUE.
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`
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`-4-
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`

`

`Serial No. 88201913
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`I. Evidentiary Issue
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`Applicant attached exhibits to its brief.9 Some of these exhibits had not previously
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`been submitted into the record. Our precedent is clear: New evidence attached to a
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`brief will only be considered if the nonoffering party (1) does not object and
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`(2) discusses the untimely evidence or otherwise affirmatively treats it as properly of
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`record. In re Litehouse Inc., 82 USPQ2d 1471, 1475 n.2 (TTAB 2007) (registrations
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`submitted for first time with applicant’s brief considered because examining attorney
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`did not object and instead presented arguments in rebuttal of this evidence); In re
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`Rodale Inc., 80 USPQ2d 1696, 1699 n.4 (TTAB 2006) (Board considered summary of
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`applicant’s prior registrations presented for the first time in its appeal brief because
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`the examining attorney did not object and also presented substantive arguments
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`regarding the registrations); see TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
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`PROCEDURE § 1207.03 (June 2021). In this case, although the Examining Attorney did
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`not object to the evidence, neither did he discuss them or otherwise affirmatively treat
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`them as properly of record. Accordingly, the untimely submitted evidence, which
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`Applicant submitted for the first time, will not be considered.10
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`II. Applicable Law
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`Sections 1, 2, 3, and 45 of the Trademark Act provide the statutory basis for
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`refusal to register subject matter that fails to function as a service mark. Specifically,
`
`
`9 2 TTABVUE 8-33.
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`10 Much of the new material submitted by Applicant pertains to Applicant’s argument
`regarding the alleged renown of the proposed mark. If a term fails to function as a source
`indicator, “no amount of evidence of acquired distinctiveness can overcome a failure to
`function refusal.” In re the Ride, LLC, 2020 USPQ2d 39644, at *10-11 (TTAB 2020).
`
`
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`-5-
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`

`

`Serial No. 88201913
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`Sections 1, 2, and 3 provide, inter alia, for the application and registration on the
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`Principal Register of trademarks by which the goods or services of the applicant may
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`be distinguished from the goods or services of others, and Section 45 defines a “service
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`mark,” in pertinent part, as “any word, name, symbol, or device, or any combination
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`thereof used by a person ... to identify and distinguish the services of one person ...
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`from the services of others and to indicate the source of the services, even if that
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`source is unknown.” A term, therefore, may be registered on the Principal Register
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`only if it functions as a mark.
`
`“[N]ot every designation adopted with the intention that it performs a trademark
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`function and even labeled as a trademark necessarily accomplishes that purpose ….”
`
`Am. Velcro, Inc. v. Charles Mayer Studios, Inc., 177 USPQ 149, 154 (TTAB 1973); see
`
`also Roux Labs., Inc. v. Clairol, Inc., 427 F.2d 823, 166 USPQ 34, 39 (CCPA 1970).
`
`“The critical inquiry in determining whether a designation functions as a mark is how
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`the designation would be perceived by the relevant public. To make this
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`determination we look to the specimens and other evidence of record showing how
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`the designation is actually used in the marketplace.” In re Eagle Crest Inc., 96
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`USPQ2d 1227, 1229 (TTAB 2010) (citations omitted).
`
`Thus, the central question in determining whether Applicant’s proposed mark
`
`functions as a service mark is the commercial impression it makes on the relevant
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`public (e.g., whether the term sought to be registered would be perceived as a mark
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`identifying the source of the services). In re Aerospace Optics, Inc., 78 USPQ2d 1861,
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`1862 (TTAB 2006) (“the mark must be used in such a manner that it would be readily
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`
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`-6-
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`

