Florists’ Transworld Delivery Inc. (the “Applicant”) attempted to register its mark, a slogan, SAY IT YOUR WAY for two types of services. Only one service is at issue on appeal before the Trademark Trial and Appeal Board (the “Board”). The Examining Attorney refused the application for “creating an on-line community for registered users to participate, in discussions, get feedback from their peers, form communities, and engage in social networking featuring information on flowers, floral products, and gifts” in international class 42. The refusal was based on the applicant’s specimen failing to show the mark used with the services identified in Applicant’s trademark application. Applicant attempted to submit a substitute specimen that also failed to evidence the mark used with the relevant services. See In re Florists’ Transworld Delivery, Inc. Serial No. 85164876 (May 11, 2016).
Applicant’s specimen consisted of pages from his Twitter account located at https://twitter.com/ftdflowers. Applicant argued that the pages reflected discussions between the Applicant, its fans and customers. He further argued that Twitter is a social media service that permits its users to post short messages and for the messages to be viewed by those who follow that user’s account. In circumstances of a service mark application, the specimen must show the trademark as used in the sale or advertising of the services. See In re Graystone Consulting Assocs., Inc. 115 USPQ2d 2035 (TTAB 2015), where it was held that a service mark must be used in a manner that is readily perceived as identifying the services by relevant consumers. This is determined by a thorough review of the specimens.
Service mark specimens typically consist of advertising, promotional, and informational material and these may include pages from a website or pages from a Twitter account. However, the pages must show the mark in the advertisement of the services identified in the trademark application and create an association between the mark and the services. Use of the trademark must also identify and distinguish the services. This point is illustrated in the case In re Johnson Controls, Inc. 33 USPQ2d 1320 (TTAB 1994).