`

`Serial No. 88201913
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`perceived as identifying the specified goods [or services]. ... The mere fact that a
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`designation appears on the specimen of record does not make it a trademark. ... A
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`critical element in determining whether matter sought to be registered as a
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`trademark is the impression the matter makes on the relevant public.” (citations
`
`omitted)). See also In re Volvo Cars of North Am. Inc., 46 USPQ2d 1455, 1459 (TTAB
`
`1998); In re Remington Prods. Inc., 3 USPQ2d 1714, 1715 (TTAB 1987); In re
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`Morganroth, 208 USPQ 284, 287 (TTAB 1980).
`
`The Board discussed hashtags of the kind that appear in Applicant’s specimens in
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`In re i.am.symbolic, llc, 127 USPQ2d 1627 (TTAB 2018), stating:
`
`A hashtag is “a word or phrase that starts with the
`symbol # and that briefly indicates what a message
`(such as a tweet) is about.” According to Wikipedia,
`a hashtag “is a type of label or metadata tag used on
`social network and microblogging services which
`makes it easier for users to find messages with a
`specific theme or content. Users create and use
`hashtags by placing the hash character # (also
`known as the number sign or pound sign) in front of
`a word or unspaced phrase, either in the main text
`of a message or at the end. Searching for that
`hashtag will yield each message that has been
`tagged with it.” As such, the use of a hashtag in the
`social media context plays a functional role in
`facilitating searches on social media platforms.
`
`We agree that … a hash symbol or the word
`HASHTAG generally adds little or no source-
`indicating distinctiveness to a mark. We find, in this
`case, the hash symbol does not have source-
`indicating distinctiveness and at most simply
`appears as the social media tool to create a metadata
`tag.
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`Id. at 1632-33.
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`-7-
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`

`

`Serial No. 88201913
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`TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1202.18 (July 2021)
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`explains that a “‘hashtag’ is a form of metadata consisting of a word or phrase prefixed
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`with the symbol ‘#’ (e.g., #chicago, #sewing, and #supremecourtdecisions)”; and that
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`“[h]ashtags are often used on social-networking sites to identify or facilitate a search
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`for a keyword or topic of interest.” “Where a hashtag is used as part of an online social
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`media search term, it generally serves no source-identifying function, because it
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`‘merely facilitate[s] categorization and searching within online social media.’” In re
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`DePorter, 129 USPQ2d 1298, 1303 (TTAB 2019) (quoting TMEP Section 1202.18).11
`
`Regarding Internet addresses or URLs, the Board found in In re Eilberg, 49
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`USPQ2d 1955, 1957 (TTAB 1998), that a term that only serves to identify the
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`applicant’s domain name or the location on the Internet where the applicant’s website
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`appears, and does not separately identify the applicant’s services, does not function
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`as a service mark. The Board, in affirming the examining attorney’s refusal of
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`registration on the ground that the matter presented for registration did not function
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`as a mark, stated:
`
`
`11 See also TMEP § 1202.18:
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`Generally, the hash symbol and the wording HASHTAG do not provide any
`source-indicating function because they merely facilitate categorization and
`searching within online social media (i.e., social-media participants are
`directed to search a particular subject by typing, e.g., “hashtag ABC,” where
`ABC is the subject). See In re i.am.symbolic, llc, 127 USPQ2d 1627, 1633
`(TTAB 2018) (noting that “the use of a hashtag in the social media context
`plays a functional role in facilitating searches on social media platforms” and
`that “a hash symbol . . . generally adds little or no source-indicating
`distinctiveness to a mark”); Interactive Prods. Corp. v. a2z Mobile Office
`Solutions, Inc., 326 F.3d 687, 691, 66 USPQ2d 1321, 1327-28 (6th Cir. 2003)
`(finding that the post-domain path of a URL does not typically signify source).
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`
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`-8-
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`

`

`Serial No. 88201913
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`[T]he asserted mark, as displayed on applicant’s
`letterhead, does not function as a service mark
`identifying and distinguishing applicant’s legal
`services and, as presented, is not capable of doing so.
`As shown, the asserted mark identifies applicant’s
`Internet domain name, by use of which one can
`access applicant’s Web site. In other words, the
`asserted mark WWW.EILBERG
`.COM merely
`indicates the location on the Internet where
`applicant’s Web site appears. It does not separately
`identify applicant’s legal services as such.
`
`In a later case, In re Roberts, 87 USPQ2d 1474, 1479 (TTAB 2008), the Board held
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`that the applicant’s proposed mark “irestmycase” did not function as a mark for legal
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`services, where it was used only as part of an online email address by means of which
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`one may reach the applicant’s website.
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`Thus, “[i]f a mark is depicted as part of a URL, to constitute trademark use, it
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`must be more than merely an informational indication of the domain name address
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`used to access a website.” United Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039,
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`1047 (TTAB 2014). TMEP § 1215.02 explains:
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`Generally, when a trademark, [or] service mark …
`is composed, in whole or in part, of a domain name,
`neither the beginning of the URL (“http://www.”) nor
`the gTLD has any source-indicating significance.
`Instead, those designations are merely devices that
`every Internet site provider must use as part of its
`address. Advertisements for all types of products
`and services routinely include a URL for the website
`of the advertiser, and the average person familiar
`with the Internet recognizes the format for a domain
`name and understands that “http,” “www,” and a
`gTLD are a part of every URL.
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`TBMP § 1215.02(a) adds:
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`If the proposed mark is used in a way that would be
`perceived as nothing more than an Internet address
`
`
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`-9-
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`

`

`Serial No. 88201913
`
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`where the applicant can be contacted, registration
`must be refused. Examples of a domain name used
`only as an Internet address include a domain name
`used in close proximity to language referring to the
`domain name as an address, or a domain name
`displayed merely as part of the information on how
`to contact the applicant.
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`The specimens submitted by Applicant can be divided into three groups, (i) three
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`webpages from Applicant’s website (www.FlyDulles.com); (ii) external signage and a
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`display screen; and (iii) social media pages. We discuss each below.
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`Applicant’s webpages
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`The applied-for term appears as part of the URL www.flydulles.com/iad/wings-all-
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`program-washington-dulles on one webpage,12 and www.flydulles.com/iad/dulles-
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`international-airport on a second.13 We find that in both of these instances, the term
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`“flydulles” functions as part of an Internet address through which Applicant can be
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`contacted or where the consumer can obtain more information, and not as an
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`indicator of source of Applicant’s services.
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`The term also appears on the www.flydulles.com/iad/wings-all-program-
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`washington-dulles webpage as part of the image:
`
`
`12 June 14, 2020 Response to Office Action, TSDR 6; October 10, 2019 Response to Office
`Action, TSDR 2.
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`13 October 10, 2019 Response to Office Action, TSDR 3.
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`
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`-10-
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`

`

`Serial No. 88201913
`
`
`14
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`The webpage discusses “[t]he Wings for All program … designed specifically for
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`individuals with special needs and their families to help learn about air travel and to
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`ease the stress of flying.”15 As presented, FLYDULLES.COM is in a different font
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`than “Wings for All” and is placed at the bottom of the image. It appears adjacent to
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`a discussion of the “Wings for All” program on the webpage. We therefore find that
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`the term FLYDULLES.COM functions as a website address in Applicant’s webpages,
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`and not as the proposed FLYDULLES mark.
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`We note too Trademark Rule 2.51(a), 37 C.F.R. §2.51(a), which provides that “once
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`… a statement of use under §2.88 has been filed, the drawing of the mark must be a
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`substantially exact representation of the mark as used on or in connection with the
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`goods and/or services.” The representation of the mark as used is not a substantially
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`exact representation of the mark depicted in the drawing page of the application, due
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`to the addition of “.com.”
`
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`14 June 14, 2020 Response to Office Action, TSDR 6; October 10, 2019 Response to Office
`Action, TSDR 2.
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`15 Id.
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`-11-
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`

`

`Serial No. 88201913
`
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`Signage and Display Screen
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`Applicant submitted two images of external signage, one entitled “Cell Phone
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`Waiting Area,” and the other entitled “Taking Metro to Dulles?” and stating “Ride
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`the Washington Flyer Silver Line Express bus between Washington Dulles
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`International Airport and the Wiehle Avenue Metro Station, just minutes away.”16
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`The cell phone waiting area sign states, “[f]ollow us on Social Media” directly above
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`the URL “fb.com/FlyDulles,” and “[g]et updated flight information at FlyDulles.com
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`or by calling 709-572-6240.”17 The “Taking Metro to Dulles?” sign includes the
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`address “fb.com/FlyDulles” next to the Facebook logo. Both signs feature “FlyDulles”
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`as part of URLs. We find that as presented, “FlyDulles” would not be perceived as a
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`mark in either specimen.
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`We now turn to the display screen which includes the term “#FlyDulles” above the
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`phrase “[t]hree non-stop flights per week,” duplicated below:
`
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`16 June 14, 2020 Response to Office Action, TSDR 2-3.
`
`17 Id.
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`
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`-12-
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`

`

`Serial No. 88201913
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`As noted above, TMEP § 1202.18 explains that a “‘hashtag’ is a form of metadata
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`consisting of a word or phrase prefixed with the symbol ‘#’”; and that “[h]ashtags are
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`often used on social-networking sites to identify or facilitate a search for a keyword
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`18
`
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`18 Id., TSDR 4.
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`
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`-13-
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`

`

`Serial No. 88201913
`
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`or topic of interest.” The term “#FlyDulles” fails to function as a service mark because
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`the addition of the hashtag before Applicant’s proposed mark informs consumers that
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`they may search social media to obtain more information about the three flights per
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`week, ostensibly to India where the Ganges River is located. (“Ganges” appears on
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`the display.) Applicant, in submitting this specimen, evidently intends an association
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`with social media because the display says nothing about Applicant’s website
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`services. When used in advertising, a service mark must be associated with the
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`services in such a manner as would be sufficient to indicate to potential purchasers
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`or users of the services that the mark identifies the services and their source. See In
`
`re Universal Oil Prods. Co., 476 F.2d 653, 177 USPQ 456, 457 (CCPA 1973) (“The
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`minimum requirement is some direct association between the offer of services and
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`the mark sought to be registered therefor.”).
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`In addition, the signage and the display screen do not satisfy Trademark Rule
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`2.59(b), 37 C.R.F. § 2.59(b), because they were not accompanied by the required
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`verified statement that each specimen “was in use in commerce either prior to the
`
`filing of the statement of use or prior to the expiration of the deadline for filing the
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`statement of use.” Cf. In re WAY Media, Inc., 118 USPQ2d 1697, 1698-1701 (TTAB
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`2016) (considering “all 18 pages of specimens submitted” by the applicant in three
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`separate submissions, each supported by a verified statement regarding use, to
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`determine whether they showed use of the applied-for mark in commerce in
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`connection with the identified services).19
`
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`19 TMEP § 904.05 notes, however, that “[i]n some situations . . . an affidavit or declaration of
`use of substitute specimens is not necessary.” For instance, if the specimen originally filed is
`
`
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`-14-
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`

`

`Serial No. 88201913
`
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`Social Media Pages
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`Applicant’s Facebook page includes the term “@FlyDulles” under the term
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`“Washington Dulles International Airport.” The impression created by the
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`ampersand adjacent to the applied-for mark and its placement under the name of the
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`airport, near the top of the page and above links such as “Home,” Posts,” “Reviews,”
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`and “Videos,” is that it is the Facebook address for the airport. As such, it facilitates
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`a Facebook search for the Facebook page for the airport. The page also includes the
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`URL “FlyDulles.com/Fast” under the heading “Featured Video.” “FlyDulles” is clearly
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`part of an Internet address, identifying the location of the video.
`
`Turning to Applicant’s two Twitter pages which include references to “#FlyDulles”
`
`and “FlyDulles.com,” we find these references both function as addresses and not
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`marks. The term “#FlyDulles” appears as a heading on one Twitter page, identifying
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`the Twitter address for Applicant. The reference to the term “FlyDulles.com” is
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`clearly a URL, appearing under the heading “Dulles Airport (IAD)” and a description
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`of the page, “Official Twitter feed for Washington Dulles International Airport (IAD).
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`Monitored and updated during business hours. Your Journey Begins with Us.” Its
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`positioning informs those viewing the Twitter account how they can obtain additional
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`information about Applicant on the Internet.
`
`
`cut from a larger object, it is not necessary to provide an affidavit or declaration when a
`sample (or a photograph) of the complete object is submitted to corroborate the original
`specimen. In these circumstances, the additional specimen is supplemental, and the
`examining attorney may consider the original specimen to have been satisfactory. Id. This
`limited exception does not apply for this specimen.
`
`
`
`-15-
`
`

`

`Serial No. 88201913
`
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`Third-Party Webpage
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`Applicant also submitted a webpage from secure.rezserver.com.20 This webpage
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`includes a link stating “Return to FlyDulles.com.” This link, in no uncertain terms,
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`refers to “FlyDulles” as part of an internet address.
`
`Finally, we comment on one of Applicant’s original specimens filed with its
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`application, before it amended its application to seek registration under the intent-
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`to-use provisions of Section 1(b). It submitted three specimens, two of which it later
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`resubmitted and which we have discussed above. The remaining specimen is of a
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`social media posting, likely from Facebook. It includes the following image:
`
`The reference to “FlyDulles.com/ITH” is to a web address, where a consumer can
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`“Book now.” The reference to “FlyDulles.com”– barely legible at the bottom of the
`
`
`
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`20 Statement of Use, TSDR 3.
`
`
`
`-16-
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`

`

`Serial No. 88201913
`
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`image – is also to a web address, appearing under the logo for Dulles International
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`and “FlyDulles.com/ITH.”
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`In sum, based on our above review of the specimens of use submitted by Applicant,
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`we agree with the Examining Attorney that Applicant’s proposed mark fails to
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`function as a service mark.
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`Decision: The refusal to register Applicant’s mark is affirmed.
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`-17-
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